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Figuring out what is or isn't a valid ballot in Virginia

January 4, 2018

Mark J. Rozell

Deciding the outcome of a tied Virginia House of Delegates race by pulling a name out of a stoneware bowl should force the state General Assembly to better codify what constitutes a valid ballot, a George Mason University professor said.

“The Virginia General Assembly needs to act legislatively to ensure this kind of spectacle never happens again,” said Mark J. Rozell, dean of George Mason’s Schar School of Policy and Government. “As it stands, the manual of the Virginia Board of Elections (VBE) is a mess regarding descriptions of what is, or is not, a valid ballot.”

“The one ballot in question that led to the tie looks to many like a ballot that should have been disqualified,” Rozell added. “But the judges, relying on the flawed VBE instructions, felt otherwise.”

On Election Day, Republican David Yancey, who ultimately won the election when his name was drawn on Thursday, appeared to beat Democrat Shelly Simonds by 10 votes in the 94th legislative district. But a Dec. 19 recount put Simonds ahead by one vote.

The next day, The Washington Post reported, a three-judge recount court decided a ballot declared ineligible during the recount should be tallied for Yancey, tying the race at 11,608 votes apiece. The voter had filled in bubbles on a paper ballot for both Simonds and Yancey, but also made a slanted mark across the Simonds bubble. The voter also voted Republican in every other race.

The court ruled the extra mark was an effort to strike out the vote for Simonds, setting up Thursday’s drawing.

How do we avoid this situation in the future? Rozell has some ideas.

First, he said, there needs to be a standard of voter intent that must be demonstrated in order for the vote to count.

Also, votes should count only when no speculation or projection is required. And the General Assembly should make clear that only markings on the contested race should be considered.

“We cannot simply say that we should look at voter intent if the ballot is unclear,” Rozell said, adding, “Voters should be expected to follow simple instructions.”

Mark J. Rozell, the author of nine books on various topics in U.S. government and politics, can be reached at 703-993-8171 or mrozell@gmu.edu.

For more information, contact Damian Cristodero at 703-993-9118 or dcristod@gmu.edu.

About George Mason

George Mason University is Virginia’s largest public research university. Located near Washington, D.C., Mason enrolls 36,000 students from 130 countries and all 50 states. Mason has grown rapidly over the past half-century and is recognized for its innovation and entrepreneurship, remarkable diversity and commitment to accessibility.