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Creigh Deeds had asked that all optical-scan ballots be run through machines again.
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Date published: 12/10/2005
Deeds lost the election by 323 votes to Republican Bob McDonnell, and petitioned for a recount.
The panel, led by Judge Theodore Markow, ruled unanimously against Deeds' attorneys' motion that all optical-scan ballots be rescanned through the voting machines in the recount, scheduled for Dec. 20.
Markow said that to request rescanning all the ballots, the court needed evidence that there was a "significant" likelihood of there being enough miscounted ballots to overturn the election results. Such evidence was not presented, he said.
Seventy-nine localities--just over half the total number in the state--use optical-scan machines, which require paper ballots; others use touch-screen or lever machines, and one uses paper ballots. The touch-screen and lever machines do not produce a paper trail; the only way to recount those votes is to look at the number totals. Optical-scan machines produce a printout of totals, which is what election workers doing the recount will look at now.
Deeds' lead attorney, Joseph Kearfott, had argued that all ballots from optical scan machines should be recounted to ensure that none had been miscounted through human error. He had filed affidavits from election workers in two counties who said that some ballots that were damaged, or marked in a way the machines couldn't read, were never counted at all and were not segregated from other ballots.
"We don't know how many other instances may exist," Kearfott said, but the existence of two suggested there might be other localities with the same problem.
"There are votes out there that were cast for attorney general on Election Day that have not been counted," he said. "It is not complex, it is simple. Here, there is a meaningful chance that all of that could result in the difference in who won the election."
McDonnell attorney William Hurd had argued against rescanning all the optical-scan ballots, saying that feeding thousands of ballots back through machines increased the chances for human error.
"If you follow [Kearfott's] plan, you will have a great deal of difficulty," Hurd said. "It is inviting so much controversy, confusion, sorting out of ballots."