VIRGINIA:

IN THE CIRCUIT COURT FOR THE CITY OF NEWPORT NEWS

SHELLY A. SIMONDS, )
)
Petitioner, )
)
v. ) Civil Action No. CL 1704240B-04
)
DAVID E. YANCEY )
)
Respondent. )

MEMORANDUM IN SUPPORT OF PETITIONER’S MOTION TO SUSPEND THE

COURT’S ORDER CERTIFYING THE VOTE AND FOR RECONSIDERATION ON AN
EXPEDITED BASIS
 I. INTRODUCTION

Petitioner Shelly A. Simonds respectfully requests that this Court reconsider three

erroneous and outcome-determinative decisions it made during the final recount hearing in the

recount of the November 7, 2017 election in Virginia House of Delegates District 94: first, the

Court allowed one of Respondent’s appointed recount officials to challenge a ballot by

submitting a letter to the court the morning after the recount had already concluded; second, the

Court evaluated the apparent ballot that was the subject of the recount official’s letter and re-

determined the vote in the Warwick precinct for a second time after the recount; and third,

despite the strong presumption in state law and State Board of Elections (“State Board”)

regulations that a ballot marked for two candidates is an overvote and the lack of any guidance

suggesting that the slash mark in question is indicia of opposition to a candidate, the Court ruled

that the ballot was a vote for Mr. Yancey.

Petitioner respectfully submits that the Court’s decisions constitute clear legal error

because they ran contrary to Virginia law; the Preliminary Recount Consent Order (“Recount

Procedural Order”) agreed to by both parties and entered by the Court in this case; and State

Board guidance on recounts. As explained in more detail below, these decisions were manifestly

unjust and if followed by other recount courts, will create both unfair and inaccurate processes

for future recounts. Moreover, even if a valid challenge to the ballot were lodged, the Court

should have consulted the State Board to provide sufficient guidance for the Court to render a

reasoned decision. Given that the State Board has indicated that the apparent tie vote in House

District 94 will be resolved on December 27, 2017, Petitioner requests that the Court suspend its

order certifying the vote and rule on this Motion on an expedited basis.

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 II. FACTUAL AND PROCEDURAL BACKGROUND

The State Board certified the results of the November 7, 2017 general election for House

District 94 on November 20, 2017. The Board’s certification reported a difference of ten (10)

votes between the votes cast for Ms. Simonds (11,591) and the votes cast for Mr. Yancey

(11,601). Given the extreme closeness of the vote totals, Petitioner filed a Petition for Recount in

this Court on November 29, 2017. After the Petition for Recount was filed, counsel for Petitioner

and Respondent negotiated the terms of a consent order that would govern the procedures for the

recount. On December 6, 2017, Chief Judge Sugg held a preliminary hearing pursuant to Va.

Code Ann. § 24.2-802(B) to determine the content of that order and the specific details about

how the recount would be performed. The next day, the parties submitted a draft order that was

entirely agreed to by both parties; three days after that submission, on December 10, 2017, Judge

Sugg entered the Recount Procedural Order submitted to the Court by the Parties. See Exhibit A

(“Recount Procedural Order”).

On December 13, 2017, the three-judge panel appointed by the Chief Justice of the

Supreme Court of Virginia held a telephonic hearing to set the final procedural rules for the

recount pursuant to Va. Code Ann. § 24.2-802(B). After the final hearing, the Parties submitted a

final procedural order to the Court. The final procedural order confirmed that the Recount

Procedural Order entered by Judge Sugg on December 10, 2017 would govern the rules of

procedure for the Recount.

The Recount Procedural Order provides, in relevant part, that “to the extent not

inconsistent with the provisions of this Recount Order, the recount shall be conducted in

accordance with the most recent State Board of Elections’ Virginia Election Recounts, Step-by-

Step Instructions and its Ballot Examples for Handcounting Paper or Paper-based Ballots for

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Virginia Elections or Recounts.” The Order also states that if both election officials “cannot

agree how or whether to count a ballot, then the ‘Undetermined Ballot(s)’ shall be set aside. The

Undetermined Ballot(s) shall then be examined by the Special Three-Judge Recount Court.”

Exhibit A at 12-13. The Recount Procedural Order provides that at the hearing following the

recount, “[t]he Special Three-Judge Recount Court shall allow the Parties to inspect the

Undetermined Ballots” and “hear any arguments and rule on any Undetermined Ballots.” Id. at

13. Finally, the Recount Procedural Order repeats key language from Va. Code. Ann. § 24.2-

802(D)(3): “There shall be only one redetermination of the vote in each precinct.” Id.

The recount in House District 94 was held on December 19, 2017. Per the Recount

Procedural Order, both parties submitted lists of their preferred recount officials and a list of

alternate recount officials. Kenneth Mallory was among preferred recount officials chosen by the

Respondent; he was not an alternate recount official, but Mr. Yancey’s first choice to serve in his

appointed role. Both parties also provided observers for each set of recount officials; an observer

appointed by Respondent was present at Mr. Mallory’s table for the entire recount in House

District 94. Per the Recount Procedural Order, Mr. Yancey’s observer was explicitly permitted to

communicate with Mr. Mallory, and thus to advise him on whether to consider a ballot

“Undetermined.” Id. at 6. Thus, Respondent had two chosen representatives viewing each ballot

that was to be counted by hand, as did Petitioner.

