The Problem

Virginia’s electoral process has skewed elections results due to errors, partisan gamesmanship, and shortcomings at nearly every step in how a vote becomes a vote in Virginia. See also the checklist.

Forum FEBRUARY 10, 2018

Part 1 – How does a Vote become a Vote?

 

Round Table Participants

Donte Tanner, our moderator, was recently a candidate for VA House District 40 and narrowly lost the election. He attended the United States Air Force Academy. He served in the U.S. Air Force afterwards and attained the rank of captain. His professional experience includes working as a government contractor

Kenny Boddye ran in the Democratic for VA House District 51 and has just been elected Chairman of the Occoquan Democratic Party. He is a very active political activist and community organizer.

Gene Rossi ran in the Democratic primary for Lt. Governor. He is a renowned 27-year veteran Federal Prosecutor, a law professor, a Virginia prosecutor, and is now practicing law with the firm of Carleton Fields.  Gene is a recognized expert in trial advocacy, has been a teacher for over twenty years.  He has trained thousands of federal prosecutors and agents.  He is a trial instructor at Harvard Law School and teaches constitutional law at George Mason University in Fairfax.

Jack Hardin Young is the current chair of the American Bar Association Senior Lawyer Division. He is known for his work in election law and election recounts, and currently sits on the Advisory Committee of the William and Mary Election Law Program. He  received the 2017 Election Law Educator of the Year and has been an Adjunct Professor at the University of Pittsburgh Law School (Election Law) and George Mason University School of Law.

Tim Cywinski is Director of Engagement at Virginia21. He lobbies the legislature about millenial issues. He speaks to Va21 chapters at all the Public Colleges in VA. He worked with the league of Women Voters and other groups to get millennials to vote and had a campaign called the 30% Campaign which encouraged millennials to identify their major issues to whoever became governor.

Cleo Usmani, co-leader of Indivisible Winchester, organizer of Plus3 and administrator of Thunderdome Virginia Politics. She volunteered her time canvassing for multiple candidates in the 2017 election as well as watched outside her polling place on election day.

Special thanks to Deep Sran for hosting the event at the Loudon School for the Gifted.

How can we do things differently next time to ensure electoral justice?

What happens from the time a person registers to vote to the time that vote is counted? Who gets to decide which votes are counted?

A lot of good things came out of the 2017 races for the Virginia house of delegates as the Democrats picked up 15 seats. However, three races stood out for what might have been. Donte Tanner thought he won by 68 votes the night of the election. But, when the votes were carefully tallied post election day, he lost his race. In Shelly Symonds’ race for VA House District 94, after a recount she was up by just one vote after her district’s 3-judge panel finalized the recount. Then the next day, one of the election judges, a Republican who was nominated to his post by Symond’s opponent David Yancey, changed his mind about an an accepted a previously rejected over-vote ballot. This tied the vote, which was then decided by the equivalent of a coin toss.

Voter Registration

In Virginia, the responsibility to register to vote is put on the voter. If you are in Virginia you vote in person, unless you have an excuse why you can’t. Then, you have the option of voting by absentee ballot. You need “cause” and apply for an absentee ballot with the city our county board of elections. You must return your absentee ballot which you must return by election day. Overseas military receive absentee ballots about 45 days before the election. Those absentee ballots must arrive by mail before 7PM on the day of the election.

Ballots

Ballots are now paper, with machine readable bubbles. The ballots are tallied by election machines and stored in the machines as a paper backup to prevent hackers from digitally forging election results. After the election is over, each county and city holds a canvass, where all of the ballots are brought to a central location and reviewed. That is the point when a county board issues its final results. Those results are still not final-final. They are next sent to a state board of elections which receives the results from all of the 132 cities and counties in the Commonwealth. The state board usually certifies results as final usually right after Thanksgiving.

Recounts

Once an election is certified, a losing candidate has the right to file for a recount if the margin of losing is within 1 percentage point. If it’s within 1/2 a percentage, the state will pay for the cost of a recount. A recount is a reassessment of what was done in the canvass. The difference is that the actually paper ballots are hand-counted under state statute 24.2 801.

