The Vindication of Creigh Deeds

With State Senator Mark Obenshain’s decision to concede the recount of the November 5, 2013 General Election for Attorney General of Virginia, and not to ask the General Assembly to overturn the result of the election in a contest, the post-election proceedings are complete and State Senator Mark Herring will be the next Attorney General of Virginia.

Democrats dominated Virginia politics for many decades, until Republicans took control in the 1990s, but now close elections are the new normal.  In the past eight years, five statewide or congressional elections have finished inside the statutory margin for a recount, and three have been recounted.*

With each new close election we canvass or recount, we learn more about Virginia’s system of voting, our election laws, and our post-election processes.  Here are five lessons learned, or reaffirmed, by the recount of the 2013 Attorney General election.

1.  Elections Are Intended To Be Perfect Processes, But They Are Implemented By Imperfect Humans.  There are vigorous debates about the policy merits of some voting laws, but there can be no denying that laws prescribe detailed voting and canvassing procedures, are supplemented by many pages of regulations and guidance documents, and are further informed by practice and accumulated experience.

And yet, mistakes are made.  Many, many mistakes.  In every election, every year.  Hundreds if not thousands of them in this year alone.  Those mistakes are simply spotlighted in close elections, when election officials, attorneys, volunteers, and now bloggers and Tweeters identify, scrutinize and correct the mistakes in real time.

We can anticipate more close elections in years to come.  While we always should strive to learn from our mistakes and improve the accuracy of our system of voting, at some point we must become comfortable with these facts: imperfect human beings are administering that system, they are going to make mistakes, and the reason we have post-election processes in close elections is to correct them.  And in that regard, post-election processes—even ones that don’t change the outcome of elections—safeguard the accuracy and integrity of our elections.  Pressuring candidates to forgo them undermines those important interests.

2.  It’s A Round World.  The defining issue in the 2005 recount of Virginia’s Attorney General Election was whether all, some or none of the optical scan ballots would be hand-counted.  Virginia law at the time provided that recount officials should look at the tape of results produced by the optical scanners on election night—and that those results should be accepted as conclusive unless the tape was unclear or the court requested otherwise.

State Senator Creigh Deeds, on the short-end of the certified result heading into the recount, believed that thousands of voters had marked their ballots in such a way that the optical scan machines would not be able to read them—but that if recount officials viewed those ballots and counted them by hand, the voters’ intent would be clear.  Senator Deeds asked the recount court to order statewide optical rescanning, which the court denied, and then requested limited optical rescanning in selected jurisdictions.

The 2005 recount court granted Senator Deeds’ more limited request in even more limited part, and ordered rescans and hand-counts in just a few jurisdictions.  After Senator Deeds lost the recount, he introduced a bill to reverse Virginia’s recount law and require all optical scan ballots to be re-scanned, with a hand-count for each ballot on which the scanners detected no vote.  As a young lawyer on then-Delegate Bob McDonnell’s recount legal team, I reflexively voiced strong opposition to Senator Deeds’ bill.  Bill Hurd, McDonnell’s brilliant lead recount litigator, counseled otherwise:  “Not so fast. You never know when you’re going to be litigating on the other side of one of these certified results.”  Three years later, in the Fifth Congressional District recount, I was.  This year, I was again.

Senator Obenshain told a similar story at this year’s Republican Party of Virginia Advance.+  When Senator Deeds’ recount bill came before the Senate of Virginia for a vote, Senator Obenshain was one of only two State Senators to vote against it and oppose true recounts of optical scan ballots.  Now, he said, he was glad he lost that vote.

After every recount or near-recount, there is much discussion about changing post-election processes, and I’m sure there will be this year, too.  Oftentimes, that discussion divides along the lines of the election just concluded.  In such a discussion, partisans would do well to remember that the tables can turn quickly, and to consider policies with respect to their impacts in the next election, instead of in the one immediately past.

3.  There Are Uncounted Votes Out There.

In 2005, even from the very limited rescanning and hand-counting of optical scan ballots that the recount court allowed in response to Senator Deeds’ motion, both candidates gained votes.  (Now-Governor McDonnell just gained more.)  In 2008, in the Fifth Congressional recount, both candidates gained dozens of votes.  (Now-Former Congressman Virgil Goode gained more, but not enough.)  This year, in the first statewide recount since Senator Deeds’ bill became law, both candidates gained many hundreds of votes.  (Attorney General-Elect Herring gained more.)

Senator Deeds was right.  There are uncounted votes in every election.  They reside on optical scan ballots which voters marked in such a way that their intentions would be clear to any reasonable person who viewed the ballots, but not to a machine.  And having just spent three days reviewing 300,000 optical scan ballots in Fairfax County, I can attest that voters find many different ways to mark their optical scan ballots.  How hard is it to fill in the bubble next to a candidate’s name?  Apparently, harder than you might think—for voters from both parties.  Throughout three days of recounting in Fairfax County, voters’ ballot-based expressions of intent provoked much thought, gave rise to bewildered expressions, and prompted smiles and laughs.

