November 07, 2006

Will There Be A Recount in the Virginia Senate Race?

As of right now, fewer than 12,000 votes separate Sen. Allen (49.67%) and challenger Webb (49.13%) with 95% of the vote counted. The Green Party candidate has over 24,000 votes, so expect Democrats to call this candidate a spoiler.

The procedures for recounts in Virginia are here. I've seen references in the press to an automatic recount, but that's not what I see in the Code:
Section 24.2-800 provides that when the vote is within 1% between two candidates, "the defeated candidate may appeal from the determination of the State Board or the electoral board for a recount of the vote as set forth in this article."

In running the recount, the Virginia State Board of Elections has set forth what appear to be very clear guidelines on how the recount is to be conducted, which should minimize the number of disputes over any recount procedures.

The recount apparently would not be available to determine whether specific ballots should or should not have been counted. For that purpose, a losing candidate would have to file an election contest. It appears that this provision governs a Senate contest, though the language is ambiguous and it could be this provision. [UPDATE: Steve Huefner argues on the election law listserv that a contest would not be available for the Senate race, leaving only the Senate itself to judge any contest. This is a point that will require further research if necessary. By the way, with 99% of the vote in, the difference between candidates has shrunk to less than 2,000.]

It is also possible that the Senate itself could adjudicate the outcome of this close race, which could get very dicey, as Dan Lowenstein explained.

Here is a Washington Post story on a 2005 recount in the state attorney general's race.

Posted by Rick Hasen at November 7, 2006 08:20 PM