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2001 SESSION

017523406
SENATE BILL NO. 929
AMENDMENT IN THE NATURE OF A SUBSTITUTE
(Proposed by the Senate Committee on Privileges and Elections
on January 30, 2001)
(Patron Prior to Substitute - Senator Byrne)
A BILL to amend and reenact §§ 24.2-644 and 24.2-802 of the Code of Virginia and to amend the Code of Virginia by adding in Article 2 of Chapter 1 of Title 24.2 a section numbered 24.2-105.3, relating to hand counting of ballots; State Board of Elections to prescribe standards for determining intent of voter.

Be it enacted by the General Assembly of Virginia:

1. That §§ 24.2-644 and 24.2-802 of the Code of Virginia are amended and reenacted, and that the Code of Virginia is amended by adding in Article 2 of Chapter 1 of Title 24.2 a section numbered 24.2-105.3 as follows:

§ 24.2-105.3. Standards for marking certain ballots.

On or before September 1, 2001, the State Board shall prescribe and publish standards, for determining whether a ballot has been properly marked or punched so as to indicate the voter's intent to vote for a candidate, to be applied when paper ballots and ballots of the type that are designed to be voted by being inserted in an electronic counting device are counted or recounted by hand.

The provisions of this section shall expire on July 1, 2002.

§ 24.2-644. Voting by paper ballot; voting for presidential electors; write-in votes.

A. The qualified voter shall take the official paper ballot and enter the voting booth. After entering the voting booth, the qualified voter shall mark immediately preceding the name of each candidate for whom he wishes to vote a check (/cm) or a cross (X or +) or a line (-) in the square provided for such purpose, leaving unmarked the square preceding the name of each candidate for whom he does not wish to vote. Any ballot marked so that the intent of the voter is clear, consistent with the standards set by the State Board of Elections pursuant to § 24.2-105.3, shall be counted.

B. The qualified voter at a presidential election shall mark the square preceding the names and party designation for his choice of candidates for President and Vice-President. His ballot so marked shall be counted as if he had marked squares preceding the names of the individual electors affiliated with his choice for President and Vice-President. The qualified voter at a presidential election may cast a write-in vote for President and Vice-President as provided in subsections C and D of this section.

C. At all elections except primary elections it shall be lawful for any voter to vote for any person other than the listed candidates for the office by writing or hand printing the person's name on the official ballot. No check or other mark shall be required to cast a valid write-in vote. Write-in votes for President and Vice-President shall be counted only for candidates who have filed a joint declaration of intent to be write-in candidates for the offices with the Secretary of the State Board not less than ten days before the date of the presidential election. The declaration of intent shall be on a form prescribed by the State Board and shall include a list of presidential electors pledged to those candidates which equals the whole number of senators and representatives to which the Commonwealth at that time is entitled in the Congress of the United States. A write-in vote cast for candidates for President and Vice-President, or for a candidate for President only, shall be counted for the individual electors listed on the declaration of intent as pledged to those candidates.

D. No write-in vote shall be counted unless the name is entered on the ballot in conformance with this section. No write-in vote shall be counted when it is apparent to the officers of election that a voter has voted for the same person for the same office more than one time. No write-in vote shall be counted for an office for any person whose name appears on the ballot as a candidate for that office. If two or more persons are to be elected to the same office, a voter may vote for one or more persons whose names do appear on the ballot and one or more persons whose names do not appear on the ballot, provided that the total number of votes cast by him for that office does not exceed the number of persons to be elected to that office.

§ 24.2-802. Procedure for recount.

A. Within seven days of the filing of the petition, the chief judge of the circuit court shall call a preliminary hearing at which (i) motions may be disposed of and (ii) the rules of procedure may be fixed, both subject to review by the full court. As part of the preliminary hearing, the chief judge may permit the petitioner and his counsel, together with each other party and his counsel and at least two members of the electoral board and the custodians, to examine any mechanical or direct electronic voting device of the type that prints returns when the print-out sheets are not clearly legible. If the number of absentee votes cast in the election is sufficient to change the result of the election, the petitioner and his counsel and each other party and their counsel, under supervision of the electoral board and its agents, shall also have access to absentee ballots cast in the election for examination purposes. The petitioner and his counsel and each other party and their counsel under supervision of the electoral board and its agents shall also have access to pollbooks and other materials used in the election for examination purposes. The chief judge during the preliminary hearing shall review all security measures taken for all ballots and voting devices and direct, as he deems necessary, all appropriate measures to ensure proper security to conduct the recount.

The chief judge, subject to review by the full court, may set the place or places for the recount and may order the delivery of election materials to a central location and the transportation of voting devices to a central location in each county or city under appropriate safeguards.

After the full court is appointed under § 24.2-801, it shall call a hearing at which all motions shall be disposed of and the rules of procedure shall be fixed finally. The court shall call for the advice and cooperation of the State Board or any local electoral board, as appropriate, and such boards shall have the duty and authority to assist the court. The court shall fix procedures, consistent with the standards set by the State Board pursuant to § 24.2-105.3 for hand counting ballots, that shall provide for the accurate determination of votes in the election. Commencing upon the filing of the recount, nothing shall prevent the discovery or disclosure of any evidence that could be used pursuant to § 24.2-803 in contesting the results of an election.