A recount should be something more than a mere retabulation of tapes produced by machines on election night.  That’s already done in the canvass process.  In a true recount, ballots should be viewed and votes should be recounted.~

4.  The More Important Contest Standard Is A Practical & Political One, Not A Legal One.

The 2013 Attorney General Election was, prior to the recount,the closest statewide election in Virginia history.  Much discussion and debate in recent weeks centered on whether Senator Obenshain would or should contest the election result and ask the General Assembly to overturn it based upon alleged irregularities in the conduct of the election.  Immediately following Senator Obenshain’s concession, some speculated that the margin between the candidates simply grew too large to be made up in a contest.  I think the analysis is more complicated than that.

Many types of mistakes occur in every election. By definition, these mistakes in the administration of an election are irregularities, in that they are departures from established procedures. Most are unintentional, such as a failure by precinct-level election officials to keep an accurate tally of the number of voters who were allowed to vote in a precinct, resulting in a discrepancy between the number of votes cast in the precinct and the number of voters marked as having voted there.  Some are more intentional, such as decisions by election administrators across Virginia to follow or not follow certain guidance, to apply or not apply certain standards.Nearly all are capable of being quantified, at least arguably, so that the impact of the mistake can be given a numeric value.

Indeed, in any statewide election decided by a few or even several hundred votes, it would not be hard for a team of lawyers to identify enough irregularities, quantify them, and arrive at a number large enough to cover the spread.  (This is NOT an allegation or insinuation regarding the election just concluded.  It is an observation with respect to all elections generally.)  That a candidate elected not to attempt to do so in an election this close, with a highly partisan General Assembly waiting to receive a contest and perhaps overturn the result of the election, should be seen as an indication that there is more to the analysis than just the nature and quantum of irregularities.  Practical and political considerations are just as if not more important.  Does a candidate want to level legal accusations against election officials, sometimes within his or her own party?  Does a candidate want to put voters through such a process?  Does a candidate want to take office in such a way?  And if so, could such a candidate ever get anything done while in office?

Because there are mistakes and irregularities in every statewide election, and because a statewide election never before has been contested to the Virginia General Assembly—not even one as close as the one we just had—at this point, it seems that mere mistakes and irregularities in the administration of an election are not enough to give rise to a contest.

5.  There Is A Virginia Way.

After the recount’s first day in Fairfax County, election law professor Michael McDonald tweeted:  “A bright sign from today’s #VAAG recount action: no sign Rep lawyers challenging all Herring votes to create perception Obenshain winning.”  To which @greenythebeast replied, “Don’t give them any ideas.”

In fact, that’s just not the way we do things in Virginia.  We’ve had enough consequential recounts in the past decade, both parties have now been on both sides of a certified result, and neither side ever has employed that type of tactic.  It’s not that we’re not aware of it—we’ve obviously watched and learned from recounts in other states—but that’s just not the Virginia Way.

From the three days I spent in Fairfax County this week, and from reports I received from jurisdictions across Virginia, the 2013 recount was orderly and efficient, the lawyers were competent and fair, and the recount officials and partisan observers overwhelmingly were well-meaning and collegial.  From experience, I can say the same thing about the close elections in 2005, 2006, 2008 and 2010.  That’s a manner of doing things that Virginians can be proud of and should guard carefully—as it breeds honesty and accuracy in the proceedings, and fosters public faith and confidence in the integrity of the result.

(Disclosure:  I was very honored to represent Senator Obenshain in Fairfax County’s recount proceeding, but these thoughts are solely mine, are not attributable to Senator Obenshain or any other member of his legal or political team, and do not reveal privileged, confidential or inside information, strategy or thinking.  This is especially true of the discussion regarding the standard for a contest in point #4.)

*  2005 Attorney General (recount, McDonnell def. Deeds), 2006 U.S. Senate (canvass, Webb def. Allen), 2008 5th Congressional District (recount, Perriello def. Goode), 2010 11th Congressional District (canvass, Connelly def. Fimian), 2013 Attorney General (recount, Herring def. Obenshain).

+  In Virginia, Republicans never retreat.  They only advance.

~  Would Senator Deeds have won the 2005 Attorney General recount, had he gotten his way and been granted statewide optical rescanning and hand-counting?  I don’t think so.  Senator Deeds provided the recount court with a detailed statistical analysis showing the localities and precincts in which uncounted votes most likely resided.  The court granted his request for the most obvious precincts—those with the largest numbers of potential uncounted votes—and when the rescanning and hand-counting was done, he actually lost net votes (that is, he fell further behind McDonnell’s lead).  I don’t think there is any reason to believe he could have closed the gap by rescanning and hand-counting the rest of the Commonwealth—there were, I believe, far fewer optical scan ballots used in 2005 than in 2013, and again, his request was granted for those precincts with the largest numbers of “undervotes”—but I wouldn’t fault him for thinking he might have done so or still wanting to have tried.

#  By intentional, I mean that the decision itself was made knowingly and willfully—not that the effect of the decision was intended to influence the outcome of the election.  Indeed, I don’t think intent is a required element of a contest in Virginia.  I think the question is one of effect and impact.