Joy Comes In The Morning

In the early morning hours of November 8, 2000, Al Gore telephoned George W. Bush to retract his concession in the presidential election and famously told him, “You don’t have to get snippy about this.” Neither candidate spoke publicly that night, but in close elections since, candidates have taken the stage to deliver a new kind of Election Night speech — a speech by a candidate who would not know for certain whether he or she had won or lost until the next morning.

As a former political speechwriter, I think it’s one of the toughest speeches in politics to give. The setting is high profile, the situation on the ground is in flux, the candidate is exhausted. And while campaigns often prepare two Election Night speeches — a victory speech and a concession speech — no matter how close the polls are in the weeks and days leading up to Election Day, this is one speech that is never written in advance.

As a lawyer, I’ve had a front row seat for six such speeches, and the best I’ve ever seen was delivered early Wednesday morning by now Governor-Elect Charlie Baker in Massachusetts — grateful, graceful, genuine, poignant, and restrained. He thanked his supporters sincerely. He mentioned his opponent in a very thoughtful way. He gave his opponent political space by ceding her right to wait to make a final decision in the morning. He acknowledged the public’s interest in the accuracy of election results, but shifted the focus to the finality that soon would follow. For candidates in future close elections, this is textbook.

Watch it here:

7News Boston WHDH-TV

“It’s Not Show Friends. It’s Show Business.”

If it is true, as they tell you in law school, that bad facts make for bad law, then yesterday’s verdict in U.S. v. Robert F. McDonnell has to be one of the worst jury verdicts in the history of ever.

A Rolex.  A Ferrari.  Kinloch.  Oscar, Louis, Armani and Bergdorf.  $10,000.  $15,000.  $20,000.  $50,000.  And every last penny of it?  Expressly, unquestionably legal under Virginia’s lax (read: non-existent) state laws governing gifts to public officials.

But following a brutal, extended takedown by The Washington Post, prosecutors felt compelled to bring federal corruption charges.  And following five weeks of testimony in which a spread of luxury goods was laid in front of a jury alongside the sad, sad details of a dying marriage, the jury obviously felt compelled to convict.

As a young trial lawyer, a mentor once told me that a jury verdict is the most unpredictable thing there is in all of law—so unpredictable that it is to be avoided at almost all costs.*  (Of course, given the jury instructions on the critical issues of quid pro quo and official act in this case, this verdict was entirely predictable, and the jury would have been a rogue jury had it not convicted Governor McDonnell on all corruption counts.) 

What’s more, jury verdicts sometimes make no sense.  Juries don’t have to explain or defend their verdicts, and even if they did, it is unlikely that they could do so to the satisfaction of any trained legal mind in all but the simplest of cases.  So we have an appellate system to fix what juries and trial judges got wrong.

I hate this verdict and hope every conviction on every count is overturned on appeal.  In the meantime—and regardless of what happens on appeal—there also is much to be learned from this case by politicians and those who seek to influence them, however softly or indirectly.  These four lessons should last far longer than the underlying verdict deserves to stand:

1.  Make no new friends.

When news of the relationship between the McDonnells and Jonnie Williams first broke, the McDonnells maintained that Jonnie Williams was their friend.  By the time he slithered to the witness stand—under not one but two grants of immunity from prosecution for a host of alleged frauds—to accuse the McDonnells of taking his bribes, they had learned an awful lesson:  There are no new friends in politics, only old ones.

Testimony at trial revealed that the Governor and his advisers had considered what constituted “friendship” when the Governor was preparing a financial disclosure report that permitted him to omit gifts from “friends.”  One adviser correctly told him, “I don’t think there’s actually any law defining what a personal friend is.”  Like a standardized test with more than one “right” answer, however, another adviser more correctly told him, “those persons you knew prior to running for attorney general” would be a good dividing line.

Early in my political career, I worked for a state legislator who was surprised, following his re-election loss, by just how many of the new friends he had made during his term of office stopped dropping by to see him, returning his calls, and offering him tickets to events.  In the course of running for, winning and holding office, politicians meet many great, helpful people.  The higher they climb, the more great, helpful people they meet.  The more sophisticated and subtle those great, helpful people can become.  And the more likely it is that they will disappear the minute you leave office.

