VIRGINIA - DEMS TRYING TO STEAL RECOUNT IN ATTORNEY GENERAL RACE 10/09/2013

Submitted by: Keith Appell

We are about a week away from the recount in the Virginia Attorney General’s race.  Just 165 votes separate Democrat Mark Herring from Republican Mark Obenshain.  That’s 300 percent closer even than the Florida race Barack Obama is still sore about… a 165-vote margin, or seven thousandths of one percent (.007), out of 2.2 million cast.   It’s the closest statewide race anywhere in America in this century … and the closest statewide race ever in Virginia history. Plus, all the recent history says the result has a good chance of changing in a recount:  In the last three statewide elections in the U.S. that were decided by as little as 300 votes, the recount in all three reversed the result and awarded the election to the person who was behind after the initial tally.  So it is really important to have an open, honest, fair and painstakingly thorough process—right?  To make sure “every vote counts”—right?   Because, after all, “people died for the right to vote … and we have to protect it”—right?  Below are important points to remember as we embark on this process.  Please take a moment and familiarize yourself as there is likely to be considerable coverage. 

 

·         Here’s what Mark Herring—the Democrat who says he should be the chief law enforcement officer of Virginia—has been asking that state’s courts to do.  It’s all about helping Mark Herring win whether he deserves it or not; it certainly has nothing to do with making sure every legitimate vote is counted.

 

o   First, Herring wants to deny the two candidates and their campaigns—and presumably everyone else in the free state of Virginia—the ability to examine the polling records that show who cast ballots in the election (not having voted, but who cast a ballot).

 

§  It’s the most important of all the election records except the ballots themselves, and until now, everyone assumed that access was required under state law. 

 

§  In fact, in Virginia’s two prior statewide recounts—one won by Democrat Doug Wilder in 1989 and the other won by Republican Bob McDonnell in 2005—the records were made available. 

 

§  But Herring wants to keep them locked up and safely out of view.  Why?  A possible answer is that Herring suspects some of the votes he got were illegal votes.  After all, it has now come to light that literally thousands of ineligible voters stayed on the voting rolls in some cities and counties despite state election board directives (see below). 

 

o   Second, Herring wants to impose a similarly unprecedented “gag rule” on the campaign representatives who are there as official observers during the recount.

 

§  We are not talking about making sure the observers behave themselves and don’t interfere with the counting.  State law already covers that.

 

§  Herring wants the court to go further and do something that has never been done in prior recounts:  to deny them the right to speak … to deny them the opportunity to even point out a problem spotted with a ballot and to suggest, ever so politely, that the ballot be sent to the three-judge recount court for examination.

 

·         You would think that making sure each questionable ballot is set aside and examined in a uniform way by the impartial state judges administering the recount—rather than by different people with different standards in different localities—would be a good and fair way to ensure an honest election in which every vote counts.  Apparently, all that matters to these Dems is winning.

 

§  But there’s more:  The gag rule proposed by Democrat Herring wouldn’t just keep the designated observers from pointing out errors and issue to the election officials; it would also keep them from immediately texting or emailing or phoning the candidate/campaign on-site to alert them to the problem.

 

·         These are official election observers whose job is to stay there and monitor the counting, and if something goes awry, to contact the candidate’s lawyers so the issue can be raised with the recount court.  That’s why state law provides for them to be there, helping to ensure a fair election!

 

·         But Herring wants to gag them on-site so that the only way they can contact the campaign’s lawyers is to stop doing what they are there to do—observing—and leave the premises to go somewhere else and make the call, text or email.

 

o   So forget all that high-sounding stuff we always hear from the Democrats about civil liberties and making every vote count.   Let one super-close election come along in which their lead is hanging by a thread—not even a chad, just a thread—and out goes all the stuff about free speech and fair elections and the public’s right to know.

 

§  Bottom line:  Herring doesn’t want a full and fair recount of every legitimate vote, and he doesn’t want to make sure this election is open to public scrutiny.  He just wants to win at all cost, even if it means running roughshod over the First Amendment rights of citizens and candidates.   It is one of the most brazen attempts to block a transparent and thorough vote count by anyone anywhere—and this from someone who wants to be Virginia’s chief law enforcement officer.  

 

§  Well, at least Barack Obama and Terry McAuliffe aren’t standing for this—right?  They’re outraged—right?   Demanding complete transparency so that “every vote counts”—right?  We’re waiting …

 

·         All this begs the question:  what is Mark Herring so afraid of?  Is there really a reason to be concerned about the legitimacy, accuracy, or fairness of the election?  The answer is, there’s plenty to make you want some sunshine and scrutiny—the kind of sunshine and scrutiny Mark Herring seems desperate to avoid.

