April 14, 2024

What happens when there's no recount possible?


This is my first posting on Freedom To Tinker, so a brief introduction first. I’ve been involved in electronic voting technology issues for about five years, as founder of Virginia Verified Voting where I wrote the law that prohibited purchase of more DREs (i.e., paperless voting machines), as a researcher on the EAC Voting System Risk Assessment, a consultant to the Kentucky Attorney General, an advisor to the DC City Council, and (since I joined SRI International almost two years ago) as one of the investigators on the NSF ACCURATE program. It’s an honor to join this blog.

On to the real topic of this post.

I live in Fairfax County, Virginia. Virginia uses mostly paperless DREs (no VVPAT paper trail). Thanks to the law I helped write (see above), Fairfax County now has both DREs and optical scanners in polling places, and gives voters the choice which they want to use. As a pollworker on election day, my experience was that 80% pick DREs – the reason is subject for a future blog posting.

One of the closest races in the country in last week’s election was for House of Representatives in the Virginia 11th District where I live – Gerry Connolly (D) is the one-term incumbent, and Keith Fimian (R) is the primary challenger, along with five minor-party candidates. Connolly beat Fimian by 12 points in 2008, but everyone knew this race would be closer.

In fact, the unofficial totals as of this writing show Connolly ahead by about 900 votes out of 225,000, or about 0.40%. Close, but certainly not the closest I’ve seen. (The 2005 Attorney General’s race was decided by about 0.015% – yes, just over one one-hundred of a percent.) Virginia law allows for a recount when the margin is under one percent, so a recount would seem obvious.

However, The Washington Post reports that Fimian has decided not to seek a recount. Why? Well, there’s the official reason, but the real reason is two-fold.

First, a large majority of the votes in the 11th district race were cast on paperless DREs, spanning Fairfax County, Prince William County, and Fairfax City (a separate jurisdiction from Fairfax County). I don’t have the numbers yet, but my estimate is that 90% were on paperless DREs. So there’s nothing really to recount.

Second, Virginia law is very restrictive on recounts. For DREs, all you can do is look at the total tapes from election night, and add up the totals again. If the total tape is unreadable, you can print it again. But that’s it, without a judge’s order. For optical scans, you reprogram the optical scanner to count just the race in question, retest it, rerun the ballots, and use the total tape to add to the DRE total tape. If the scanner rejects any ballots (e.g., for write-ins), you can examine those by hand – but you can’t examine any that the scanner accepts, again without a judge’s order. And since the law gives the judge no guidance on why they should allow looking at anything other than the total tapes, it’s unlikely that a judge would make up his/her own rules.

So the result is that a recount is fairly meaningless – it’s really a retally of the totals, not an examination of the ballots, as a recount is meant to be.

Time for Virginia to both replace its DREs with optical scanners AND update its antiquated recount laws, as the Washington Examiner noted in their editorial yesterday.


  1. Luigi Montanez says

    I’m a voter in Fairfax.

    At the polling location, I was asked “Paper ballot or touch screen?” by the poll worker. It didn’t register with me at all that “paper ballot” meant optical scanner. It would have if I thought about it more, but at the moment it’s a split second decision for the voter, and touch screen just sounds more convenient.

    You should lobby the board of elections to instruct their poll workers to use more descriptive language when explaining to voters what options they have.

  2. I’d say it’s a matter of proper training, and shift not relative to age. However you will find few persons who will take their personal time from work to become involved.

    • anthrosciguy says

      Like the guy above said, pay them. Do we really value democracy so little we won’t pay workers, and pay them a decent wage? Is a proper vote count so unimportant?

      • jeremy.epstein says

        You’re absolutely right, but employers won’t give paid time unless they’re forced to. And if we want to pay them out of taxpayer funds, that means either raising taxes or cutting something else. In Virginia, it would not require a legal change to pay more – the only limit is a minimum pay of $75/day, which hasn’t changed since 1993. (See http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-116 for the current law.)

        In theory, everyone says we want to protect democracy. In reality, it all comes down to taxes – no politician wants to increase taxes. And paying poll workers more isn’t sexy enough to overcome that problem.

        Maybe I’m too much of a pessimist. But that’s because I see the pain the localities go through in trying to hire and retain qualified pollworkers everywhere in the country.

  3. I have complained for years about the non-transparent voting in Virginia. I am always treated as a crank. Now I can vote “on paper”, but the counting of those votes is electronic.

    I am for voting on paper, with information entered by hand, with the votes counted publicly right away. Most precincts are small enough so as not to require any “electronic” anything with a quick result. The results would be proclaimed PUBLICLY by precinct, and dispatched to the central voting authority, publicly.

    Voting on non-transparent, unaccountable machines is undemocratic.

    • jeremy.epstein says

      I disagree with hand-counted paper as the answer. Although Virginia has simpler ballots than many states (rarely more than 10 items on the ballot), it’s not a good idea to ask a group of very tired pollworkers who have already worked a 16 hour when the polls close to then sit down and hand-count every ballot. I know – I’m one of those pollworkers, and after working from 5am – 10pm, the thought of adjudicating voter marks on paper ballots is unappealing. And most of the pollworkers are 70+ years old, so they’re going to make more errors, if they don’t quit altogether. My precinct had about 750 voters, and even with just six items on the ballot it would have taken an extra hour or so to hand count them. Finally, not all handmarked ballots are perfectly clear, as the experiences in Minnesota made clear two years ago. Do you really want 70 year old relatively untrained pollworkers deciding whether your ballot counts?

      So my strong preference is to vote on paper, count electronically, and then after Election Day use risk limiting audits to hand-count a statistically random sample before finalizing election results.

      Incidentally, the end-of-day process is open to party observers (and it’s not hard to get appointed one) – in my precinct we had someone from each party watching us. And the results are, by law, posted on the front door of the polling place. I know, I personally did that for my precinct. So much of what you want is already there. Come watch us next time!

      • Why do we have 70-year-old relatively untrained pollworkers working for 16 hours, instead of better-trained younger pollworkers working shorter shifts?

        Is proper counting of votes in a democracy not worth spending just a few extra tax dollars on every few years?

  4. cryptozoologist says

    even if ‘only’ 10% of the ballots are auditable paper ballots, that should be plenty to see if the totals are reasonable. getting the law to consider this is another problem.