Virginia Recount Laws

This information was initially released on October 21, 2010.

Voting System Used: 

Mixed paper ballot and DREs without VVPAT For more details, visit Verified Voting.

 

Counting Method: 

Mix of recount, retabulation and electronic review As most precincts in Virginia use direct-recording electronic machines (DREs) without a voter-verified paper audit trail (VVPAT), only an electronic review of initial returns is possible for many votes. A review of votes cast on DREs in Virginia consists in opening and examining the printouts from the DREs, The court may order that the count be printed again or the counters examined. See the Code of Virginia, Title 24.2, “Elections,” Chapter 8, “Recounts and Contested Elections,” Section 24.2-802, “Procedure for recount,” Subsection (D)(2): http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-802. Paper ballots initially counted by hand are to also be recounted by hand. See Section 24.2-802, Subsection (C). Additional ballots to be counted by hand include ballots tabulated by optical scanners that contain “write-in votes, overvotes, and undervotes,” and “any ballots not accepted by the tabulator, and any ballots for which a tabulator could not be programmed to meet the programming requirements.” However, all other ballots tabulated by optical scanners are retabulated by machine. Automatic tabulators must be tested prior to retabulation, and for recounts, are set to count the votes only for the office or initiative in question. See Section 24.2-802, Subsection (D)(3). All votes for an office or question may only be recounted one time each election; no additional recounts may take place, as the law specifies that:  “There shall be only one redetermination of the vote in each precinct,” and “The recount proceeding shall be final and not subject to appeal.” See Section 24.2-802, Subsections (D)(3) and (H).

Initiating Mechanism: 

Candidate-initiated Voter-initiated

Candidate-Initiated Options: 

Close vote margin required Any defeated candidate in any election may apply for a recount, but only if the difference between the apparent winning candidate and the apparent defeated candidate falls within the close vote margin requirement. That margin is not more than one percent of the total vote cast for the two candidates, except for write-in candidates, in which the margin is not more than five percent of the total vote cast for the two candidates. See Section 24.2-800, “Recounts in all elections”: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-800 Timing: For all offices other than that of president, the recount petition must be filed within ten days after the appropriate board certifies the result of the election. See Section 24.2-801, “Petition for recount; recount court”: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-801. A recount petition for an election for presidential electors must be filed no later than 5:00 p.m. on the second calendar day after the day the State Board certifies the result of the election. See Section 24.2-801.1, “Petition for recount of election for presidential electors; recount court”: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-801.1.

Voter-Initiated Options: 

Close vote margin required Voters may request recounts for initiatives/questions A minimum of 50 voters is required to file a recount request on a ballot question, and as with candidate-initiated recounts, there is a close vote margin requirement: the difference between the votes for and against a ballot question must be not more than fifty votes, or not more than one percent of the total votes cast on the question, whichever is greater. See Section 24.2-800, Subsection (C). Timing: Recount petitions on ballot questions must be filed within ten days after the appropriate board certifies the result of the election. See Section 24.2-801.

Cost for Candidate-Initiated Recounts: 

Initiator pays set or per jurisdiction fee Initiator pays deposit or bond before recount Payer of costs depends on outcome of recount Recount initiators must post a $10 per precinct bond, to be refunded if the recount alters the election outcome in their favor or shows the final vote margin between the two leading candidates to be not more than .5%. If the latter is not the case, the initiator must forfeit their bond and is further liable for the complete cost of the recount. See Section 24.2-802, Subsections (E), (F), and (G).

Cost for Voter-Initiated Recounts: 

Initiator pays set or per jurisdiction fee Initiator pays deposit or bond before recount Payer of costs depends on outcome of recount Recount initiators must post a $10 per precinct bond, to be refunded if the recount alters the election outcome in their favor or shows the final vote margin between the two leading candidates to be not more than .5%. If the latter is not the case, the initiator must forfeit their bond and is further liable for the complete cost of the recount. See Section 24.2-802, Subsections (E), (F), and (G).

Challengers and Observers: 

Party/candidate or initiator has statutory authority to appoint observers No statutory guidance for recount challengers Candidates have the ability to request that the court allow them one observer per counting team. They also have the ability to appoint members of the counting team for the recount. See Section 24.2-802, Subsection (C). While Virginia's statutes do not specifically describe a role for challengers, there does seem to be room for recount initiators to argue against certain ballots, as recounts in Virginia are run not merely by election officials but also by the courts. Section 24.2-802, Subsection (D), states: “At the conclusion of the recount of all precincts, after allowing the parties to inspect the questioned ballots, and after hearing arguments, the court shall rule on the validity of all questioned ballots and votes.” We found no statute requiring that the recount be conducted publicly. If you know of relevant laws or rules for this state regarding any of these issues, please email info@ceimn.org.

Rules for Determining Voter Intent: 

Statutory guidance provided Secretary of State or Election Board responsible for defining intent Section 24.2-802, Subsection (A) tasks the State Board of Elections with promulgating standards for determining voter intent: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-802. The Board’s rules can be downloaded at: http://tinyurl.com/VARecountStandards. Additional guidelines for determining a valid vote can be found in Chapter 6, “The Election,” Section 24.2-644, “Voting by paper ballot; voting for presidential electors; write-in votes”: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-644.

Audit Laws: 

State does not have audit laws In 2008 Virginia granted the State Board of Elections the authority to run local pilots of post-election audits. See Section 24.2-671.1, “Pilot programs for audits of optical scan tabulators”: http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-671.1. While the pilot program was carried out, no legislation regarding audits has since been adopted. Please check back for updates on Virginia audit law in our State Audit Legislation Searchable Database: http://www.ceimn.org/state-audit-legislation-reference-guide.

Additional Resources: 
Virginia Code - Title 24.2 - Elections
Virginia State Board of Elections