I often advise clients that the time to be friends with “friends” like Jonnie Williams is after you leave office.  Until then, the relevant questions are: Does your friendship pre-date your public service? Did you and do you still celebrate special occasions and spend holidays and vacations together? Do you know the names and ages of their children? Are your children friends? What do you talk about when you spend time together—politics and business, or the good old days and the weather? Have they ever asked you for a favor? Do you split or take turns picking up the tab or bill? Does your friend submit the bill for reimbursement or write it off as a business expense?

2.  Keep your friends close, and your donors at arm’s length.

On this point, the jury instructions in the McDonnell case were frighteningly overbroad.  In essence, the judge instructed the jury that a public official has been corrupted when he or she takes something of value from someone, knowing that the person wants something—even if he or she doesn’t intend to provide it, in fact doesn’t provide it, would provide it for anyone else who has asked, or in fact has provided it to donors and non-donors alike, no matter how worthless the thing may seem or be.

No more “to the victor goes the spoils.”  Combined with the expansive definition in the jury instructions of “official act”—virtually anything a public official does, including matters that are “clearly established by settled practice as part of public office”—this new rule has the potential to exclude donors from routine aspects of political life.  Indeed, there are many times when a candidate or elected official accepts many thousands of dollars in campaign contributions knowing exactly what the donor wants.  Sometimes, it is printed on the event invitation—a picture with the candidate, or lunch and a briefing with a policy adviser.  Other times, it is unstated but obvious—reappointment to a board or commission.  Does anyone think that at least some of these donors to the Obama campaign didn’t want anything at all when they maxed out to the campaign and national party committees, and then bundled hundreds of thousands of dollars more in contributions from their friends and associates, only to be “shocked, shocked!” when President Obama appointed them to be ambassadors? 

As explained in #4 below, there is a very important reason why I do not think this will be the practical effect of the McDonnell verdict, but I do think it is the logical extension of the theory of the case.  “D” is the new scarlet letter of politics.

3.  Have a “No Man.”

Evidence introduced in the McDonnell trial indicated that the Governor may have kept some aspects of his relationship with Williams hidden from his staff.  Evidence also indicated that, even with limited knowledge, some staffers had begun to question the appearance or appropriateness of the relationship—staffers who, had they known the full nature and extent of the relationship, likely would have had the same reaction that nearly everyone outside the so-called “Third Floor”+ bubble had when news of the situation broke.

But there was no evidence that any of those staffers were heeded.  To the contrary, it seems as if they were worked around or just straight run over.

It has become cliché for politicians to bemoan the loss of their private lives.  It also has become cliché for the public to bemoan the corrupting power of public office over even a man as honorable as Bob McDonnell.  But clichés become clichés because they are, for the most part, true.  Corruption can take many forms and has many causes—including not only “selling out” for money, but also losing good judgment and proper perspective by becoming worn down over time from the daily grind and relative isolation of public office, especially high office.

The manager of the first political campaign I ever worked on had this deal with the candidate:  “You can’t fire me, and I can’t quit.”  Any holder of high office needs one person who knows absolutely everything there is to know about the officeholder, keeps confidences and passes no judgment, and can say “no” when the officeholder can’t or won’t do it him- or herself.  If only someone could have stopped the Jonnie Williams “gravy train” before it wrecked Governor McDonnell’s administration and now, his life.

4.  Degree matters.

Most often, the underlying act in a public corruption prosecution is illegal.  When we think of corrupt politicians, we think of suitcases of money in hotel rooms, vacations disguised as conferences, free home renovations and additions—all hidden from public view and unlawful under the law of the prosecuting jurisdiction.  When the underlying act is illegal, the corrupting influence of the act is all but presumed.

