Friday, November 16, 2007

How close is close enough?

Last week's elections left (at least) two very close elections in Virginia, based on the unofficial counts. In Spotsylvania County, the Clerk of the Court race, the two leading contenders are separated by 63 votes, with 7,420 (38.46%) for Christy Jett vs. 7,357 (38.13%) for Paul Metzger out of a total of 19,295 votes cast. (Full details here.) In Fairfax County, out of 37,185 votes cast for the 37th State Senate seat, Ken Cuccinelli has 18,602 votes (50.02%) for a lead of 92 votes over Janet Oleszek (18,510 votes or 49.77%). (Full details here; Oleszek has announced she's seeking a recount.

What does this mean? Both Spotsylvania and Fairfax counties use paperless Direct Recording Electronic (DRE) voting systems, meaning that the only record of the votes is what's in memory cards on the voting machines. As has been amply demonstrated, there's lots of ways that these can be wrong, whether by accident or malicious intent.

Perhaps more critically, Virginia law is very clear on what can and can't be done in case of a recount. Section 24.2-802(D)(2) says "For direct recording electronic machines (DREs), the recount officials shall open the envelopes with the printouts and read the results from the printouts. If the printout is not clear, or on the request of the court, the recount officials shall rerun the printout from the machine or examine the counters as appropriate. [...] There shall be only one redetermination of the vote in each precinct." Section (H) notes "The recount proceeding shall be final and not subject to appeal."

Virginia is no stranger to close elections. In 2005, the Attorney General's race was decided by less than 0.02% (that's two hundredths of a percent, not two precent), and in 2006 the Senate race was decided by less than 0.4%.

Thus, there are no meaningful recounts possible in Virginia. All you can do is total up the tapes from the individual machines - but you can't go looking to see if there's an error in the software or the ballot programming. I'd love to have the opportunity to convince a judge that the law violates the constitutional right to have your vote counted, but I doubt I'll have that chance.

For those of us who believe the voting requires paper trails, our best allies are those who lose elections, regardless of their party. Those who win are much less likely to want to risk opening their election results to inspection.


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