By Steven F. Huefner
As of this posting, the race for US Senator from Virginia is very close, suggesting that the outcome may remain unsettled for some additional period, perhaps not only until a recount is completed, but beyond. Indeed, in this case the Senate itself may determine the ultimate outcome, sometime next year. Here�s why. In Virginia, the defeated candidate may obtain a recount if the margin of victory is equal to or less than 1% of the total votes cast for the apparent winner and the defeated candidate combined. V.C.A. 24.2-800. To request a recount, the defeated candidate must file a recount petition within ten days of the certification of the results. V.C.A. 24.2-801. A recount court then convenes and fixes the procedures used to recount the votes. V.C.A. 24.2-802. The recount �shall not take into account (i) any absentee ballots or provisional ballots sought to be cast but ruled invalid and not cast in the election�.� Id. Additionally, �the eligibility of any voter to have voted shall not be an issue in a recount.� Id. These provisions, especially when coupled with the automated tabulation systems in use in Virginia, seem to indicate that the recount process alone is not likely to produce dramatic changes in the vote totals, as Dan Tokaji suggested last night. Meanwhile, in a typical state election, challenges to the legitimacy of specific ballots instead could be raised in a contest proceeding. But Virginia�s contest provisions by their terms do not appear to apply to US Senate races. While V.C.A. 24.2-800, entitled �Recounts in all elections,� states that it applies to �all elections held in the Commonwealth,� Virginia�s election contest provisions do not similarly state that they apply to all elections. Rather, separate contest provisions govern General Assembly races (V.C.A. 24.2-803); races for Governor, Lieutenant Governor, and Attorney General (V.C.A. 24.2-804); races for electors for US President, electors for US Vice President, and primary races for US Senate or statewide office (V.C.A. 24.2-805); and races in �other primaries or elections,� including primaries for the US House (V.C.A. 24.2-806). Given the absence of any express statutory provision for a contest of a general election for US Senator, Virginia�s own precedents would appear to exclude such races from the jurisdiction of the state courts: �It is a firmly established general rule that the jurisdiction of courts exercising general equity powers does not include election contests, unless it is so provided expressly or impliedly by organic or statute laws. The reason for the exclusion is that the questions involved are political�.�� Cundiff v. Jeter, 2 S.E.2d 436, 439 (Va., 1939), citing 19 Am.Jur. 359; see also Sanders v. School Board of Prince William County, 163 S.E. 394 (Va., 1932). In the absence of any state contest procedure, the US Senate, which has constitutional authority to judge the elections of its members, may end up as the only body authorized to resolve the political question of the outcome of this election, especially if after a state recount the margin remains very close. It would be the incoming Senate next January that would first face the question of judging the elections of its members. Moreover, the Senate may take up the matter even in the face of a valid state recount declaring a winner. While Virginia is free to conduct such recounts, this does not constrain the ability of the Senate to make an independent judgment of the election outcome: �A recount does not prevent the Senate from independently evaluating the election any more than the initial count does. The Senate is free to accept or reject the apparent winner in either count, and, if it chooses, to conduct its own recount.” Roudebush v. Hartke, 405 U.S. 15, 25-26 (1972). Thus, the potential is real that a Senate divided 50 to 49 would be called upon to determine the rightful occupant of the 100th seat � an incredibly difficult task.