Can a change in the law change the outcome of an election?
On November 3rd, voters in Virginia went to the polls and handed Republicans a statewide office sweep and gains in the House of Delegates, but, as has become a common occurrence in Virginia, there is one election headed for a recount.
In the 21st House of Delegates district, Delegate Bobby Mathieson (D) and Virginia Beach City Councilor Ron Villanueva (R) battled throughout the summer and fall and after injunctions, questions about absentee ballots, the Virginia Beach electoral board certified Villanueva the winner by 14 votes. The current margin of victory is a mere nine-tenths of one percent.
Virginia law allows for the trailing candidate to request a recount if the margin of victory is less than one percent and Mathieson has stated that he will be seeking a recount. The state Board of Elections has certified the outcome of the election, and it appears that Mathieson will soon officially request a recount. Any recount would likely occur in mid-December.
While election watchers see Mathieson’s chances as slim, a recent change in Virginia’s recount law could provide an interesting twist to this recount. In 2008, Senator Creigh Deeds (the recent Democratic gubernatorial nominee defeated by Bob McDonnell) sponsored Senate Bill 35 which changed the recount process with regard to optical scan ballots (sometimes called scan-tron ballots). Under the old system, election officials would recheck the original printout of the vote counts from election night during the recount. There would not be an actual recount, as much as a rechecking of the election night result. With the passage of Senate Bill 35, ballots now are recounted as the optical ballots are rerun through a voting machine during the recount.
In recent years, Virginia has had two major recounts under the old system and one under the new rules of Senate Bill 35.
In 2005, then-Delegate Bob McDonnell defeated Senator Creigh Deeds in the Attorney General race by four-one-hundredths of a percent following a statewide recount. In 2007, then-state Senator Ken Cuccinelli narrowly won defeated challenger Janet Oleszek by ninety-two votes to win reelection. Both those recounts were done under the old system.
Last year, in the first recount conducted under the new rules of rerunning the optical scan ballots, Congressman Tom Perriello defeated Congressman Virgil Goode by just over 700 votes or approximately two-tenths of one percentage point. Goode picked up eighteen votes during the recount, but it is not clear if all or any of those changes came from the optical scan ballots being rerun.
In the 21st District it is not clear how much this change in the law will impact the recount. Optical scan ballot machines are typically very accurate. One blog calculated that during the Minnesota Senate recount from last year the optical scan ballots were accurately counted the first time 99.91% of the time. It is not known exactly how many of the ballots in the 21st District were cast on an optical scan ballot and how many were cast on an electronic voting machine. At minimum, 539 absentee ballots will need to be recounted, though it is possible that there could be many more.
In recent years, the outcome of elections has not changed under either system. More than likely this change will not impact the outcome of the election, but in an election where the two candidates are currently divided by only 14 votes, anything could make the difference.
Davis Walsh is a student at William and Mary School of Law.