The McDonnell case may be the first—certainly, the highest profile—major public corruption case arising out of the provision of gifts that were completely legal in both nature and amount.  And on that point, there is one particular point of law that I think has been underappreciated, if not lost, in most of the commentary and analysis about the case:  As a matter of law, there is little distinction between the lawful gifts in the McDonnell case under Virginia law, and lawful campaign contributions in any other jurisdiction.^

As a matter of fact, however, there is a huge distinction—the luxurious nature, sheer volume and monetary value of the gifts.  Wealthy individuals and moneyed interests have been providing things of value—“gifts”—to public officials in Virginia for decades.  Mostly fancy dinners and trips, worth in some cases several thousands of dollars, year in and year out, for decades, all publicly disclosed.

So an early contention of the McDonnell defense team was, in essence, “everybody’s doing it.”  But not like this.  The watch was a Rolex, not a Seiko.  The car was a Ferrari, not a Ford.  The stores were high-end, not mass market, and the clothes were designer styles, not mall styles.  The golf was at Kinloch, not Belmont.  The wedding presents were cash, not registry gifts.  And all of it was from one source.

It’s hard to imagine that prosecutors could have brought or won this case if Williams’ only gifts had been, say, the use of his lake house and a ride in his Ferrari.  That case truly would have been like probably hundreds of other cases involving many prior Virginia governors who have traveled in their campaign donors’ planes, vacationed in their second homes, and golfed at their country clubs.  Even the weekend getaway to Cape Cod is indistinguishable from other trips regulated Virginia corporations have provided to legislators on committees of jurisdiction every year for many years.

But all of it together—the cash, the loans, the gifts, the travel—all $177,000 of it?  Shocking.  Not illegal, but still shocking—even to those of us who have worked in Virginia’s no-limits, anything-goes-with-full-disclosure system of government ethics for years.  As it turns out, even a no-limits system has its limits.

And I think that is what in practice will keep the verdict in this case—if it is upheld—from criminalizing routine interactions between politicians and the donors who finance their campaigns.  Donors will still donate, bundlers will still bundle.  They will meet with government bureaucrats and get their pictures taken with elected officials.  Governors will still appoint them to state boards and commissions, and presidents will still appoint them to be ambassadors or maybe even Commissioner of the IRS


It is all a matter of degree.  Somewhere between Jonnie Williams’ first gift and his last gift was a line.  It’s hard to say even now where the line was in this case—but the jury didn’t have to, because they had no doubt it had been crossed.

*  But not—I think—at the cost of admitting a felony you did not commit and resigning your office in disgrace.  And especially not when The Washington Post already has indicted, tried and convicted you.  There has been much second-guessing Governor McDonnell’s decision to reject a deal in which he would have pleaded guilty to a single non-corruption-related felony count.  Under the circumstances, and on the state of the law as the Governor and his attorneys understood it, I don’t think you can blame him for deciding he had no choice but to seek to be exonerated by a jury of his peers.

+  The “Third Floor” is the term Virginia politicos use to refer to the Office of the Governor, which is housed on the third floor of the State Capitol building.

^  The principal distinction I see between the lawful gifts in the McDonnell case and lawful campaign contributions in any other case is the directness of the personal benefit—but I’m not sure that distinction makes any difference under the prosecution’s theory and the jury instructions of the McDonnell case.  For instance, I believe the government still would have brought the case if Jonnie Williams had given $170,000 to the Governor’s PAC, instead of to his family.

First Take: U.S. v. McDonnell

The indictment of Bob McDonnell is a gut punch to all who knew him, worked for him, admired and believed in him and his leadership style. Earlier today, on Twitter, I posted these ten quick thoughts on the law and politics of the case against him:

1. I was struck by the outburst of snark and schadenfreude from the chattering class on Twitter as news of the indictment broke. Whatever your policy disputes with him, Bob McDonnell played politics in a different way – thoughtful, respectful, fair – even with his opponents. The political chattering class would do well to learn to play Twitter that way, too. There but for the grace of God go we.