As required by Virginia law and State Board guidance, the election officials recounted the

ballots on a precinct-by-precinct basis. After tabulating the votes in each precinct, the election

officials completed and signed a Statement of Results form that set forth the recounted vote totals

in each precinct. The election officials did not challenge a single ballot during the recount for any

precinct, including in the Warwick precinct. Instead, they were able to tabulate a final vote for

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each precinct, the Statement of Results form for each precinct was fully complete, and the

election officials each properly signed a Statement of Results agreeing to the vote totals for each

precinct in House District 94.

In the Warwick precinct, Mr. Mallory signed the Statement of Results attesting to its

accuracy. That Statement of Results included the disposition of three ballots that were neither

counted for Mr. Yancey nor Ms. Simonds by the scanner. Those ballots were reviewed by hand

by six participants: Mr. Mallory; a Democratic recount official; an observer appointed by Mr.

Yancey; an observer appointed by Ms. Simonds; and the two Recount Coordinators. At the

conclusion of that process, all three ballots were determined to be either overvotes or undervotes

and not counted for either Mr. Yancey or Ms. Simonds. In other words, all three hand-counted

ballots, and all other ballots in the Warwick precinct, were definitively determined to be either a

vote for Ms. Simonds; a vote for Mr. Yancey; an overvote; an undervote; or a write-in vote. No

ballots in the Warwick precinct, or in any precinct in House District 94, were left undetermined

at the conclusion of the recount on December 19.

Accordingly, at the conclusion of the recount, there was no uncertainty as to how many

votes each candidate received. The Newport News Registrar announced the final tally of the vote

count: Ms. Simonds received 11,608 votes and Mr. Yancey received 11,607 votes. See Exhibit B

(“Recount Certification”). Media outlets reported that Ms. Simonds had won the election.

The final court hearing following the recount was held on December 20 at 9:00 am. In the

minutes prior to the hearing, counsel for Mr. Yancey presented counsel for Ms. Simonds with a

letter that had apparently been written by Mr. Mallory. During the final hearing, counsel for Mr.

Yancey contended that the letter was Mr. Mallory’s (late) challenge to a ballot cast by a voter in

the Warwick precinct that election officials determined was an overvote during the recount. In

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his letter, Mr. Mallory readily admits that he, along with the recount official appointed by Ms.

Simonds, tabulated the vote for each candidate in the Warwick precinct including the ballot in

question; that he agreed with the Democratic recount official that the ballot was an overvote; and

that at the end of determining the vote in the precinct, he signed the Statement of Results setting

forth the vote totals. It is undisputed that Mr. Mallory did not challenge the ballot (or any other

ballot) during the recount. Because the ballot at issue was never challenged, it was neither set

aside nor delivered to the Court for review as required by the Recount Procedural Order and

State Board guidance. Instead, the ballot was included in the Statement of Results for the

Warwick precinct, as signed by Mr. Mallory, as an overvote that should not be counted for either

candidate.

Despite Petitioner’s objections that consideration of Mr. Mallory’s apparent late

challenge to the ballot would violate both Virginia law and the terms of the Recount Procedural

Order, and ran contrary to State Board guidance, this Court permitted Mr. Mallory’s challenge

and reviewed the apparent ballot at issue. The ballot included identical marks (filled-in ovals) in

the target areas for Mr. Yancey and Ms. Simonds, and an additional mark (a slash through the

oval) in the target area for Ms. Simonds. See Exhibit C. This Court ultimately determined that the

ballot should be counted as a vote for Mr. Yancey.

The Court then ruled that it would not afford counsel for Ms. Simonds an opportunity to

gather and submit similar written statements from recount officials noting other ballots deserving

of a second look. As a result, the election was ruled a tie and the Court signed the Certification of

Recount form. The State Board of Elections has announced that the tie will be broken on

December 27, 2017 by choosing names at random. Because the Court’s decision to treat Mr.

Mallory’s letter as a valid ballot challenge runs contrary to controlling law, the Recount

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Procedural Order entered by the Court, and State Board guidance, Ms. Simonds files this Motion

to seek reconsideration of the Court’s decision. Given the urgency, Petitioner requests that the

Court suspend its earlier order and consider and rule on this Motion on an expedited basis.

III. ARGUMENT

A court may grant a motion for reconsideration in circumstances where (1) new evidence

has been presented, (2) manifest injustice would result from the court’s prior decision, and (3)

the court’s prior decision should be reversed to avoid clear error. See Com. ex rel. FX Analytics

v. Bank of New York Mellon, No. CL–2009–15377, 2012 WL 7874398, at *7 (Va. Cir. May 1,

2012) (granting motion for reconsideration “in order to avoid if not clear error, error

nonetheless”). As explained below, Petitioner’s Motion for Reconsideration should be granted to

avoid clear error and manifest injustice.

