Virginia’s Odd Law
March 24, 2015
By Ashley Eick:
Virginia is certainly no stranger to statewide recounts. It’s had two in the last ten years and the nail-biter senatorial race on November 4th almost increased that number to three. For a key swing state with a trend toward close elections, Virginia’s recount laws could become a deciding factor in national politics.
The birth of Virginia’s current recount laws come from the 1978 senatorial race between former Virginia Attorney General Andrew P. Miller and former Virginia Senator John Warner. Senator John Warner won the seat by 0.39% of the total vote. Andrew Miller immediately filed a recount petition, but the law on the books required the losing candidate to fund the entire recount. Miller was forced to concede after failing to raise the $80,000 necessary to go forward. If a former state attorney general was unable to raise the money, it was implausible to assume that anyone else could, so the Virginia legislature enacted the current law that requires localities to bear the costs if the margin of loss is less than 0.5%.
The big difference between Virginia and other states, however, is that Virginia allows a candidate to petition for a recount if the difference between winning and losing is within 1%. With a margin of loss of 0.75%, Ed Gillespie had 10 days to decide if he wanted to contest the 2014 election results. Although Gillespie decided to concede within a few days of the election, he could have theoretically dragged the election out for several more weeks if he had so chosen. Virginia is one of the few states to have such a low threshold to initiate a statewide recount. Other swing states such as Ohio, Florida, and Pennsylvania all require a margin of loss of at least 0.5% or lower for a recount.
If Gillespie had decided to initiate a recount, he would have only had to pay $10 per precinct. With 2,557 precincts in the Commonwealth, his up-front recount cost would have been about $25,000. Although this might seem like a high cost, it is a miniscule amount considering that over $2.5 million was spent in the 2014 Virginia Senate race, one of the least expensive campaigns of the election. With the amount of money in current elections, it seems almost comical that the state legislature originally overhauled the recount laws to take financial pressure off the candidate. In the post-McCutcheon world, it is not difficult to imagine a day that a candidate will pay the relatively small amount to initiate a recount for pure political leverage.
From 2000 to 2009, there were only 18 recounts in the more than 2,884 statewide general elections in the United States. Of those 18, 11 of them had a margin of loss of 0.15% or less. As Marc Elias, chair of the Perkins Coie political law practice group, explained, “(recounts) really only happen where you are talking about dozens or a few hundred votes separating the candidates.” Furthermore, history proves that recounts rarely overturn an Election Day lead. Although it does occur, typically whoever was in the lead on election night continues to gain votes as the recount progresses. Just last year in the Virginia Attorney General recount, Mark Herring started with a 165 vote lead but by the end of the recount the gap had increased to 810 votes.
Given these statistics, Virginia’s 1% threshold is not only completely off-base with the historical trends but it also provides an incentive for political manipulation. Now that money is no longer an issue in highly contested campaigns, Virginia should significantly increase the threshold needed to initiate a recount. It is only a matter of time before candidates contest elections solely for political sparring at the cost of election integrity.