Ballot Standards for Recount & Pictograms

In 2002, the state board of elections put together a series of pre-determined standards for how ballots should be counted. Pictograms, examples of scenarios for how a ballot might be filled out, were also provided. For example, pictograms illustrate examples of ballots where both candidates have been marked by the voter in such a way that it is impossible to determine the voter’s intent. One of the problems with the 2000 presidential election in Florida was that there were no standards that could be applied in the Florida recount.

In Virginia, the rule of law should be followed by independent arbiters, regardless of party, by adhering their recount decisions based on the predetermined standards, visualized with pictograms.  Recounts are just a re-auditing of the votes. It’s not a place to challenge provisional or absentee ballots.

3 judge court is chosen by the Chief Justice, 1 judges from county where election held with 2 judges from distant circuits. Final, not reviewable. Following recount, candidate can request a “contest” to be decided by the chamber of the house for which the individual is running. The outcome is most likely determined by which party controls that chamber politically. Contests are very rare in Virginia.

Tied Votes & Coin Flips

If the results are tied, the code of Virginia provides that the candidate is chosen by lot — flipping a coin, pulling a name out of hat. The loser of a coin flip has the right, under current statutes, to request a second coin flip. This usually doesn’t happen because of political exhaustion and the risk that candidate doesn’t want to risk losing good will with the voting public.

Did the Judge have a conflict of interest in Shelly Symonds election? Yes! There is nothing wrong with Yancey endorsing someone on a panel of election judges, but when it came to deciding the results of an election by such a narrow margin, that judge should have recognized the conflict of interest and recused himself. The process, frankly smelled. But nobody raised this in the moment. If the Democratic candidates or his or her legal advisors  don’t raise these conflict of interest objections while the recount is being decided, at the preliminary hearing, the opportunity to prevent of a conflict of interest passes.  One problem is that often legal teams aren’t up to speed on the nuances of state recount laws.

Part 2 – VoTER REGISTRATION – The Recount Process

Turnout

Low voter turn out in non-presidential election years is an issue, particularly among younger voters. In part, this is because people don’t entirely understand the process. How do we make the process more accessible to everyday people?

The 100th anniversary of the 19th amendment is approaching, celebrating woman’s right to vote. This begs the question, why isn’t everyone in the Commonwealth of Virginia, indeed across America, automatically registered to vote? Why make citizens have to go a complicated process just to vote?

Voter Registration Forms

Voter registration forms in Virginia require your full social security number. This causes some people to be apprehensive about giving their social security number on a piece of paper to a voter registrar. This could be changed by future policy. (Social Security numbers used to be displayed by your name on voter registration lists until this was changed by the courts). Could the voter registration system instead use a number that syncs up with just the last 4 digits of a social security number? In a mobile society, there is a need to track and identify people by a number. 80 percent of all voter registrations now take place online.What assurances do we have of cyber security on voter records?

Absolute security is a called for for ballots, for tallies, and for voter registration databases. Foreign governments including Russia have attempted to break into our voting systems and records.

The Canvass

The numbers put together on election night are unofficial, imprecise, and unreliable on how they are gathered and how they are recored on the state board of elections website. Donte Tanner was up by 183 votes on election night, but as the votes were tallied later, he lost. Emotionally on election night he was up, but in reality he was behind all along. All of the ballots cast are in the office of the clerk in the county or city you are in. The day after the election, the electoral board gather reviewers together, and they open each of the envelopes for each of the precincts. All ballots cast including totals from the machine, absentee ballots, and provisional ballets are reconciled from official paper records. This canvass can take several days in large counties, or one day in smaller counties.

Regarding provisional ballots, we didn’t always have them. If there was a question about you could vote, you were simply turned away at the polls, and later there would be no way to recover your ballot if you were turned away illegally. The Help America Vote Act enacted after the 2000 presidential election  (Bush vs. Gore), now provides a way for everyone who shows up at a polling place to cast some time a ballot, either a regular ballot at a machine, or an absentee ballot, or a paper provisional ballot.