A. The Court’s decision to consider a challenge to a ballot made after the

recount and to re-determine the vote at the final hearing constitutes clear
legal error and was manifestly unjust.

Contrary to the clear commands of Virginia law, the Recount Procedural Order, and State

Board guidance, at the final hearing of the recount of the November 7, 2017 election in House

District 94, this Court erroneously reviewed a ballot that had not been challenged by recount

officials during the recount and re-determined the vote in the Warwick precinct for a second

time. For the reasons set forth below, the Court’s decision to undertake these actions constitutes

clear legal error and was manifestly unjust.

1. Virginia law and the Recount Procedural Order mandate that there can be
only one redetermination of the vote in each precinct.

Virginia law governing the procedure for recounts clearly provides that “[t]here shall be

only one redetermination of the vote in each precinct.” Va. Code Ann. § 24.2-802(D)(3). This

principle is so vital that counsel for Mr. Yancey insisted that it be included in the Recount

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Procedural Order, adding language that similarly states that “[t]here shall be only one

redetermination of the vote in each precinct . . . .” Exhibit A at ¶ 26. This principle is important

for recounts in Virginia for two reasons. First, without it a recount would be a never-ending

process, with counsel for both parties noting potential errors and inaccuracies that should be

continuously revisited. Second, repeated re-tabulations on a case-by-case basis violate the

principle in Virginia law that recount procedures “should be as uniform as practicable.” Va.

Code. Ann. § 24.2-802(A). Repeated redeterminations in one precinct without conducting similar

redeterminations elsewhere builds inaccuracy and unfairness into the recount process.

As of the end of the recount on December 19, 2017, there had already been a re-

tabulation of the Warwick precinct. Indeed, that re-determination had been certified by Mr.

Mallory and the Democratic recount official who re-tabulated the Warwick precinct. Most

importantly, that redetermination included a redetermination of the ballot in question, which had

been ruled by Mr. Mallory and his Democratic counterpart to be an overvote. It was included on

line C7 of the Statement of Results under the category of “Overvoted Ballots.” See Virginia

Election Recounts, Step-by-Step Instructions at 17. This was the second time this ballot had been

counted and its disposition determined; the first time was on November 7, 2017, when it was

read by the scanner and likely counted as an overvote.

If either recount official had challenged a ballot in the Warwick precinct or any other

precinct during the recount, there would be no final redetermination of the vote in that precinct

until after the final court hearing when the Court “rule[d] on the validity of all questioned ballots

and votes.” Va. Code Ann. § 24.2-802(D)(3). There would not have been a redetermination

because the function of a “challenge” by a recount official is to withhold final judgment on the

disposition of a particular ballot pending review by the Court. However, both recount officials

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declined to challenge any ballot in the Warwick precinct; instead, they made a redetermination of

every ballot in that precinct, including the ballot in question, which they jointly determined was

an overvote. They then signed the Statement of Results noting the redetermination of that

precinct. At that point, the “one redetermination of the vote in each precinct” permitted by

Virginia law and this Court’s Recount Procedural Order had been completed.

Adherence to the “one redetermination” principle is not merely applicable in the late-filed

challenge context. Were it not strictly applied, this Court – and any future recount courts – will

be forced to reckon with all manner of requests for a third counting of ballots occasioned by

pressure brought to bear on recount officials from any manner of sources. Virginia law is quite

clear that these requests are not to be considered; and the parties agreed that this principle should

also be enshrined in the Recount Procedural Order itself. When the Court reviewed a ballot in the

Warwick precinct on December 20, 2017, it was the third time that ballot had been reviewed and

counted, and the third time the Warwick precinct’s final numbers had been calculated. This was

not only contrary to the plain language of Virginia law, but was also contrary to the language that

counsel for Mr. Yancey insisted be included in the Recount Consent Order.

2. Challenges to ballots must be made at the conclusion of the recount

for each precinct, and challenged ballots are required to be set aside.

Virginia law makes clear that recount officials are required to challenge votes or ballots

“[a]t the conclusion of the recount of each precinct.” See Va. Code Ann. § 24.2-802(D)(3).

Virginia law sets forth at Va. Code Ann. 24.2-802 the procedures that must be followed during a

recount. Section D of the statute describes how the redetermination of the vote in a recount shall

be conducted for paper ballots, direct recording electronic machines, and ballot scanner

machines. It also separately describes certain procedures that must be followed at two different,

distinct points in the recount process: first, at the conclusion of the recount in each precinct, and

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second, at the conclusion of the recount of all precincts. At the first point in time – the

conclusion of the recount of each precinct – “the recount officials shall write down the number of

ballots cast” as “obtained from the ballots cast in the precinct,” and “[t]hey shall submit the

ballots or the statement of results used, as to the validity of which questions exist, to the court.”

