Recount affirms Baliles’s 1st District win, but Tyler may file contest to City Council

On November 6th, Jon Baliles earned a razor-thin win in the 1st District City Council race against incumbent Bruce Tyler. But even after last night’s recount affirming the victory, Tyler may still contest the results.

December 20, 2012; 12:53 PM • by Nathan Cushing

Update #6 — December 20th, 12:53 PM

Yesterday, a panel of three judges confirmed the results from a day-long recount of votes cast in last month’s 1st District City Council race. When the day was over, Jon Baliles came away with 6,339 votes, and the incumbent, Bruce Tyler, had 6,319.

Shortly after 9:30 AM yesterday, election officials, members of the electoral board, the City’s Registrar, the City’s Circuit Court Clerk, attorneys representing Bruce Tyler and Jon Baliles, and Baliles himself met in a room in the John Marshall Courts Building to attend the nearly nine-hour recount of votes. Yesterday’s recount was funded by the City because the disparity in votes between the two candidates was less than one percent. Edward Jewett, Assistant Chief Deputy of the city’s Circuit Court Clerk’s Office, was present at the beginning of the recount proceedings.

“We kept the records from the election and we went over them again…just recounting what had [already] been recounted,” Jewett said of the City Circuit Court Clerk’s office role.

Three teams, each consisting of two election officials, went vote-by-vote “filling out forms tabulating the votes precinct-by-precinct.” When the recount was completed around 6:30 PM, the parties went upstairs to present the findings to a panel of three judges, including Chief Judge of Richmond Circuit Court, Bradley Cavedo, and two others from other Virginia cities. The judges confirmed the results of the recount naming Baliles the winner by 20 votes.

“We’re glad it’s over,” Baliles said today by phone. He called the conclusion of the recount an end to a “six-week long election night.”

However, election night may not be over just yet.

Separate from the recount, Bruce Tyler filed a legal contest of the election results. He argues, among other things, that many voters were disenfranchised “because they never received their absentee ballots from the General Registrar,” as stated in the legal filing (pdf). Among the complaints were that 15 voters who submitted absentee ballots did not have their votes counted. However, both Baliles and his legal representative, Anthony F. Troy, said these claims of contest are “without foundation.” (Baliles’ legal response to the contest can be read here.)

“The allegations that I’ve seen in the contest are not enough to turn-around the results of the election,” said Troy by phone this morning. Troy served as Attorney General for Virginia from 1977-1978.

“[Mr. Tyler’s] alleged that there were 15 absentee ballots that were rejected without proper cause.” Troy said that some of the envelopes containing individual ballots did not contain the proper identification (name, address, etc.) of the voter, as required by law. As a result, election officials who count absentee ballots “don’t even open the envelope to the see the ballot inside,” because the voter’s identity cannot be confirmed, Troy said. By law, those ballots are discarded. He added that “all 15 [ballots] were rejected for a proper reason.” Additionally, Troy said there is no way to prove that those discarded votes even contained votes for Tyler. “You can’t [contest results] on speculation.”

Not only does Baliles attorney feel Tyler’s contest is frivolous, but Troy added that Tyler filed his contest improperly. “The City charter makes clear that City Council, not a three judge contest court, is the “judge” of the election…” Troy said. It will be up to Tyler to decide whether he will submit his contest to City Council.

“I have not made any decisions yet at this point,” Tyler said by phone this morning on whether he will do so. He said that he will confer with his attorneys tomorrow to decide how to proceed.

Tyler claimed that his legal efforts to contest the election is not out of desperation to hold political office. “I want to make sure that every vote counts,” Tyler said. “I think there are some disenfranchised voters.” While a contest to the election results filed to City Council, and any subsequent appeals, could take months to wade through, the Virginia State Board of Elections has certified Baliles winner of the 1st District City Council race, and Baliles will be sworn in on January 2nd.

The incoming Councilman said, “I’m going to take some time over the holidays…to go through my list prioritizing” initiatives he plans to bring to City Council in his first term.

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Update #5 — December 19th, 10:50 PM

From Jon Baliles Facebook:

After 10 hours in court today, the recount is over and we remain the winner of the election with 6,339 total votes to 6,319! Also, the contest lawsuit was dismissed in Circuit Court. I’ll post more details tomorrow but am now going to enjoy this evening!! Thanks for all your supprt!!

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Update #4 — December 9th, 9:00 PM

By Paul Hammond

Councilman Bruce Tyler filed suit last week in Richmond Circuit Court to overturn the results of the election he lost by a razor thin margin (22 votes out of 12,722) to challenger Jon Baliles asserting election irregularities. The Richmond Electoral Board certified Baliles as the winner on November 16th. The results of a recount are due by December 19th. The Tyler lawsuit maintains all of the following occurred.

