Three weeks after election day, the situation in Virginia and the fate of the House of Delegates majority is far from resolved and moving to unchartered territory, with three recounts under way, one recount about to be filed, and one recount that should have been filed but wasn't - and even more problematic, with one district (28th in Stafford County / Fredericksburg) where the Virginia State Board of Election recently certified the election results but where 147 voters - or perhaps more - were assigned to the wrong district.
Bush vs Gore comes to mind.
While the situations are different in many respects, there are striking similarities, starting with the fact that a small, local election (HD 28) with a tiny vote margin between the candidates and many irregularities, some confirmed and more suspected, will decide on a major, high-stake outcome - the majority in the Virginia House.
There is also a similar string of common-sense-defying local election code rules and deadlines, multiple state & federal lawsuits pending, in progress or dismissed, election boards with dubious non-partisanship and with no enforcement power - and worst, legislators with potential decision power over the election results for their own chamber.
And most irritating in both Florida 2000 and Virginia 2017, there are officials and lawyers who think that arbitrary deadlines in local election codes prevail over the basic principle of properly counting all of the votes, no matter what it takes.
There were also signs that ex-Republican Virginia State Board Vice-Chair Clara Belle Wheeler will take the role - so-to-speak - of infamous Florida Secretary of State Katherine Harris. Earlier this year, there were calls for Wheeler to resign from the board after she allegedly spread rumors of massive voters fraud and was quoted as saying:
“It’s not who votes that counts…It’s who counts the votes.”
Wheeler was one of three board members who on Monday certified the HD 28 election results that they knew to be wrong and despite lawsuits brought by voters assigned (and this was confirmed) to the wrong district.
If that wasn't enough, there is another similarity which not many people may remember, but in Bush vs Gore, there was a case of 2,411 overseas military ballots with missing postmarks which first were not counted because they arrived late after the 7 p.m. election day deadline - but after a federal lawsuit was brought up, these ballots did end up being officially counted and brought to Bush a surplus of votes (see summary of that case
here or full details
here ).
It is so ironic that early on in District 28th, there was also a case of 55 overseas ballots without postmarks claimed to be late by the registrar - but in this case, even after two lawsuits were brought up and dismissed, and unlike in Florida, these votes never got counted.
Now if the margin in this race narrows from where it is now (82 votes) to 40 or so votes after a recount and potential error fixes (if that's possible), this may bring back the case of the uncounted 55 ballots to the forefront, with the potential to flip the results. But even though it was never resolved if the ballots arrived before or after the 7 p.m. deadline, whether those ballots could still be brought back in the picture is unlikely but not fully clear.
The most messy part of the situation in District 28th is the confirmed at least 147 people who voted while assigned to the wrong district as follows:
86 should have been assigned in HD 28 but were assigned in other districts
61 were assigned in HD 28 but should have been assigned elsewhere.
There is no easy way to fix this. While it would be fairly reasonable and easy to have the 86 voters that should have been assigned in HD 28 to revote in that district and then add their votes - on the other hand there is no way to "subtract" the votes of the 61 voters, because there is no way to know how they voted - short of contacting them, asking them and trusting their answer - virtually impractical. Also, and perhaps more importantly, there may be even more incorrectly assigned voters than just the 147, but it is not clear if, when and how others may be found. So it would seem in this situation that a full redo of the election in that district would be the best remedy.
Now wait for this: in the two contiguous districts, 88 and 28 with split-precincts between the two, streets with one side in 28 and the other side in 88, and with mixed-up voters wrongly assigned to 28 instead of 88 and vice-versa, the Republican candidate's name in 88 was Cole and the Democratic candidate's name in 28 was Cole.
You just can't make this up! There really could be a number of folks in 28 but wrongly assigned to 88 who voted for Mark Cole (R) thinking that they were voting for 28th candidate Joshua Cole (D).
To further increase the confusion of this imbroglio, the reason why voters were mysteriously changed from one district to another will remain murky, because the registrar responsible for the change died six months ago (though you'd think that a single person wouldn't be allowed to make voter changes on her own, and that other people in her office would be aware and involved).
As an obvious change needed to the Virginia election code, split-precincts ought to be banned outright: they are a recipe for confusion and election errors, but much worst, they are an obvious demonstration of the power of gerrymandering to allow elected officials to select their voters down to the very house! In the rare cases where a district change needs to slice a precinct to get to a close-enough equal size with other districts, then the boundaries of the precinct itself should be required to be withdrawn - as is the practice in many places.
Another obvious Virginia election code improvement needed is that there should be a threshold (0.5% probably makes sense) which automatically triggers a recount paid by the state. Whether there is a recount in a race shouldn't depend on whether the candidate has enough money to pay for lawyers fees and/or have the time to get a lawyer to file in due-process by the deadline.
Meanwhile in District 40 in Fairfax County, the margin between the two candidates is 115 votes and a recount has been filed. There with 115 votes apart, the odds of a recount flipping the results are low, but it is still important to carry on, especially in this race where many people were surprised and even suspicious when the Democratic candidate Donte Tanner was declared winner on election night with all precincts counted, but somehow the next day 300 or so votes got found which conveniently for the Republican candidate (Tim Hugo, one of the most powerful Delegate in the House) were enough to switch the results. So the recount, duly monitored and audited, is critical there to put any suspicion to rest.