Id. Additionally, at this time, “[t]he written statement of any one recount official challenging a

ballot shall be sufficient to require its submission to the court.” Challenges to ballots not made at

this first point in time – at the conclusion of the recount of each precinct – are waived. At the

second point in time – at the conclusion of the recount for all precincts – “the court shall rule on

the validity of all questioned ballots and votes” that were submitted to the court after allowing

“the parties to inspect the questioned ballots” and “after hearing arguments.” Id. After the final

hearing the court shall certify the winner to the State Board of Elections and the relevant

electoral board(s). Id.

During the recount in House District 94, there were no challenged ballots at the first point

in time – the conclusion of the recount in each precinct – which is the only time that challenges

to ballots can be made. At the conclusion of the recount of each precinct, each pair of recount

officials signed a Statement of Results for every precinct certifying that there were no disputed

ballots. This means that during the recount, Democratic and Republican Recount Officials jointly

decided to either count or not count each ballot by mutual agreement, and by signing the

Statement of Results, the officials indicated that they agreed on whatever decision they made.

The Recount Certification form circulated by the Newport News registrar the morning of the

final hearing also indicated that there were no challenged ballots in the recount, and that the re-

tabulation of the vote in all precincts was complete. See Exhibit B.

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 This timing restriction is not an arbitrary one; it is included in Virginia law for at least

three reasons. First, a timely challenge to a ballot ensures that it will be properly segregated, and

that it will not be improperly double-counted. A ballot that is not challenged is merely placed in

the sealed box with all other counted ballots and is not required to be segregated or separately

marked. Thus, even if it were possible to determine with certainty which ballot in a precinct is

subject to a late-filed challenge, there is no record of how a particular ballot was counted during

the recount. A late-filed challenge – especially one that could, as in this instance, have plausibly

been considered a vote for either candidate or an overvote – is thus in danger of being counted

twice, as there is no way to know from which column in the Statement of Results to subtract.

Second, it will often be difficult to determine which ballot is being described in a late-

filed challenge if it is not properly segregated from other ballots in a precinct on the day of the

recount. Most voters use a similar set of markings on ballots: ovals, check marks, slashes,

crosses, and so on. A single ballot may look unique until is it placed alongside all other ballots in

a precinct. For this reason, both the Recount Procedural Order and State Board guidance require

recount officials to “set aside” challenged ballots. See Exhibit A at ¶ 25 (if both recount officials

“cannot agree, or they cannot determine how or whether to count a ballot, then the

‘Undetermined Ballot(s)’ shall be aside. The Undetermined Ballot(s) shall then be examined by

the Special Three-Judge Recount Court.”). Similarly, State Board guidance in the Virginia

Election Recounts, Step-by-Step Instructions, which is incorporated by reference in the Recount

Procedural Order, see id., provides that during the recount, if there is a challenged ballot, the

election officials must “[p]lace the signed, challenged ballot statements and attached paper

ballots in the Challenged Ballots envelope for the precinct;” they must “seal the Challenged

Ballots envelope;” and “[s]et the envelope containing Challenged Ballots aside.” Virginia

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Election Recounts, Step-by-Step Instructions at 19. Moreover, the Virginia Election Recounts,

Step-by-Step Instructions – again, as incorporated by the Recount Procedural Order – prescribes

the form that must be used to lodge a written challenge: Form 802-SB. Mr. Mallory’s late

challenge should not have been considered because it did not conform to any of these

requirements.

Finally, a challenge that is not made until after a precinct is finalized bypasses a bedrock

principle of Virginia recount law: that agreement between officials should be sought if at all

possible. The Step-by-Step Instructions promulgated by the Virginia Department of Elections,

and incorporated into the Recount Procedural Order, requires that officials place challenged

ballots (those for which the recount officials cannot agree) in a separate stack. At the conclusion

of the hand tally, the recount officials are instructed to review the stack of challenged ballots

again, together, alongside the Ballot Examples. Only when the recount officials cannot agree

during that second review is the ballot considered challenged (and only then upon completion of

the proper paperwork, as noted below). By permitting challenges only during this process or not

at all, a recount official is bound by the decision to challenge or not to challenge a ballot,

allowing other recount officials to rely on those decisions, encouraging principles for

determining votes to be applied consistently and in good faith, and with mutual agreement when

possible.

Accordingly, the ballot challenge made by Mr. Mallory during the final court hearing in

the recount was untimely, improper, and should not have been considered by the Court. By

bypassing the statutory and administratively described process for challenging a ballot, Mr.

Mallory avoided his duty to discuss his decision to challenge the ballot with his Democratic

counterpart; he failed to set aside the ballot to be considered; and he in fact made a determination

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as to how this particular ballot should be counted, a determination that was only recorded in the

aggregate and that this Court was required to use oral testimony to attempt to ascertain.

Once the conclusion of the recount in the Warwick precinct had passed, so too had the

time to challenge a ballot. As counsel for Mr. Yancey admitted during the final hearing in the

recount, there is no Virginia authority to support the argument that a challenge to a ballot can be

made after the recount for the relevant precinct has already concluded. Tr. at 9:14-19. To the

contrary, the statute clearly indicates the opposite. The election officials’ unanimous decision as

to this ballot that was made during the recount should not have been disturbed by the Court.

