The idea of expedited procedures is hardly foreign to American law. Indeed, its application to elections—and specifically recounts—is not without precedent. It is perhaps surprising that more states have not adopted specific procedural mechanisms for the expedited adjudication of disputes over the counting of ballots in a presidential election.

One state to have undertaken an effort to coordinate recount and contest procedures in a presidential election so as to enable the state to meet the Safe Harbor Deadline is Virginia. Virginia Code § 24.2-801.1 sets forth a special recount procedure for a presidential election, requiring the recount to be “completed, in accordance with the provisions of 3 U.S.C. § 5, at least six days before the time fixed for the meeting of the electors.” Virginia Code § 24.2-805, in turn, sets forth a special contest procedure for a presidential election, also requiring the contest to be “completed, in accordance with the provisions of 3 U.S.C. § 5, at least six days before the time fixed for the meeting of the electors.”

Moreover, these two provisions cross-reference each other in an effort to work together to achieve an expeditious resolution of a disputed presidential election. Both the recount and contest proceedings must commence within two days after certification of the election by the State Board of Elections (and are commenced by a candidate who is not the certified winner filing a petition to initiate a recount or contest[1]). Section 805 explicitly mandates that “the contest shall not wait upon the results of any recount.”

In addition, § 801.1 provides that the recount shall be supervised by a specially constituted three-judge court, just as § 805 provides for the adjudication of a contest of a presidential election. This presidential-contest court, under § 805, is “composed of the chief judge of [the Richmond] circuit court and two circuit court judges of circuits not contiguous to the City of Richmond appointed by the Chief Justice of the Supreme Court of Virginia.” Similarly, § 801.1 states:

As soon as a [presidential recount] petition is filed, the chief judge of the [Richmond] Circuit Court shall promptly notify the Chief Justice of the Supreme Court of Virginia, who shall designate two other judges to sit with the chief judge, and the court shall be constituted and sit in all respects as a [presidential-contest] court appointed and sitting under § 24.2-805.

This statutory language does not exactly say that the three judges who supervise the recount will be the same individuals as the three judges who will adjudicate the contest. Under the two provisions, the chief judge of the Richmond circuit court must be one of the three judges, so the recount and contest panels must overlap at least to that extent. But the statutory language does not entirely rule out that the Chief Justice of the Virginia Supreme Court could appoint two circuit judges, A and B, to supervise the recount panel and two different circuit judges, C and D, to adjudicate the contest. That reading of the statute would defeat the efficiency to be gained from having all three judges be identical for both the recount and contest of a presidential election, and thus that interpretation of the statute should be disfavored for that reason alone. In any event, there is nothing in the statute to prevent the Chief Justice from serving the value of efficiency by exercising the appointment authority to make all three judges identical for both functions (even if the statute does not strictly so require).

This piece presents information contained in Revised Tentative Draft No. 1 (October 11, 2016), including proposed black letter, Comments, and Reporters’ Notes.


[1] To initiate a recount, the margin between the petitioning candidate and the certified winner must be “not more than one percent of the total votes cast for the two such candidates.” VA. CODE § 24.2-800(B).

Edward B. Foley

Reporter, Principles of the Law, Election Administration

Edward Foley (known as “Ned”) directs Election Law @ Moritz at Ohio State University, Moritz College of Law, where he also holds the Ebersold Chair in Constitutional Law. His book, Ballot Battles: The History of Disputed Elections in the United States, was published January of 2016. While Professor Foley has special expertise on the topics of recounts and provisional ballots, he has also co-authored the casebook, Election Law and Litigation: The Judicial Regulation of Politics (Aspen 2014), which covers all aspects of election law.

Sarah H. Cleveland

Coordinating Reporter, Restatement of U.S. Foreign Relations Law

Sarah Cleveland is the Louis Henkin Professor of Human and Constitutional Rights and faculty director of the Human Rights Institute at Columbia Law School. She is a noted expert in international law and the constitutional law of U.S. foreign relations, with particular interests in the status of international law in U.S. domestic law, international and comparative human rights law, international humanitarian law, and national security.

0 Comments

Trackbacks/Pingbacks

  1. A Look at Virginia’s Presidential Recount Procedures: Part II - The ALI Adviser - […] Part One of our series, we commended the state of Virginia’s effort to coordinate its recount and contest […]

Submit a Comment

Your email address will not be published. Required fields are marked *