On a side note, there was also a 4th race with a tiny results margin of just 128 votes in District 27 (Chesterfield County). That margin was well within the threshold to both request a recount and even to have it paid by the state (the state doesn't pay legal costs, but the Democratic caucus committed early on to cover such costs). Why the Democratic candidate Larry Barnet conceded in this race and did NOT file for a recount is a huge mystery - and certainly doesn't do justice to his hundreds of donors and volunteers who had worked hard on his campaign. While the odds of a recount overcoming 128 votes are small, the more races with recounts the more chances one could flip.
There was breaking news just yesterday that the Republican filed an unexpected recount in the 68th district in the Western Richmond suburbs, where the margin was 336 (in this case they will have to pay for the recount). It is sad that we have Republicans filing in that 336-margin district, while Democrats are passing on the opportunity to file where their margin is 128! In any case, it is too late, the deadline was yesterday 11/30.
Meanwhile, in district 94 near Newport News, the margin between the two candidates is a crazy, mind-boggling 10 votes! The recount there will start shortly and in this case, the possibility for the result to flip is definitely there, with undervotes that scanning machine had not counted but manual tally will find being historically more frequent for Democratic than Republican votes.
While the Virginia election board is under criticism for having certified the HD 28 election results despite the irregularities, one thing to note to the board credit - and this is huge - is the change they implemented in Virginia to get rid of the no-paper-trail hack-prone touch-screen machines, and have all polling places use non-internet-connected scanning machines with paper ballots. This is so important, because this will allow proper hand recounts in all of the 4 districts where the recounts were filed.
If we had had this requirement in places such as Michigan, Wisconsin or Pennsylvania in November last year, the outcome of the Hillary/Trump election may have been different, because getting rid of the no-paper-trail machines would have made actual, reliable hand recounts possible, and we would not be in a situation where we will never know for certain if some of the machines got hacked.
As the HD 28 election quagmire stands, there seems to be 3 main scenarios for outcome:
(1) The HD 28 election results, once the recount is done, is brought to court and the courts mandate a full new election in that district. Best remedy by far, but will take time and money - and sadly for democracy, it is very unlikely to happen.
(2) Courts decide to leave things in HD 28 as-is (as "certified" including any adjustments from the recount which most likely will not switch the winner). This is, unfortunately, the most likely outcome - in line with Bush vs Gore. Historically and generally for election matters when things go to courts, the outcome is not the most equitable and what makes the most sense in a "one person one vote" way.
(3) The third possible outcome is that the final decision goes to the House of Delegates itself. This has happened at least one time in the past - though that's crazy remedy to have the legislators deciding on themselves and the fate of their own majority. Certainly gerrymandering comes to mind as a similar situation where legislators select their own voters and thus are in control of the results of their own election.
But at that point there are 2 sub-scenarios that could happen, both plausible:
(3a) If the recount in the HD 94, the one with 10 votes apart, leaves things as-is, then the House would be in a 51/49 Republican majority and that would leave HD 28 with the current Republican winner.
(3b) If the 10-vote-apart HD 94 recount results flip to Dem candidate Shelly Simonds as the winner - and assuming timing works out - then the House would be 50/50 when it gets to decide on HD 28. At that point, two sub-sub scenarios could happen (here it's a bit of a guestimate as the rules are somewhat murky):
(3b(i)) If the decision is made via a floor vote, then it's not clear whether the HD 28 for-now-certified winner Robert Thomas would be voting - it would seem crazy to vote on oneself and he definitely should recuse himself - so with this assumption the House would be 50/49 to the Dems advantage, Joshua Cole would win and the House majority would flip.
(3b(ii)) If the House decision is not through a floor vote but more of a decision by the House Speaker, then this is where certifying HD 28 results despite irregularities was bad and would make a difference because it would have resulted in the current winner to be seated and the Republican Speaker to be in place. So we'd have a Speaker deciding, but he should really no longer be a Speaker because the one race flipped (94) and another one (28) has its Delegate seating but it's the one who is being decided upon. If this makes sense.
The majority in the House is a very big deal. Even with the 15 new Dem delegates just elected, anti-Trump energized voters, grassroots activists and in- and out-of-state donors may be disappointed with what they see as bills passing in Virginia in the next 2 years if the House ends up in a 51/49 Republican majority. This is because of one of the strange way the Virginia legislature works where the Speaker of the House (decided by the majority) is the one who decides on every member in every committee - and the committees drive everything, deciding which bills make it for a vote.
So getting to 49/51 or even 50/50 instead of 51/49 would make a world of difference on what can be passed in Virginia in the next 2 years, on things such as Medicaid expansion, gun safety laws, renewable energy, and fixing what's wrong with the Virginia legislature in the first place, starting with redistricting reform - and so many other overdue priorities.
Stay tuned. Yes, Virginia is now in a sort of Bush vs Gore quagmire. But certainly hoping for a different outcome this time.