2. There has been much focus on the sensational facts of the indictment, but little if any focus on the law.

3. Bob McDonnell was the Governor of Virginia, elected by people of Virginia, exercising authority granted to him by the Constitution and laws of Virginia. And the conduct Bob McDonnell is accused of was entirely legal under Virginia law. For years, the Virginia General Assembly has determined that, without an express quid pro quo, no gift in any amount can corrupt or appear to corrupt a public official. Now, however, the Department of Justice apparently regards Virginia’s law as insufficient to protect the people of Virginia from the man they elected to lead them, so it’s indicting Bob McDonnell under federal law. In so doing, DOJ is substituting its policy preferences for will of the people of Virginia’s elected representatives – charging Bob McDonnell federally for legal state conduct.

4. And where is that quid pro quo? DOJ has Jonnie Williams, so if there was a quid pro quo, wouldn’t he have given it to them? But the indictment of Bob McDonnell pleads no facts proving any express quid pro quo.

5. Of course, the law on the requirement of a quid pro quo in Honest Services and Hobbs Act cases is all over the map. In some cases, it must be express. In other cases, it may be explicit, meaning it can be implied from the facts and circumstances. In campaign contribution cases, the quid pro quo generally must be express – because the underlying act is legal. In gift cases, the quid pro quo generally may be explicit (i.e., inferred) – because the underlying act usually is illegal. The McDonnell case is a gift case, but it’s more akin to a contribution case, because unlimited gifts were expressly legal under Virginia law. DOJ clearly believes it doesn’t need an express quid pro quo to convict Bob McDonnell. Expect this to be a central issue in the case.

6. Speaking of quid pro quos, how about DOJ’s deal with Jonnie Williams? And what about the former Bob McDonnell staffer who Williams actually may have offered a six-figure private sector salary to in exchange for her help? Does she have a deal with DOJ too?

7. I don’t know a single fair-minded Virginian who thinks Bob McDonnell deprived us of his “honest services,” whatever that even means. And I also don’t know anyone who thinks Bob McDonnell used his official position to EXTORT Jonnie Williams, as the Hobbs Act requires. As for the cover-up counts, I don’t think the government should be able to imprison people for covering up crimes they are acquitted of.

8. Everybody’s asking, “Is the prosecution of Bob McDonnell political?” He’s a political figure – of course it is. But that’s not the right question. The question is, “Is the prosecution fair?” From the beginning, the prosecution of Bob McDonnell has been conducted unfairly. Government agents leaking information to Washington Post reporters obtained in the course of a supposedly confidential law enforcement investigation of a presumedly innocent man? DOJ cutting deals with the alleged briber, and possibly his co-conspirator, charging Bob McDonnell’s wife as an accessory instead? Withholding evidence that is clearly exculpatory of Bob McDonnell?

9. For yrs, DOJ has said that public corruption is the federal government’s #1 domestic law enforcement priority. I get that. Corrupt politics strikes at the very foundation of our democracy & undermines the legitimacy of its government. Dishonest politicians stretch the law and push the envelope, so DOJ and the Public Integrity Section must push and stretch to keep them in check. But poor personal and political judgment are not federal crimes. The facts alleged in Bob McDonnell’s indictment reflect poorly on his personal and political judgment, but were expressly legal under Virginia law. DOJ was right to investigate this matter, but given legal state law conduct and the absence of an express quid pro quo, it should not have indicted Bob McDonnell. He has paid and will continue to pay very high price for his mistakes – shamed, disgraced, and flat broke by end of this case. He should not lose his freedom too.

10. Our adversarial justice system depends on defendants having the will and resources necessary to fight the relatively limitless will and resources of the government. Bob McDonnell faces a long, costly, draining fight versus a merciless adversary. I pray he’ll have the resolve and funding he needs to see it through.

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.

A Recount Is Coming. Are You Prepared?

If you’re reading this post on Wednesday, November 3 because the votes are in and you’re headed for a recount, stop.  It’s too late.  You may still win the recount, or you may lose, but either way you will not be in control of your electoral destiny.  You were unprepared, so just hire a lawyer and hang on for a wild, blindfolded ride through a political haunted house of surprises, apparitions, tricks and dead ends.