 

o   First, there is the obvious unfairness in the way provisional votes were handled.  In essence, the “polls stayed open” in Democratic-leaning Fairfax for several days longer than in the rest of the state.

 

·         Provisional votes are the ones cast by folks who for some reason could not on election day, based on their own paperwork and the election records, establish that they were eligible to vote.  Each such person was allowed to cast a ballot, which was put in a sealed envelope and set aside, and in order for it to count they had to come back in after the election (through Friday) and prove their eligibility. 

 

·         The only problem is that in one county—which happened to be a massive one, Fairfax, where Herring won by roughly a 60,000-vote majority—the provisional ballot polls stayed opened for provisional voters for a full week (until the following Tuesday), while in the entire rest of the state—an area that, collectively, went for Obenshain by roughly 60,000 votes—the polls were closed on the preceding Friday.

 

·         There were thousands of these provisional votes, and the race was decided, according to the current count, by 165 votes.   How can anyone argue that it was fair to close the polls on Friday (as directed by the state election board) in the parts of the state that went for Obenshain by 60,000-plus votes, but keep them open through the weekend and for two more business days in the part of the state that went for Herring by a like margin.

 

o   Second, Fairfax County even failed to use proper security measures to protect the integrity of the ballots.  Virginia law requires counted and unused ballots be transported to the Clerk not later than the day after the election.  Reviewing the certification filed by the Fairfax Clerk, it shows that election materials, including counted and unused ballots, remained unprotected by the mandated security measures for nearly a MONTH after the election.  Ballots were transported on multiple dates, including on November 13^th,  November 20^th, November 26^th and even December 5^th.  We should get a full accounting from Fairfax County with respect to the custody and security of these ballots.  Voters deserve confidence in the integrity of the process. 

 

o   Third, it’s now clear that literally thousands of names were allowed to stay on the voting rolls even after the state election board circulated a list of likely ineligible voters and told local registrars to validate or remove them. 

 

§  This is standard practice in Virginia and probably everywhere else:  the state election board compiles from various sources a list of people who likely are no longer eligible—dead people, people who moved, felons, etc.—and they provide that to the local election officials, who are supposed to remove them from the list unless they determine them to still be valid voters.

 

§  But this year, the Virginia Democratic Party went into federal court trying to halt this process.  U.S. District Judge Claude Hilton totally rejected their claim, saying this process was the state’s appropriate way of protecting the integrity of the election.   Virginia, he ruled, “has a compelling interest in preventing voter fraud and maintaining accurate voter registration rolls.”

 

§  Most local election officials complied; in all but 19 of Virginia’s 133 localities more than 70% of the suspect names on the list were removed.  In most of those localities around 90% of the suspect names were shown to be invalid and removed from the rolls.  But in some places, like the heavily Democratic cities of Hampton and Charlottesville, well over 90% of the suspect names were allowed to stay on the rolls.   In effect, no serious effort was made to comply with state law and policy.  And in those two cities alone, more than 1,800 voters—more than 10 times the current margin separating Herring and Obenshain—were allowed to stay on the rolls despite being flagged as probably ineligible by the state election board.

 

·         Of course, it really doesn’t matter whether the failure to eliminate ineligible voters occurred in a Republican-leaning or Democratic-leaning locality—and there were some of both.   There are Republican and Democratic voters, Obenshain and Herring voters, in every locality—and the issue is whether ineligible persons were allowed to vote in violation of state law and the state election board’s policy. 

 

·         Statewide, more than 18,000 of the suspect names were left on the election rolls.

 

§  Here’s the clincher.  There is only one way to know whether these potentially ineligible voters cast illegal ballots (or someone fraudulently claiming to be them cast illegal ballots), and that is to compare the state election board’s list of suspect names with the poll books showing who voted in the election.  But those poll books are the very same records that Herring has tried to get the recount court to keep under-wraps and out of view.   It is fair to assume he doesn’t want to know the truth—at least, not in time to impact his election.

 

§  Access to the poll books would show which of those potentially ineligible voters—including, for example, dead people—cast votes.  

 

o   Fourth, everyone should be concerned that Virginia, despite working to phase them out in recent years, still has more than 2,600 precincts using voting machines that leave no paper trail—no paper ballots that can be recounted. 

 

§  As a result, in the closest statewide race in Virginia history and one of the closest in U.S. history, thousands of votes can never be recounted because the wrong kind of machines were used.

 

§  In those 2,600 or so precincts, voters effectively are being denied the protections put in place via Virginia’s new recount statute to ensure that “every vote counts.”