Photo ID Law As a Cause for more Provisional Ballots 

A law requiring photo IDs to vote in Virginia was enacted in 2014. About 2/3rds of states now have voter photo ID laws. Prior to this law, you announced yourself at your polling place, your name was looked up on the voter registration rolls, if there was a question about your eligibility to vote you could submit an affidavit on the spot, and that was good enough to proceed with voting. Now, if you don’t have a photo ID on election day, the day after the election–or as late as Friday of that week–you can go the the local registrar’s office with your photo ID to have your provisional ballot verified as viable. But a lot of people don’t know this, or don’t make the effort to come back with a photo ID, and hence their provisional ballot is rejected.

Who Counts the Ballots?

The reviewers who count the ballots are selected by the general registrar. At the canvass, each political party and each candidate has the right to have political observers. Over the years fewer party officials follow through to make sure there are observers on the canvass in every voting district. After the 1998 Virginia US Senate race between Democrat Mark Warner and Republican John Warner both parties made sure to have lawyers observe ballot counting. Democrats call this Promote and Protect the Vote, GOP calls it the 72-Hour Process. In 2000 on election day in Palm Beach, Florida, over 6,000 voters were confused by the infamous butterfly ballot and voted for Pat Buchanan unintentionally rather than Al Gore and Joe Lieberman. (As suggested by voter demographics and exit polling).

No one from the Democratic party was in Palm Beach to observe problems. Had legal observers been present and detected the problem, they could have acted swiftly. For example, they could have gone to a Kinkos copy shop and printed sample ballots and handed them out outside the polling place with simple instructions: Punch 5 for Al and Joe. This would have ensured that thousands of Gore/Lieberman voters could have overcome their confusion and voted their intention. And that would have been enough to win the election. The difference in Florida in 2000 was less than 300 votes.

In big campaigns, like U.S. Senate races, the Democrats have put lawyers in the field to ensure that if there is a mistake that we respond to it while voting is going on. This is a “rapid response” to at least ensure that provisional ballots are cast that can potentially recover votes during the canvass.

Part 3 – Provisional Ballots and Voting Day Rapid RESPONSE Teams

When we get to the canvass, it’s too late. If someone is turned away, or directed to the wrong polling place, we need evidence, and that evidence is a provisional ballot. What causes errors on election day or inaccuracies that come out in the canvass? Is it poor training for election officials or a deeper problem there (i.e., bias?)

Split precincts cause problems and confuses voters. There was funny business in District 28, Joshua Cole’s race. We had voters that went to their precinct and were given the ballot for the wrong district. We heard of cases where election officials took precinct maps off the wall because voters were challenging them. During the court case Joshua Cole argued that voters should have been given a provisional ballot for the district they felt they lived in. Bob Thomas argued that the fact they voted in the wrong district counted anyway because their votes were counted–just for a different candidate.

In the 6th Circuit Court case of Hunter vs. Hamilton Board of Elections, the court ruled  that disparate treatment of voters is actionable when state actors have misapplied state law. For example, election officials giving out wrong ballots compared to a voter doing the wrong thing like not punching out a ballot chad correctly. Disparate treatment is a violation of the Equal Protection clause of the Constitution,.

Here’s a hypothetical: assume that one knows this will be a close election. Months before election day, the party should look at the district at the voter lists and determines who’s in our out. It’s critical that the Party and candidates do their due diligence. If it’s not done, then we have to live with the results. The party needs to immediately insist that provisional ballots be given to the voters in question. If election officers resist this request, poll watchers need to immediately go to the State Board of Elections, if there is resistance then they should go to the Circuit Court.

