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SHELLY A. SIMONDS, )
)
Petitioner, )
)
v. ) Civil Action No. CL 1704240B-04
)
DAVID E. YANCEY )
)
Respondent. )
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
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
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
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
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
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
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
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.
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
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
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
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
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
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.
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
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-
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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
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,
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
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.
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
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
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
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
These initial decisions are consistent with the State Board’s Ballot Examples for
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
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
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
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
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
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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
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
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
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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
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
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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,
politics/virginia-elections-board-to-meet-next-wednesday-to-hold-random/article_6c84c93d-
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
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
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
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
Rev. – 10/2015
BALLOT EXAMPLES
Votes to be counted:
a b c
d e f
g h i
j k l
2
Rev. – 10/2015
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
3
Rev. – 10/2015
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
4
Rev. – 10/2015
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.
a b
c d
e f g
h i j
5
Rev. – 10/2015
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.
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.
n o
p q
6
Rev. – 10/2015
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
7
Rev. – 10/2015
BALLOT EXAMPLES
(6 continued) Votes to be counted:
g h i
j k l
m n o
p q r
8
Rev. – 10/2015
BALLOT EXAMPLES
(6 continued) Unless the mark is a clearly negative or extraneous comment
s t u
v w
[Or unless] a substantial part of the candidates name is crossed through or stricken out.
x y z
9
Rev. – 10/2015
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
10
Rev. – 10/2015
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
11
Rev. – 10/2015
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
Rev. – 10/2015
BALLOT EXAMPLES
(9 continued) Votes may not be counted:
g h i
j k
m n o
p q r
13
Rev. – 10/2015
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.
d e f
14
Rev. – 10/2015
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.
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.
a b c
d e