4. The Court’s decision was manifestly unjust.

The Court’s decision to allow Respondent to challenge a ballot after the recount of all

precincts had already concluded allowed Respondent to make an opportunistic end run around

the statutorily prescribed procedures for recounts and was manifestly unjust. As described above,

challenges to ballots must be made during the recount as prescribed by Virginia law. This

procedure is enshrined in the statute governing this recount, and moreover the specific

procedures governing challenges were incorporated the Recount Procedural Order which was

agreed to by all parties.

Had both parties known in advance that written challenges and other requests for a

second redetermination of ballots would be accepted by this Court, then immediately after the

recount, counsel for Ms. Simonds would have discussed with the Democratic Recount Observers

whether any ballots that had not been challenged should be reviewed by this Court. But due to

the lack of legal precedent for considering challenges to ballots made after the close of a precinct,

Ms. Simonds and her counsel rightly considered the results final. And because this Court did not

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afford counsel for Ms. Simonds to submit late challenges during the December 20 hearing, only

one of the parties was able to take advantage of this new process.

Allowing a party to a recount to wait until after the recount has concluded to challenge a

ballot, as the Court has done in the instant case, is inequitable and not in line with applicable

policy. Not only did allowing a late ballot challenge undermine the statutory recount procedures

and the Recount Procedural Order, it raised questions about the accuracy of the recount. Further,

it sets the precedent that any party to a recount who is not satisfied with the results can wait until

after the recount is complete to embark on a fishing expedition to seek out election officials who

can be persuaded to challenge a sufficient number of ballots to change the result. Permitting such

late challenges encourages meritless ballot challenges conjured up by recount lawyers and

candidates instead of challenges that are properly made by election officials who disagree about

or cannot decide how to treat a ballot during the recount.

In this case, the recount in House District 94 concluded on December 19, 2017 and Shelly

Simonds was announced the winner, with no outstanding issues at that time for this Court to

consider. According to Mr. Mallory, after the recount concluded, counsel for Mr. Yancey

contacted him. Subsequently, Mr. Mallory apparently wrote a letter to the court in an attempt to

challenge a ballot that he had not challenged during the recount and had in fact agreed should not

be counted because it was an “overvote.” This sequence of events – counsel for the losing

candidate reaching out to an election official after the recount has concluded – is an example of

the type of conduct that should not be, and indeed is not permitted under the recount procedures

set forth in Virginia law. In fact, the Recount Procedural Order – again, on the request of counsel

for Mr. Yancey – contained specific language barring written contact between counsel to either

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party and the recount officials. 1 Allowing lawyers and persons other than election officials,

recount coordinators, and recount observers to influence the recount procedure in this way would

have the effect of making recount officials more susceptible to influence by outsiders, it would

inject confusion and chaos into a recount process that can already be confusing, and it would

allow the parties to raise legitimate questions about the accuracy of the recount. This Court’s

decision to consider Mr. Mallory’s letter after the recount had concluded was manifestly unjust

and should be reconsidered.

B. The Court’s decision to count the late challenged ballot as a vote for Mr.
Yancey was clearly erroneous.

This Court should also reconsider its determination that the ballot in question was a vote

for Mr. Yancey. The ballot in question included marks (filled-in ovals) in the target area for both

Mr. Yancey and Ms. Simonds and an additional mark (a slash mark) in the target area for Ms.

Simonds. The ballot was likely treated as an overvote on Election Day, and the recount officials

agreed during the recount that it was an overvote.

These initial decisions are consistent with the State Board’s Ballot Examples for

Handcounting Paper or Paper-Based Ballots for Virginia Elections or Recounts (“Ballot

Examples”), see Exhibit D, which instruct that “[a]ny ballot which is marked for more than one

candidate for the office shall be deemed an overvote and no vote shall be counted,” unless

otherwise specified. Id. at 5. This Court’s decision to count the ballot for Mr. Yancey is not

consistent with State Board guidance and should be reconsidered.

1
Mr. Mallory’s letter does not specify what mode of communication counsel for Mr. Yancey
used to contact him. If counsel for Mr. Yancey had written communications with Mr. Mallory –
including electronic mail or text messages – they would have violated the clear terms of the
Recount Procedural Order. See Exhibit A at ¶ 12.
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 1. The legal standard for determining a vote is defined by the State
Board.

The State Board, not the recount court, is authorized to determine the legal standard for

when a ballot should be counted as a vote. See Va. Code Ann. § 24.2-802(A) (“The State Board

of Elections shall promulgate standards for . . . accurate determination of votes based upon

objective evidence and taking into account the counting machine and form of ballots approved

for use in the Commonwealth ….”). Pursuant to that authority, the State Board adopted and

promulgated the Ballot Examples in 2015.

Virginia law requires recount courts to use the Ballot Examples when making

determinations on hand-counted ballots. Id. § 24.2-802(D)(1) (“The ballots that are set aside, any

ballots not accepted by the scanner, and any ballots for which a scanner could not be

programmed to meet the programming requirements of this subdivision, shall be hand counted

using the standards promulgated by the State Board pursuant to subsection A.) (emphasis

added). Recount courts are not permitted to use other guidelines, or invent their own standards,

when adjudging a ballot. See Ballot Examples at 1 (“For any printed ballot that can and is to be

counted manually, the following guidelines shall be used in determining the voter’s intent.”).

