Why It's Over For George Allen: A VA Election Law Primer
by DC Pol Sci
Wed Nov 08, 2006 at 04:10:48 PM PST
http://www.dailykos.com/storyonly/2006/11/8/191048/981It's all over in Virginia, but the pundits don't seem to realize it. The media insists on painting the race as "too close to call." A simple look at Virginia election law concerning recounts and provisional ballots demonstrates conclusively that there is almost no way that George Allen can overcome the approximately 7,000-vote lead Jim Webb had in the unofficial results.
The following simple points will be addressed in this diary:
* - The official canvass will change numbers little, if at all.
* - Almost no provisional ballots will count, and even if they did, they'd go for Webb.
* - A recount will change nothing
Call the race already, networks and wire services. This thing is over.
First, the question people have been asking all day: what about absentee ballots? Aren't they heavily military, and won't they swing the election for Allen? (This question has actually been dealt with here, but it's being asked extensively over in Freeperville, and nobody over there has figured out that the absentees are already counted).
Virginia counts absentee ballots on the night of the election. The absentee ballots are considered another precinct in the results. You can see the results for Arlington County, with the "Central Absentee Precinct,"
here.
The absentees have all been counted, and Webb is still up by over 7,000 votes.
Second, folks are asking "why do the results keep changing, and won't this throw the election to Allen? Webb's numbers keep going down and then up."
Answer: These results are still unofficial. On the night of the election, per Va. Code Ann. § 24.2-667, the precinct officials complete a statement of results, which is unofficial, and which is forwarded to the county or city election official. These are the numbers that go into the unofficial results. Per Va. Code Ann. § 24.2-671, the county and city election boards meet prior to 5:00 p.m. the day after the election (today) to certify the results. So as we speak, results are being certified. It is important to note that the results do not have to be certified today; the law only says that the board has to meet today. They have seven calendar days to certify the results to the State of Virginia. So, most likely, the changes that are being seen in the results are minor changes, essentially clerical errors, that report minor differences between what was reported last night and what's on the official forms. In any case, the differences should cancel each other out. County election officials try to report properly on election night and would note any glaring errors. It's almost unheard of for major changes to occur with the canvass in any state. Precinct officials and county officials know what most of these precincts look like, and if one of them reported 7,000 more votes than usual, it would undoubtedly be caught.
In any case, the canvass will be done in seven days, and it will change only incrementally.
Much has been made of provisional ballots. Many provisional ballots may have been cast, but it is doubtful that very many of them will count. The federal Help America Vote Act requires that voters be allowed to cast provisional ballots, but state law determines whether the provisional ballots will count and under what circumstances. The vast majority of people who vote provisional ballots are voters who have moved and failed to reregister. Sometimes, a voter moves and does reregister, but the elections board doesn't get the change of address for one reason or another. If the elections board didn't get the change of address, it doesn't matter: the provisional ballot doesn't count.
There are two primary models that states have enacted to deal with voters who have moved and failed to reregister. One allows provisional votes cast anywhere in the county to count if the voter is registered somewhere in the county. The other requires that the voter be in the correct precinct. Essentially, under the first model, if a voter moves within the county and shows up at the new polling place but isn't on the poll books, if the voter is registered anywhere in the county, the provisional ballot will count. Under the second model, the voter has to have moved within the precinct. Well, if the voter moves within the precinct, his/her name will be in the poll book anyway, and the voter will be allowed to vote a regular, as opposed to a provisional ballot.
Virginia follows the second model. Va. Code Ann. § 24.2-653 states:
The electoral board shall meet on the day following the election and determine whether each person having submitted such a provisional vote was entitled to do so as a qualified voter in the precinct in which he offered the provisional vote.
In other words, the only way a provisional ballot counts is if an election worker makes a mistake or the poll book is wrong. I consulted one of the nation's foremost experts on provisional ballots today, and I was informed that very, very few provisional ballots ever get counted in "same precinct" states.
For Allen to get 7,000 votes based on the provisionals would be utterly unheard of. This is especially true when you consider that the provisionals that do count typically skew Democratic. This is because Democrats, for better or worse, tend to be younger and more mobile. They move more often.
The provisionals won't swing the election for Allen.
Finally, there's the question of a recount. Virginia's recount procedures are very specific. You can find a copy of them (PDF)
here.One of the first things you notice is that in Virginia, the method of recount is dependent on the method of voting. All jurisdictions were supposed to get rid of lever and punch card machines by this November under the Help America Vote Act of 2002. According to page 23 of
this PDF document, all Virginia jurisdictions were HAVA-compliant by May 11, 2006. This means that aside from absentees (which, in my jurisdiction, are optical scan), all machines are DREs or optical scan.
The procedure for recounts with DRE (direct-recording electronic) machines is as follows, per Va. Code Ann. § 24.2-802(D)(3):
For . . . direct recording electronic machines (DREs), the recount officials shall open the envelopes with the printouts and read the results from the printouts. If the printout is not clear, or on the request of the court, the recount officials shall rerun the printout from the machine or examine the counters as appropriate.
For optical scan machines, the procedure is specified by Va. Code Ann. § 24.2-802(D)(4):
For optical scan tabulators, the recount officials shall first examine the printout to redetermine the vote. Only if the printout is not clear, or on the request of the court, the recount officials shall rerun all the ballots through a tabulator programmed to count only the votes for the office or issue in question in the recount and to set aside all ballots containing write-in votes, overvotes, and undervotes. The ballots that are set aside, any ballots not accepted by the tabulator, and any ballots for which a tabulator could not be programmed to meet the programming requirements of this subdivision, shall be hand counted using the standards promulgated by the State Board pursuant to subsection A.
Yes. You read it right. Nobody touches a ballot. All they do is check the totals to make sure they got it right the first time (on election night) and the second time (during the canvass).
Only if they can't read the receipt they've already printed out do they make the machines do anything over again.
To recap: The whole state is DREs and op scans. They check the printout on election night and report the totals. The totals are then
rechecked during the canvass. All a "recount" does is check the receipt that's already been checked twice. This is why, in the Attorney General recount last year, only 27 votes changed in the recount --
and that was before every single precinct in the state had op scans or DREs.A recount in Virginia doesn't "recount" anything. It just verifies the totals that have already been verified twice. The chance of anything being changed is nearly nil.
A recount won't get George Allen 7,000 votes.
Thus, this puppy is just about over. Allen's people surely know this. It's time for the media to realize it.
Say hello to Senator-Elect Jim Webb, and, additionally, Majority Leader Harry Reid.
Update -- the provisionals are trickling in. A typical number: 4 provisional ballots counted in a jurisdiction that had over 8,000 votes in the unofficial last night. Stick a fork in Macaca. He's done.
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