What we need on election day are legal SWAT teams that can go to each precinct and make sure that the t’s are crossed and i’s dotted. They can move quickly to rectify any hiccups. Think of this as a 5-minute rule. If we don’t have SWAT teams in place we can’t react.In the Joshua Cole election, was there information that we could have caught ahead of the election? Why didn’t we catch the fact that somebody would be getting the wrong ballot? We need to be liberal in our use of provisional ballots, because this is the only way to preserve evidence of mistakes. If people cast their ballot, you can’t trace it back to them. But you can with provisional ballots. If you don’t solve a voting problem immediately, you’ll probably never solve it. The Democratic Party did have a war room on election day in 2017. What’s happened is that it lost its aggressiveness.  Most voting happens in the morning before work and in the evening after work. This only concentrates the need to catch things in the morning.

Possible remedies include making voting day a holiday; moving voting day to a weekend (but this might step on someone’s Sabbath day) or allow online voting.

 

Part 4

On election day, we don’t know what’s going on in real time. Donte noted that he didn’t have enough volunteers covering the polls as “poll watchers” handing out sample ballots to be able to call in a legal SWAT team should an election day issue have arisen. There is always a need for volunteers to work the polls on election day. You can also get paid to be an election official. These are the same people who participant in any potential recounts. Who hires them? Local general registrars. They actually scramble to find people to work as election officials. Anyone who is eligible to vote and registered to vote can work as an election official. You do not have to be a lawyer. If you volunteer it is almost guaranteed that you will be accepted. There is a comprehensive, easy to follow training process. Consider part of it your civic duty. It’s rewarding.

There are election officer roles such as checking ideas, checking registrations, handing out ballots, ushering people out the door.

Make a plan to vote. Know your precinct. Know your polling place. Making a plan to vote drives up voting participation by at least 4 percent.

Overview of the three recounts in the 2017 VA House elections

Donte Tanner was up 68 votes on election night. During the canvass there were some transcribing errors, human errors which caused a 183 vote swing.  No foul play. In Joshua Cole, District 28 against Bob Thomas, the moral of the story is that there was a 3-digit spread between them. 73-74 vote gap between them. Some people who had long voted in the 28th district were given ballots for the 88th District or the 2nd District. The Republican registrar who moved some people into the wrong district died before election day, so her motives will forever remain unknown. When voters protested that they were given the wrong ballots and tried to show where they lived on the official precinct map, the election officers took down the map! There were twice the amount of people–about 147 or so–were issued the wrong ballot. This could have swung the election. Secondly, there were absentee ballots that were never picked up by registrar’s office. They were sitting in the post office on election day before 7 PM but were not picked up. More than enough votes to swing the election.

What’s the remedy? The ligation in the 28th did not find an appropriate remedy. It looks like the proper remedy would have been a new election. The problems were imposed by mal-administration by the state. That’s what the Washington Post called for. Unfortunately, the Federal judge did not believe there was a widespread or systemic issue that could have justified a remedy. There were no Democratic party officials on site to spot the issue and react quickly to demand provisional ballots be cast.

 

Part 5


Getting Ready to Vote on Election Day

An effective get out the vote plan is a multi-pronged process. What are the deadlines? Registration is 22 days before the election. Absentee ballot applications are due 10 days before an election. Mailing them in is 5 days. In person is 3 days. We don’t have early voting, but absentee voting excuses include long commutes, being a caregiver, travel and other myriad reasons. So, if you serve as an election officer outside of your own precinct, you can vote absentee, and you should do it in person to be most assured that it will be counted.

Voter Education

Know who is on the ballot. We often think of the ballot from the top down. President or Governor. But if all politics are local. A good motivation for voters to get out and vote is to talk about local issue such as roads and local school boards. Talking to constituents about local issues helped increase voter turn out in the Virginia House of Delegates races in 2017.

Know the stakes in any race. In 2017 the stakes were to flip the House of Delegates. Know more about the Virginia legislature. The House of Delegates is made of up 100 members. It meets 45 days out of the year in odd years, 60 days in even years.

A plan of vote should be detailed. Know what time of day you plan to vote. Email yourself the address of your polling place, and everybody on the ballot for whom you plan to vote. Hold yourself accountable no matter your party. Remind people of the power they have and how close elections can come down to so they realize that their vote DOES matter. As the Shelly Symonds race shows, it can come down to a single vote.

