Provisional Ballot Battles Loom Ahead Of Virginia Recount

Amid wild rumors, frantic fundraising and legal maneuvering, Virginia’s attorney general election hangs in the balance. Shades of Florida 2000?
OLD DOMINION THROWDOWN: Republicans are hoping that thousands of provisional ballots and a statewide recount keep the Attorney General's Office in their hands.

OLD DOMINION THROWDOWN: Republicans are hoping that thousands of provisional ballots and a statewide recount keep the Attorney General’s Office in their hands.

By Kenric Ward | Watchdog.org Virginia Bureau

ALEXANDRIA, Va. — As of Thursday afternoon, Republican Mark Obenshain held a 681 vote lead over Democrat Mark Herring, out of 2.2 million ballots cast.

But more ballots are still out there. Thousands of provisional votes — 492 in Fairfax County alone — have yet to be counted.

Both parties are gearing up for a county-by-county fight to include or exclude those ballots, which were cast by people who didn’t present legally permissible identification at the polls.

All these battles come before the inevitable statewide recount. Virginia election results are due to be finalized Nov. 25.

Voters have until Friday to bring a copy of their ID to their local electoral board and explain why they voted provisionally.

Brian Schoeneman, secretary of the electoral board in Fairfax County, the commonwealth’s largest, said voters can be represented by legal counsel.

“These are closed meetings, but the political parties are allowed a single representative to observe,” Schoeneman told Watchdog.org.

“The staff also reviews every provisional vote to determine why the individual had to vote that way, and that information is presented to the board in open session.

“Once we have given all the voters who show up an opportunity to be heard and we have the staff research, the board votes whether to accept each ballot,” Schoeneman explained.

Election observers say subjectivity can creep into the deliberations — like the interpretation of those infamous hanging chads in Florida during the Bush-Gore showdown.

Schoeneman said Virginia’s process of tossing or accepting provisional ballots protects privacy.

“When (the board) votes, we simply have a number, the reasons for the issue and the precinct. We don’t have names, and the ballots are sealed unless we vote to count the ballot. If the ballot is counted, we open it and count it. Those that aren’t counted are never opened and are given to the clerk of the circuit court unopened,” he said.

Citing the Virginia Code section covering provisional votes, Schoenman said there are “certain situations that are relatively clear.” The attorney also acknowledged that “others are difficult.”

“The process ensures that there is due process and the level of subjectivity is minimal,” he said.

And what if, as seems likely, a provisional voter does not appear to plead his or her case by Friday? (The deadline designated on the ballot.)

“We will still adjudicate every ballot,” Schoeneman said. “We just don’t have the benefit of any evidence or explanation the voter may have, just what they reported at the polling place and the staff research on those issues.

“We have very few folks come in and present evidence, but a good number — most, if my memory serves — are accepted and counted.”

The Virginia State Board of Elections hasn’t said exactly how many provisional ballots remained uncounted statewide. Against this backdrop, Republicans and Democrats are staffing up, and cranking the rumor mill.

Democrats alleged on social-media sites Wednesday that some 5,000 absentee ballots had yet to be tallied in Fairfax. Schoeneman denied that.

“They’ve all been counted,” he told Watchdog. State officials confirmed the absentee count was also complete.

Democrats would sweep all three of Virginia’s executive offices if Herring, a liberal from Leesburg, can pull off a victory over his conservative state Senate colleague from Harrisonburg.

In an email, Herring warned provisional voters, “Your ballot is at risk of being thrown out.“

Looking ahead to the recount, state Republican Party Chairman Pat Mullins called for donors to step up one more time.

“A recount will mean putting 134 teams on the ground — one in every city and county in Virginia. We can’t do this without your help,” Mullins said in an email.

True the Vote, a Texas-based election watchdog group, said it is “keeping a close eye on counties like Chesterfield that refused to follow (state) guidelines and remove duplicate voter registrations ahead of the election.”

Chesterfield, south of Richmond, was among the counties where the Republican ticket noticeably underperformed, compared with 2009.

“Some jurisdictions stated they would run the removal program post-election … perhaps in January,” said TTV spokesman Logan Churchwell. “We’ll keep them to their word as we’ve already given statutory notice.”

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Kenric Ward
Kenric Ward is chief of Watchdog.org's Virginia Bureau. He has been a reporter and editor at the San Jose Mercury News, Las Vegas Sun and several other newspapers. Most recently, he was chief political correspondent for Sunshine State News in Florida. Ward holds a bachelor's degree in political science from UCLA and resides in Fredericksburg, Va.

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