Recounts are taking place with more frequency in the current closely-divided electorate, and we learn more with each successive recount.  One thing we know for certain — one common denominator to all recounts — is that you must prepare before the Election for what may happen after it.  Indeed, pre-election preparation is your only opportunity to get ready for post-election process.  When the sun rises Wednesday morning and the post-election process begins, it is too big and moves too fast for you to catch up to it.  This is especially true in congressional and statewide recounts.

Fortunately, there are seven key things you can do in the two weeks before an election to prepare for a recount, and to put your campaign in the best possible position to win.  Gleaned from my experience litigating a statewide and a congressional district recount, and from consulting and observing numerous others, they are:

1.  TWO WEEKS OUT:  Recruit volunteers to represent you at the following events:

  • Election Night:  One volunteer per precinct to observe vote counting and tabulation.  Don’t forget Central Absentee Precincts.  Volunteers should bring handheld calculators, be in place by 6 p.m. and prepared to stay as long as necessary.
  • Wednesday Morning:  One volunteer per locality to observe the provisional vote proceeding and post-election canvass.  For these events, you want your very brightest, sharpest, most professional volunteers — lawyers, accountants, businesspersons, etc.  Be sure to recruit back-ups, as one or more of your chosen volunteers likely will have something happen that will prevent them from covering for you.
  • End of First Week – Beginning of Second Week:  One volunteer per city or county standing by to obtain copies of election records, as permitted by law, once the provisional vote and canvass proceedings are concluded.

2.  TWO WEEKS OUT:  Identify and retain a lawyer.  Self-serving, I know, but it doesn’t have to be me.  You have to get someone on board, however, who knows or has time to learn your state recount law — so he or she doesn’t spend the critical first 12-24 hours of post-election process feeling his or her way around the law and the procedures.  Also, and this is CRITICAL:  You want your lawyer to develop a set of instructions and reporting forms so that your volunteers in the field will know exactly what to do, what not to do, what information the lawyer needs them to collect, and where and how to find it.

3.  ONE WEEK OUT:  Contact the Local Electoral Board to identify the starting time and location of each locality’s provisional vote and canvass proceeding.  Confirm the answers in writing and request notice of any changes.

4.  ONE WEEK OUT:  Make sure that your volunteers have the credentials and identification necessary to admit them to the vote count, provisional vote and canvass proceedings.

5.  ONE WEEK OUT:  Gather precinct-level returns from several relevant prior elections.  These are for your lawyer’s use in analyzing returns from your election.  (More on this below.)

6.  ELECTION NIGHT:  Your in-precinct volunteers should:

  • Make sure that tapes/print-outs are pulled from all machines, and make sure that all paper ballots are counted.  (Only exception:  No provisional ballots are counted on Election Night, unless state law provides otherwise.)  There is nothing worse than finding out Wednesday morning that a voting machine was forgotten, left on overnight, and has a couple dozen votes on it.  Or that a box of paper ballots was left sitting on table.
  • Observe the tabulation of the vote.  Double-check the election officials’ tallies using handheld calculators, and watch for mathematical and other errors (including transposed digits (e.g., 597 –> 579), transposed vote totals (e.g., Candidate A’s votes are recorded for Candidate B and vice-versa), etc.).  Politely point out errors, and make note of any that are not corrected.
  • Make sure that all voting equipment, ballots and other election materials are secured prior to leaving for the night.
  • Call in to campaign headquarters with a report.

In the meantime, as results are coming in, your lawyer should be scrutinizing precinct-by-precinct incident reports, if available, and comparing the Election Night precinct-level returns with those from past elections, to identify potential irregularities or anomalies.

7.  WEDNESDAY MORNING:  If there is no concession on Election Night, your provisional vote and canvass volunteers should AUTOMATICALLY do the following:

  • Wake-up early and check their e-mail first thing in the morning for instructions and reporting forms from the campaign’s lawyers.
  • Plan to dial in to a conference call to discuss legal and political strategy.
  • Deploy to the site of the post-election proceedings.

If your campaign can implement those basic steps, you will be very well-positioned to be in control of the recount.  The flip side is that if you have holes in your coverage, you’ll invariably end up missing information, scrambling to catch up, and starting the recount off in a reactive mode — costing you precious time and opportunities.