Accordingly, this Court adopted the Ballot Examples as part of its Preliminary Recount Consent

Order. See Recount Procedural Order at ¶¶ 16-25.

The statute contemplates that the recount court might require the assistance of the State

Board and Department of Elections when counting ballots. The recount court is encouraged to

seek such assistance and both the State Board and Department of Elections are required to

provide it. See Va. Code Ann. § 24.2-802(B) (“The court shall call for the advice and cooperation

of the Department, the State Board, or any local electoral board, as appropriate, and such boards

or agency shall have the duty and authority to assist the court.”).

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 2. There is no basis in the Ballot Examples to count the ballot in
question as a vote for Mr. Yancey.

The Ballot Examples establish a strong presumption that a ballot marked for more than

one candidate will be deemed an overvote and not counted as a vote for any candidate. “Any

ballot which is marked for more than one candidate for the office shall be deemed an overvote

and no vote shall be counted except as provided in this section.” Ballot Examples at 5 (emphasis

added). This standard is clear and unequivocal: a ballot that is marked for more than one

candidate cannot be counted for any candidate unless the Ballot Examples specifically provide

otherwise. That directive is consistent with Virginia law. See Va. Code Ann. § 24.2-802 (defining

an “overvote” as “a ballot on which a voter casts a vote for a greater number of candidates or

positions than the number for which he was lawfully entitled to vote and no vote shall be counted

with respect to that office or issue.”). And it reflects sound policy: awarding a vote to a candidate

on a ballot with two marked candidates runs a serious risk of making a two-vote error in the

overall margin, if the wrong candidate is awarded the vote.

There are two specific types of ballots where the presumption can be defeated, which are

described in Sections 5 and 8 of the Ballot Examples. Section 5 directs that “[i]f there are

identical marks for two or more candidates, clarified by an additional mark or marks that appear

to indicate support, the ballot shall be counted as a vote for the candidate with the additional,

clarifying marks.” Ballot Examples at 6. On the other end of the spectrum, Section 8 provides

that “[a]ny ballot that has any mark, as above, in the target area or candidate area for one

candidate, and on which other marks in the target areas or candidate areas for any other

candidates have been partially erased, scratched out, or otherwise obliterated, shall be counted as

a vote for the candidate for which the mark was not erased, scratched out, or otherwise

obliterated, provided no other candidate is similarly marked.” Id. at 8.

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 Both of these carve-outs are intentionally narrow, to remain consistent with the statutory

definition of overvote and to reflect the State Board’s policy to treat most ballots marked for two

candidates as overvotes. The Ballot Examples instruct that a ballot that includes identical marks

for two candidates but where the voter (a) circles the name of one candidate, (b) circles the target

area for one candidate, (c) includes an arrow pointing to one candidate, or (d) includes written

instructions in support of one candidate (“This One”) should be counted in support of the

candidate with the additional mark. On the other hand, Section 8 instructs that a ballot that has

identical marks for two candidates but where the voter (a) scribbles out the mark for one

candidate, (b) includes an X through the oval and scribbles out the mark for one candidate, or (c)

partially erases the mark for one candidate should be counted in support of the candidate without

the additional mark.

Each of the marks enumerated in Sections 5 and 8 reflect clear-cut indicia of support or

opposition for one candidate; there is no ambiguity whatsoever about the meaning of any of these

enumerated marks. On the other hand, a slash mark through an oval is not inherently clear cut: it

can either be an indication of support for a candidate (the equivalent of a check-mark or an

arrow) or it can be an indication of opposition (the equivalent of a strike-through mark). Notably,

the Ballot Examples do not classify slash marks – or any other ambiguous marks – as marks of

support under section 5 or marks of opposition under section 8. Therefore, the default rule – a

ballot with marks for two candidates is an overvote – should have applied to the ballot in

question. Notwithstanding this, the Court interpreted the slash mark as a partial erasure, slash

mark, or obliteration under section 8 – a mark of opposition to Ms. Simonds – and awarded the

vote to Mr. Yancey.

17
 Nothing in the Ballot Examples authorized this Court to presume that the slash mark in

question should be read as a mark of opposition to Ms. Simonds. There are zero instances in the

Ballot Examples where a slash mark is treated as indicia of opposition to a candidate. Meanwhile,

there are several instances throughout the Ballot Examples where the slash mark is treated as an

indicia of support for a candidate with the mark. See Ballot Examples, Exs. 3(c)-(e), 3(k)-(l),

7(b), 7(j). Moreover, on the ballot in question, the voter included a nearly identical mark (a filled

in oval with two additional slash marks) next to the name of Ed Gillespie in the Governor’s race,

and did not include a mark of support for any other candidate – thereby qualifying as a vote for

Mr. Gillespie. In other words, on the very same ballot, this voter appears to have used slash

marks to underscore support for a candidate. Because Mr. Gillespie and Ms. Simonds are

similarly marked, Section 8 cannot be invoked to count the ballot against Ms. Simonds and for

Mr. Yancey.