At least 10 voters did not receive requested absentee ballots.
At least 7 voters received absentee ballots too late to cast them.
15 voters did not receive notice their absentee ballots were rejected for technical reasons, depriving them of the opportunity to correct them.
One voter’s ballot was rejected as late when he delivered it to his precinct on election day.
One voter was denied the right to cast a provisional ballot.
One voter was only allowed to vote in the presidential election, not the Council race.
Precinct 105 counted 12 more voters than were recorded in the pollbook.
Precinct 102 counted 9 more voters than were recorded in the pollbook.

Absent these irregularities, the lawsuit maintains Councilman Tyler would have won the election. As relief he is requesting the election board either declare him the winner or invalidate the election and hold the seat vacant until a new election can be called.

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Update #3 — November 20th, 2:08 PM

Bruce Tyler has yet to file a request to recount votes from the 1st District’s City Council election, said Edward Jewett, Assistant Chief Deputy of the city’s Circuit Court Clerk’s Office, the agency responsible for overseeing recounts.

“As of this point, no petition has been filed,” said Jewett by phone.

He said that candidates have 10 days to file a petition after election results have been certified. However, he added the Circuit Court will still accept recount petitions after 10 days, but that lawyers representing candidates may challenge the validity of that petition. Ultimately, he said, the Circuit Court merely oversees recounts and does not rule on whether they will happen.

City registrar, J. Kirk Showalter, confirmed that the results of the election between Jon Baliles and Tyler were certified last Thursday, the 15th. That gives Tyler 10 business days to file a petition, which would fall on Thursday, the 29th. It’s unknown whether the Thanksgiving holiday counts toward the 10 day cut-off. If it doesn’t, Tyler would presumably have until Friday the 30th to file a recount request. Ultimately, the candidate said a petition for a recount is forthcoming.

Speaking on the phone this afternoon, Bruce Tyler said he will file a recount petition by the cut-off date. “I plan on doing it,” he said.

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Update #2 — November 13th, 10:13 AM

City registrar, J. Kirk Showalter, confirmed the provisional ballot totals netting Jon Baliles a 22 vote lead in the election (see previous update).

While the tallies are complete, the vote will not be officially certified until later today, said Showalter. Only when the votes are certified can either candidate petition a recount, which Bruce Tyler plans to do.

Speaking on the phone this morning, Bruce Tyler said he would seek a recount once the votes have been certified. “Every vote needs to count,” Tyler said. When asked if he believed there to be election inconsistencies, the second-term councilman stressed, “I have not seen anything” concerning election totals. He voiced no frustrations to the prolonged vote counting, now in its second week. “There’s a process in place,” he said, and one that he said he has faith in.

Showalter said that a recount is a “re-tally from what was tallied before,” a process that should only take one day. However, the final certification for the recount may not be available until next week. The recount would be funded by the City, costs that Showalter said “are not huge.”

Either candidate can also challenge the results by way of contest. This differs from a recount in that it suggests election errors and inconsistencies (e.g. voter fraud, voter suppression). Tyler said he had not seen evidence to warrant a contest in this election.

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Update #1 – November 13th, 8:40 AM

According to candidate Jon Baliles, the City Registrar’s office has certified last Tuesday’s District 1 City Council election results, naming him the winner.

Yesterday, the ~~Board of Elections~~ local electoral board reviewed 34 provisional ballots submitted in Tuesday’s contest. Of them, only 11 were deemed valid, according to Baliles.

Five votes went to Bruce Tyler, three went to Jon Baliles, and three had no choice. With these additions to existing vote tallies, Baliles was certified the winner with a narrow 22-vote lead.

Because of the close results, the City will launch a recount, which may be completed as early as this week.

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Original

General Registrar of Richmond City, J. Kirk Showalter, said that the city’s registrar office is “taking a cautious approach” as they count District 1 ballots. “We are still in the process of doing our initial review,” she said by phone this afternoon.

Currently, Jon Baliles leads with 6,183 votes followed closely by Tyler with 6,159 votes (a difference of only 24).

Registrar workers are now reviewing electronic voting machines. “We look at the tape and make sure that all the machines’ results were properly reported.” However, those votes are not the only ones officials are paying attention to.

Those who voted provisionally, meaning those votes that are questionable until valid identification is given by the voter, have until 12:00 PM Friday to provide that identification.

Showalter said that ballot reviews “will take at least through tomorrow.” She is hesitant to give a specific timetable for when votes will be certified. “We’re also not going to sacrifice a detailed review for expediency.” However, it’s likely that a decision will come Friday, or sometime next week.