In Part One of our series, we commended the state of Virginia’s effort to coordinate its recount and contest procedures for a presidential election in a way to enable the state to meet the Safe Harbor Deadline. And Virginia is a state with particularly noticeable success in resolving high-profile disputes in statewide elections. From a U.S. Senate election in 1978 to a gubernatorial election in 1989 to two recent Attorney General elections, one in 2005 and another in 2013, Virginia has managed to reach closure of these disputed elections with relative dispatch—by mid-December in all four instances—and without contentious or protracted litigation. See Edward B. Folley, Ballot Battles: The History of Disputed Elections in the United States, 248, 334-336 & Appendix (2016). With this solid track record, Virginia deserves to have its special procedures for a disputed presidential election evaluated with deference and respect.

Nonetheless, for several reasons the particular provisions that Virginia has adopted, while superior to those in other states, remain less than optimal. First and foremost, contrary to the approach reflected in Part III and especially in § 303 of its Procedures, Virginia does not begin to implement its special provisions tailored to the exigent circumstances of a disputed presidential election until two weeks after Election Day. There is no statutory mechanism in Virginia for triggering expedition in a disputed presidential election immediately after Election Day in the circumstance when the nation and world know that the presidential election “is too close to call” and the outcome hangs on Virginia. Even in this situation, Virginia law expends the first two-fifths of the five-week period available under the Safe Harbor Deadline by proceeding as if the situation involved a conventional nonpresidential election. Only during the latter three-fifths of the five-week period do special procedures for a disputed presidential election begin to kick in. Waiting two-fifths of the way through the five-week period available is unwise, given the urgency of an unresolved and potentially litigation-filled presidential election. One cannot predict exactly what issues might arise during the five-week period, and there easily might end up being not enough time available at the back end because of the failure to enter into special expedited mode at the beginning of the process.

Both § 801.1, the presidential-recount provision, and § 805, the presidential-contest provision, explicitly refer to the certification of the election under § 24.2-679 as the predicate for commencing special expedited proceedings in a disputed presidential election. A candidate cannot formally request a recount, and thus start the official recount process, until there has been a certification of the election under § 679 and it is determined that the candidate is within one percent of the certified winner. See § 800. Likewise, a candidate cannot contest a presidential election under § 805 until after it has been certified under § 679.

But § 679 applies to all elections not just presidential ones. And it provides that the State Board of Elections shall meet to certify a November election “on the third Monday in November.” This day will always be 13 days after Election Day, which is the first Tuesday after the first Monday. Thus, there will always be a passage of essentially two weeks before the particular presidential provisions of
§§ 801.1 and 805 apply. Virginia law sets forth rules for what must occur prior to the State Board’s certification under § 679—rules that govern what this Part III terms the conduct of the canvass. But these pre-certification rules apply generally to presidential and nonpresidential elections alike, and there is no provision for special expedition of the canvass solely as it pertains to an unresolved and disputable presidential election. Thus, Virginia law fails to take advantage of the possibility of expediting proceedings in an unresolved residential election immediately after Election Day (and certainly before the canvass is certified two weeks later).

Somewhat acknowledging this deficiency, § 801.1—the provision for a presidential recount—contains this hortatory request: “Presidential candidates who anticipate the possibility of asking for a recount are encouraged to so notify the State Board by letter as soon as possible after election day.” But this kind of supplicating language—almost beseeching or imploring—is odd for a statute. It certainly is no substitute for the kind of mandatory trigger of an expedited presidential recount that Part III of the Election Administration Principles and its Procedures contain.

All of the research and analysis undertaken as preparation for Part III, including meetings with local and statewide election officials experienced with the conduct of high-profile recounts, has led to the judgment that all states, including Virginia, would benefit from a provision that triggers expedition in an unresolved presidential election immediately after Election Day. This expedition, as provided by Part III and its Procedures, entails immediate commencement of the recount, rather than treating the canvass as if it were a conventional nonpresidential election and waiting until certification of the canvass before beginning the expedited presidential recount.

A second and somewhat related concern about Virginia’s procedures for a disputed presidential election is their omission of any specified process for addressing issues that arise concerning the eligibility of disputed ballots, like those that afflicted Washington’s 2004 gubernatorial election or Minnesota’s 2008 U.S. Senate election. Section 24.2-802, which governs presidential as well as nonpresidential recounts, expressly states: “a recount shall be based on votes cast in the election and shall not take into account any absentee ballots or provisional ballots sought to be cast but ruled invalid.” Presumably, if evidence showed that enough invalidated absentee or provisional ballots had been wrongly invalidated to make a difference in the outcome of the race—the kind of claim at the heart of Minnesota’s 2008 election and also prominent in Washington’s 2004 dispute—this claim could be litigated in a contest under § 805.

But as discussed more fully in the Reporters’ Note to § 312 (see also the Comment to § 310), experience shows that in a high-profile disputed election, there will be overwhelming pressure to litigate the eligibility of these ballots prior to certification of the canvass, rather than waiting for a judicial contest. This pressure, already intense in a U.S. Senate or gubernatorial election, would be withering if the presidency is on the line. Thus, during the two weeks prior to certification of the canvass in Virginia, if there were a serious dispute over uncounted but potentially eligible ballots, as in Minnesota or Washington, the candidates would pursue all possible avenues to litigate the eligibility of those ballots immediately, in some sort of pre-certification proceeding.

Virginia, however, has no provision to handle this contingency. Accordingly, the inevitable litigation—perhaps seeking a writ of mandamus or invoking some other form of emergency judicial relief—will be more disorderly and chaotic than would be the case if a statute specified a procedure to handle this kind of claim. This disorder and chaos invites the kind of delay that risks the inability to complete proceedings within the Safe Harbor Deadline, thereby defeating Virginia’s explicit goal for its special recount and contest procedures for a disputed presidential election. Consequently, like other states, Virginia would be better served by having a special proceeding for judicial review of ballot-eligibility determinations made during the canvass, like the special proceeding set forth in § 310 of these Procedures.

Finally, it is unclear whether Virginia permits an appeal to the state’s supreme court in a contest under § 805. Virginia expressly precludes any appeal in a recount under § 801.1. See § 802 (“The recount proceeding shall be final and not subject to appeal.”). But the relevant statutes appear to contain no comparable provision, one way or the other, regarding the possibility of an appeal in a judicial contest of a presidential election. Given the explicit obligation of the three-judge contest court to complete its adjudication of the contest by the end of the Safe Harbor Deadline, but not sooner, there would be no time for an appeal if the contest court used up all the time available to it under § 805. Yet in a disputed presidential election, if a candidate thought an issue of substance might interest the members of the Virginia Supreme Court, the candidate is likely to knock on that court’s door by way of a writ of mandamus or otherwise, unless explicitly prohibited from doing so. Cf. Kirk v. Carter, 202 Va. 335, 117 S.E.2d 135 (1960) (mandamus granted by Virginia Supreme Court of Appeals to require convening of three-judge contest court). Thus, if such a mandamus petition were filed in the Virginia Supreme Court, the state’s statutes leave uncertain whether the state could complete its available judicial proceedings in a disputed presidential election by the end of the Safe Harbor Deadline, as evidently desired.

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

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, Presidential Elections and Majority Rule (Oxford University Press, 2020), excavates the long-forgotten philosophical premises of how the Electoral College is supposed to work. His 2016 book, Ballot Battles: The History of Disputed Elections in the United States, was named Finalist for the David J. Langum, Sr. Prize in American Legal History and listed as one of 100 “must-read books about law and social justice.” While 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.


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