B. The court shall permit each candidate, or petitioner and governing body or chief executive officer, to select an equal number of the officers of election to be recount officials and to count ballots, or in the case of mechanical or direct electronic voting devices to redetermine the vote. The number shall be fixed by the court and be sufficient to conduct the recount within a reasonable period. The court may permit each party to the recount to submit a list of alternate officials in the number the court directs. There shall be at least one team of recount officials to recount paper ballots and to redetermine the vote cast on mechanical or direct electronic devices of the type that prints returns for the election district at large in which the recount is being held. There shall be at least one team from each locality in the election district to redetermine the vote on other types of mechanical voting devices. There shall be at least one team from each locality using electronic counting devices to insert the ballots into one or more counting devices. The counting devices shall be programmed to count only votes cast for parties to the recount or for or against the question in a referendum recount. Each team shall be composed of one representative of each party.

The court may provide that if, at the time of the recount, any recount official fails to appear, the remaining recount officials present shall appoint substitute recount officials who shall possess the same qualifications as the recount officials for whom they substitute. The court may select pairs of recount coordinators to serve for each county or city in the election district who shall be members of the county or city electoral board and represent different political parties. The court shall have authority to summon such officials and coordinators. On request of a party to the recount, the court shall allow each party to appoint one representative observer for each team of recount officials. The expenses of its representatives shall be borne by each party.

C. The court (i) shall supervise the recount and (ii) may require delivery of any or all pollbooks used, any or all ballots cast at the election, and absentee ballots sought to be cast but ruled invalid or may assume supervision thereof through the recount coordinators and officials. The court shall permit the parties, recount officials, and counsel to examine all ballots cast in the election, including paper ballots, ballots cast on mechanical voting devices, ballots counted on electronic counting devices, and all absentee ballots sought to be cast but ruled invalid, for the purpose of ascertaining the number of ballots cast for each of the party candidates or for or against the question. At the conclusion of the recount of each precinct, the recount officials shall write down (i) in the case of mechanical or direct electronic voting devices the redetermination of the vote and (ii) the number of valid ballots cast, this number being obtained from the ballots cast in the precinct, or from the ballots cast as shown on the statement of results if the ballots cannot be found, for each of the two candidates or for and against the question. They shall submit the ballots or the statement of results used, as to the validity of which questions exist, to the court. The written statement of any one recount official challenging a ballot shall be sufficient to require its submission to the court. If, on all mechanical or direct electronic voting devices, the number of persons voting in the election, or the number of votes cast for the office or on the question, totals more than the number of names on the pollbooks of persons voting on the devices, the figures recorded by the devices shall be accepted as correct.

At the conclusion of the recount of all precincts, after allowing the parties to inspect the questioned ballots, and after hearing arguments, the court shall rule on the validity of all questioned ballots and votes. After determining all matters pertaining to the recount and redetermination of the vote as raised by the parties, the court shall certify to the State Board and the electoral board or boards (i) the vote for each party to the recount and declare the person who received the higher number of votes to be nominated or elected, as appropriate, or (ii) the votes for and against the question and declare the outcome of the referendum.

D. Costs of the recount shall be assessed against the counties and cities comprising the election district when (i) the candidate petitioning for the recount is declared the winner; (ii) the petitioners in a recount of a referendum win the recount; or (iii) there was between the candidate apparently nominated or elected and the candidate petitioning for the recount a difference of not more than one-half of one percent of the total vote cast for the two such candidates as determined by the State Board or electoral board prior to the recount. Otherwise the costs of the recount shall be assessed against the candidate petitioning for the recount or the petitioners in a recount of a referendum. If more than one candidate petitions for a recount, the court may assess costs in an equitable manner between the counties and cities and any such candidate if both are liable for costs under this subsection. Costs incurred to date shall be assessed against any candidate or petitioner who defaults or withdraws his petition.

E. The court shall determine the costs of the recount subject to the following limitations: (i) no per diem payment shall be assessed for salaried election officials; (ii) no per diem payment to officers of election serving as recount officials shall exceed two-thirds of the per diem paid such officers by the county or city for service on election day; and (iii) per diem payments to alternates shall be allowed only if they serve.

F. Any petitioner who may be assessed with costs under subsection D of this section shall post a bond with surety with the court in the amount of ten dollars per precinct in the area subject to recount. If the petitioner wins the recount, the bond shall not be forfeit. If the petitioner loses the recount, the bond shall be forfeit only to the extent of the assessed costs. If the assessed costs exceed the bond, he shall be liable for such excess.

G. The recount proceeding shall be final and not subject to appeal.

2. That the State Board of Elections shall recommend to the General Assembly permanent standards for determining whether a ballot has been properly marked or punched so as to indicate the voter's intent to vote for a candidate, to be applied when paper ballots and ballots of the type that are designed to be voted by being inserted in an electronic counting device are counted or recounted by hand. The State Board shall submit its recommendations on or before December 1, 2001.