Can we create legal funds? Can we support grassroots groups that help get out the vote? How will we bring together citizen groups, legal advocates, and public advocates for civic engagement? Civic engagement is not just about casting my ballot and saying my job is done. It’s not about having other people speak for us, but we’re giving ourselves to tools to have our own voice. In a purple state, where elections will be close, we can’t just rely on the political party systems to ensure fair elections. Citizens have to get involved and they play a role in amplifying their voices and empowering themselves.

Always vote. When you go to the polls, do not leave until you have cast a ballot. If you mess up filling it out, you can ask for a new ballot and start over. If there is a question about whether you can vote in that precinct, cast a provisional ballot. All elections are not just local, they are personal…to you, to your neighbor, to your community. The people we send to Richmond, to Washington, our governor, our President, their decisions affect us directly. Schools, roads, immigration. All elections are personal. And Virginia is our district. Issues like Medicaid expansion might not have been on listed on the ballot this election but they were on the ballot. Know where candidates stand on issues, and if they aren’t with you, you have to decide you you can influence more as a citizen, and that’s the person to support.

Let’s break it down. As Virginians we literally have an election every single year. So what can we do as citizens to get involved? Congress, house of delegates, school board, board of supervisors or dog catcher. Know this website where you can go to see what district you live in, register to vote, check your registration status, see all deadline dates, find your polling place, see who is on the ballot, check overseas ballot rules, check election night results and much more:

 Elections.virginia.org

Make the Primary June 12th an Facebook event. Blast it out to your friends. Facebook will send people out reminders.

When you knock on a door, you are often surprised at what people don’t know. They often don’t know there is an election coming up. They don’t know what the House of Delegates is. Make it personal You can tell people whose biggest issue is education, did you know the House of Delegates decides funding for education throughout the state. It’s an education process. Voters are overwhelmed on a daily basis with information, often about Trump, but they don’t know enough about what is happening in state government, or locally. 2019 is the Virginia Senate elections when all 40 state senators are up for reelection. They serve 4-year terms. House of Delegates serve 2-year terms.

Part 6


You can go to VPAP.ORG and sign up for a daily email of Virginia-specific political news. They have voting records of current elected officials. So you can pull up voting records and find out if a person voted against a budget item, or against teacher or voted something that might help. These are free resources, written to be easily understood by the average person. As political advocates, we have to be educational every time we touch base with people who aren’t in the political bubble. Getting in the know isn’t as hard as you think.
As a candidate, when you talk to a voter, you are a sales person in a good way. You are the product. It’s what’s in your heart. It’s what’s in your mind. It’s the positions you take. The first step in approaching a voter is to get them interested and inspired by you. For those who are going to organize these get out the vote efforts, you have to educate them on how to vote, where to vote, and when to vote. That’s elections.virginia.com. You’ve got to follow up with a phone call, and email, or face to face. “Hey, Steve, you were going to vote absentee ballot, did you do that?” If you don’t follow up the voter who was inspired by your message, and you have educated them, it’s disgraceful you are an organization tbat tries to get out the vote. That’s the responsibility of candidates and parties as well.

A third of all votes are now by absentee ballots across the country, and we’re going to see a greater use of them in Virginia. We know who has applied for a ballot, and we know what ballots have been returned. So in the case of District 28, where are the missing ballots? We need to ensure that the system is responsible and responsive, and we can do that before election day, and on election morning, but we can’t do it on election night.

So on election day, observing groups, the League of Woman’s Voters and citizens and activists groups like Indivisible need a timeline so that by 5:30 p.m. they can ask if all the absentee ballots have come in. They can prompt officials to check the post office, especially if it’s a close election. We need to have our voices heard. We’ve heard this buzzword, “the integrity” of our elections, but what does that really mean? It means elections are an extension of the people’s will. We need to call on our leaders and hold them accountable.

