On chads in Virginia

The prospect of a recount in the race between McDonnell and Deeds brings to mind Bush v. Gore.

In connection with Bush v. Gore, the Commonwealth filed an amicus brief, by Attorney General Mark Earley and his Chief Deputy Randolph Beales and Solicitor William Hurd, with this interesting snippet about the 1989 recount in Virginia:

"In 1989, there was a statewide recount in the Virginia gubernatorial race. Based on official returns, the Democrat, L. Douglas Wilder, appeared to defeat the Republican, J. Marshall Coleman, by a margin of 6,854 out of 1,787,424 votes cast, a margin of less than one half of one percent. Coleman then petitioned for a recount, which Virginia law provides must be conducted under the auspices of a special three-judge court. Va. Code § 24.2-801 (formerly § 24.1-249). It is most instructive that, although the recount procedures were vigorously contested, the counting of indented chads was recognized by all sides as being out of bounds. Instead, invoking the bipartisan precedent of the 1985 McCloskey/McIntyre Congressional contest, Coleman sought to count as votes only those punch card ballots where two or more corners had been detached. Coleman v. Wilder, Cir. Ct. City of Richmond (No. N 8541-1) (1989), Petitioner's Memorandum Regarding Recount Procedures, at 25-26. Wilder was unwilling to go even that far, stating:

A physical recount of the punch card ballots used in this election would be fraught with tabulation errors. The ballots are designed with the specific intent to be read and counted by machine tabulators, and, as a consequence, they are not easily read by the human eye . -- [T]he counting of votes by such machines is inherently more reliable than a manual count. Displacing the machine generated results with the results of a hand counting of punch cards would be a giant step away from achieving an accurate vote count.

Id., Respondent's Memorandum Concerning Recount Procedures, at 25. The recount court resolved the issue by denying any manual recount of punch card ballots, but allowing them to be re-read by re-programmed and re-tested computers. Id., Order Fixing Procedures, at 6, 8."