Nor would this Court be justified in awarding a vote to Mr. Yancey because it deemed

one recognized mark of support (e.g. a filled-in oval) to be somehow more valid than another

recognized mark of support (e.g. a slash mark). Example 5(a) stipulates that a ballot that includes

a slash mark for one candidate and a check mark for the other three candidates is an overvote.

Similarly, Example 5(c) stipulates that a ballot that includes a check mark for one candidate and

an “X” through the target area for the other three candidates is an “overvote.” In other words, if

the voter includes recognized marks of support for more than one candidate, the Ballot Examples

instruct that the ballot be deemed an overvote.

3. The court may affirmatively seek guidance from the State Board.

A ballot is a bit like a Rorschach Test: reasonable lay people looking at the ballot in

question could interpret the slash mark as indicia of support for Ms. Simonds or as indicia of

18
opposition to her. But Virginia recount courts are not afforded the same latitude. They must base

their decisions on the Ballot Examples, which direct that a ballot marked for two candidates

“shall be deemed an overvote,” unless otherwise specified. The Ballot Examples simply do not

address whether a slash mark through a filled-in oval is a mark of support for a candidate or a

mark of opposition against her. The Chair of the State Board of Elections, James Alcorn,

effectively conceded as much when he noted that, as a result of this Court’s decision, “[a]t some

date in the future, we will discuss this example and probably add it to our standards for hand-

counting ballots,” Chair Alcorn said. Graham Moomaw, Virginia elections board to meet next

Wednesday to hold random drawing to pick winner in tied House, RICHMOND TIMES DISPATCH,

Dec. 21, 2017, available at http://www.richmond.com/news/virginia/government-

politics/virginia-elections-board-to-meet-next-wednesday-to-hold-random/article_6c84c93d-

394b-5f1c-8811-32b0e7a30ac3.html (emphasis added).

To ensure that its decision on this ballot is consistent with the State Board’s guidelines,

and given the importance of the disposition of this ballot, the Court should reconsider its prior

decision and seek the advice and cooperation of the Department of Elections and State Board

before rendering a final decision. Virginia law instructs recount courts to seek “the advice and

cooperation of the Department [and] the State Board … as appropriate, to assist the court.” Va.

Code Ann. § 24.2-802(B). This area of law is highly technical in nature and the Virginia

legislature has delegated to the State Board and the Department of Elections – the agencies with

expertise in the area – the authority to promulgate standards for counting ballots. Because

Virginia law denies appeals courts a role in the process, the only way to ensure uniformity in

counting ballots is for recount courts to affirmatively seek guidance from the State Board and the

19
Department of Elections. See Va. Code Ann. § 24.2-802(H) (denying litigants the right of

appeal). This Court should do so here.

IV. CONCLUSION

For the reasons set forth herein, Petitioner respectfully requests that this Court reconsider

its decisions to consider Mr. Mallory’s challenge letter after the recount in all precincts had

concluded, to re-determine the vote totals in the Warwick precinct after the recount, and to count

the ballot in question as a vote for Mr. Yancey. Upon reconsideration, Petitioner requests that

the Court enter the attached Proposed Order declaring Petitioner Shelly A. Simonds to be elected

to the Virginia House of Delegates to represent House District 94.

20
Exhibit A
Exhibit B
Exhibit C
Exhibit D
 BALLOT EXAMPLES

Ballot Examples
Hand Counting Printed Ballots for Virginia Elections or
Recounts
Department of Elections
Commonwealth of Virginia

(Adopted at the 10/6/2015 meeting of the State Board of Elections)

For any printed ballot that can and is to be counted manually, the following guidelines shall be
used in determining the voter’s intent.

(1) As used below, the “target area” of the official ballot is the square, oval, or incomplete arrow next to the
candidate’s name on the printed ballot. The “candidate area” is the area between the lines separating
candidate names, if the ballot includes such lines, or the area that is clearly closer to one candidate’s name
than another. The “candidate area” includes the candidate’s name and party affiliation if listed, or “I” for any
independent using that designation. These instructions only deal with marks that are under the office being
recounted, except as provided in items 10 and 11.

(2) These instructions assume that the recount is for a single-seat office. That is, the voter was only permitted
to vote for one candidate for the office. For multi-seat offices, the ballot shall be counted pursuant to the
guidelines below so long as the voter has not voted for more candidates for that office than he is allowed to
vote (in which case no votes are to be counted for the office).

(3) Any ballot that is properly marked (as specified for the type of ballot) in the target area for one candidate
only for the office shall be designated as a vote for that candidate.

1
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 BALLOT EXAMPLES
Votes to be counted:

a b c

d e f

g h i

j k l

2
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 BALLOT EXAMPLES
(3 continued) Votes to be counted:

m n o

p q r

(4) If a write-in candidate is a party to the recount, a vote shall be counted for the write-in candidate if
his name is written on the ballot under that office, even if the write-in square, oval or arrow is not
marked, and provided that no other candidate is marked for that office.