What else can volunteers can do on election day? I was surprised and disheartened to see how many Republicans where out there working the polls on election day. The Democrats struggled to find volunteers. I know it was a rainy day, but it rained on the Republicans. We had a whole bunch of people knocking on doors, but we should have had more people spread out among the precincts at the polls. You need both. We need to make sure both parties are fully staffing elections, and it appears that one party is doing a better job of it. Starting in 2001, the party of Governor Warner dominated both get out the polls and the get out the vote. We need to go back to the basics. We know what to do. There is a role for everyone. Because treatment of absentee ballots get to the integrity of our elections, 501-3c groups could be justified in playing a role in verifying all absentee ballots have been counted. If it made a difference in a House race, and it probably did, then there are consequences of not otherwise winning a majority, because it blocks what we care about, school funding, Medicaid expansion for 400,000, people, ERA, protection of LBTQ rights. The same holds true for the other party. This transcends partisanship. It’s about citizenship. It’s about how the longest sitting deliberative body in the world is governed. If we don’t get in the game, we can’t blame anyone but ourselves.

Mailing absentee ballots to your voters is allowed and is like banking votes. We closed out every day during the race chasing absentee ballots and making sure they were sent in. The people who requested absentee ballots is a crucial list.

In previous years we didn’t have the volunteers to do everything at once, but this year we had the volunteer who were fired up and resisting. We just have make sure we more organized on where we send resources on election day and prior to it.  There is so much on a campaign to do and not enough time to do it.

One of the best ideas I’ve heard this year was postcard writing. It got volunteers engaged and it got out the vote. Donte got a postcard for himself: VOTE FOR DONTE. Everybody wants to do something, and now we have something that some people can do, which brings out more volunteers.

Run for office if you can. Nobody at the table regretted running for office. It is a moving and rewarding experience. It’s something that brings great pride and memories. For anyone who has knocked on a door (as a candidate or volunteer), every single conversation you have had at a door is part of you. It’s a personal and intimate act. You can talk about what things matters to them the most. You will be surprised at what you learn.

When we go out and support a candidate as volunteers, it becomes personal. We choose who represents us, people-to-people.

 

Part 7


When this country was founded unless you were a rich, white land owning male you did not have a seat at the table in governing. For every single one of us, in some way, our ancestors fought, or bled, cried or died for us to get to vote. For us to allow elections to slip through our hands due to irregularities in our voting process, not only is it a disservice to us, but it is a disservice to those who ancestors who put everything on the line to give us this right to vote.

Every voice has an impact. Candidates running have an impact on the agenda as it’s decided. As citizens, we need to be careful not to allow our neglect or lack of interest to enable a minor to control the agenda. We don’t have anything close to universal voting in the Commonwealth. We need to continue to develop our voice as citizens so those who represent us in Richmond or government offices closer to home represent the voice of the majority. In election, the rules matter. Heart matters.  We can’t let the minority find a way to cheat the majority out of the will of the people.

The administration of the electoral process needs work. If you don’t vote, you’re letting someone else take responsibility for you. It’s everyone’s responsibility.

Conventional wisdom was that Democrats would pick up 4-6 seats in the House of Delegates. Gene Rossi predicted 8. Donte Tanner predicted 17! If we could get the turn out, we could flip the house, and we nearly did. 1 vote decided a district. But if you do the math on how close so many district races are, 1,500 votes could possibly give the Democrats 66 seats. That’s a small margin. The people still hold the power. If you don’t agree with the what the person at the table is saying, tell them. If their not listening, replace them. If you can’t replace them, bring your own chair and make sure they are held accountable.

Final Thoughts

We have a lot of work to do. We had a thread on Thunderdome of what worked and what did not work on last year’s elections. Plus3 alone had 27 districts involved. We have to get back to what works for each district to win elections.

Further Reading

Wrongly assigned voters found in tight Virginia House race (Richmond Times Dispatch, May 11, 2018)

Voting irregularity found in controversial 94th District election (Daily Press, May 10, 2018)

Virginia works to improve voting process before mid-term elections (Capitol News Service, May 3,  2018)

Lesson from Va. recounts: Mark those ballots clearly or ask for a new ballot (Wtop, Jan 5, 2018)