Votes to be counted:

a b c

d e f

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 BALLOT EXAMPLES
(4 continued) A write-in vote for a candidate whose name appears on the ballot for the same office may
not be counted.
Votes may not be counted:

g h i

j k

A write-in vote in addition to a vote for a candidate for the office is an overvote and no vote shall be
counted.
Votes may not be counted:

m n

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 BALLOT EXAMPLES
(5) Any ballot which is marked for more than one candidate for the office shall be deemed an overvote
and no vote shall be counted except as provided in this section.

Votes may not be counted:

a b

c d

e f g

h i j

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 BALLOT EXAMPLES
(5 continued) However, if more than two candidates had their names printed on the ballot for the office,
and the names of all but one candidate are stricken through, that ballot shall be counted for the one
candidate whose name was not stricken through.

Votes to be counted (for candidate not stricken through):

k l m

If there are identical marks for two or more candidates, clarified by an additional mark or marks that
appear to indicate support, the ballot shall be counted as a vote for the candidate with the additional,
clarifying marks.

Votes to be counted (for candidate with additional clarifying mark):

n o

p q

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 BALLOT EXAMPLES
(5 continued) Votes to be counted (for candidate with additional clarifying mark):

r s t

(6) Any ballot that has any other mark or marks in the target area or candidate area for one candidate
only, including circling the target area and/or the candidate's name or making a mark through the target
area or candidate's name, provided no other candidate for that office is similarly marked, shall be
counted as a vote for that candidate

Votes to be counted:

a b c

d e f

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 BALLOT EXAMPLES
(6 continued) Votes to be counted:

g h i

j k l

m n o

p q r

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 BALLOT EXAMPLES
(6 continued) Unless the mark is a clearly negative or extraneous comment

Votes may not be counted:

s t u

v w

[Or unless] a substantial part of the candidates name is crossed through or stricken out.

Votes may not be counted:

x y z

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 BALLOT EXAMPLES
(7) Any ballot that has a mark or marks in the target area or candidate area for one candidate, which
extends partially into one or more other target areas or candidate areas, shall be counted as a vote for the
candidate so marked only if it is readily apparent that at least 3/4ths of the mark is in that candidate's
area or target area, and no other candidate is similarly marked.

Votes to be counted:

a b

c d

e f g

h i j
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 BALLOT EXAMPLES
(7 continued) Other such marks, extending across more than one candidate’s area, may be counted if the
lines of the "x" or the bottom point of the check mark (√) clearly lie inside the box or on top of the name
or party affiliation or candidate area of one candidate, and no other candidate is similarly marked.

Votes to be counted:

k l m

n o p

(8) Any ballot that has any mark, as above, in the target area or candidate area for one candidate, and on
which other marks in the target areas or candidate areas for any other candidates have been partially
erased, scratched out, or otherwise obliterated, shall be counted as a vote for the candidate for which the
mark was not erased, scratched out, or otherwise obliterated, provided no other candidate is similarly
marked.

Votes to be counted:

a b c

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 BALLOT EXAMPLES
(8 continued) Votes to be counted:

d e

(9) Any ballot that has a mark that is clearly next to (either before or after) a candidate's name, or across
the name, shall be recognized as a mark under items 1-6 above. Similarly, a mark between or over the
"timing marks" of the ballot, that are clearly opposite or next to one candidate's name and not near
another candidate's name, shall be recognized as a mark. (The "timing marks" are the small lines or
boxes running down the right and/or left sides of certain electronically read or scanned ballots, which
line up the ballot in the reader.)

Votes to be counted:

a b c

A mark that is between or across more than one candidate’s name, candidate area, or target area shall not
be recognized as a mark except under items 5 and 6 above.
Votes may not be counted:

d e f
12
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 BALLOT EXAMPLES
(9 continued) Votes may not be counted:

g h i

j k

m n o

p q r

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 BALLOT EXAMPLES

(10) Any other writing or remark on the ballot (other than a write-in unless a write-in candidate is a
party to the recount) that clearly indicates the voter's support for one and only one candidate for the
office that is the subject of the recount, and that cannot be interpreted as a remark in favor of any other
candidate in that election, shall be counted as a vote for that candidate.

Votes to be counted:

a b c

Writings or remarks which appear to be ranking the candidates (letters, numbers, +/-, etc.) shall not be
considered valid marks unless only one candidate is marked and no other candidate is similarly marked.

Votes may not be counted:

d e f

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 BALLOT EXAMPLES
(11) Any other writing or remark on the ballot which indicates the voter's opposition to one or more
candidates, provided the ballot is not so marked as to indicate which candidate the voter supports, shall
not be counted as a vote for any candidate.

Votes may not be counted:

a b c

(12) Any ballot on which there is no mark under the office, or any other remark indicating support for a
candidate for the office, shall not be counted as a vote for any candidate.

Votes may not be counted:

a b c

d e

Virginia Department of Elections

July 2015
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