A panel of three judges will put the 37th State Senate campaigns to rest when they complete the race's recount Dec. 19.
The Virginia State Board of Election declared Sen. Ken Cuccinelli (R-37) the winner of the race last month. But Democratic candidate Janet Oleszek requested a state recount since the margin of error was less than 0.5 percent, said campaign manager Jonathan Murray.
Cuccinelli only beat Oleszek by 92 votes in a race where over 37,000 were cast, according to Virginia's voting records. If one voting machine malfunctioned and recorded the wrong votes, the entire outcome could change, said Murray in the week following Election Day Nov. 6.
The current state senator said he is confident that he won the vote, albeit by a small margin. The voting machine tapes, which record how many people voted for each candidate, have been reviewed several times at this point, he said.
"I don't expect the recount to change anything," said Cuccinelli, who added that he does have concerns Oleszek will try to use aggressive methods during the recount court proceedings to have votes and entire machines tossed out of consideration.
The senator has been preparing for such an action and continued to raise money after the election to cover his recount legal expenses.
IN ADDITION to reviews that took place on election night, Oleszek and Cuccinelli have been through a "canvass" in which all the tapes that recorded the votes and absentee ballots that may be hard to read are reviewed.
During that process, which took place during the days immediately following the election, Cuccinelli picked up at least one vote.
The official recount looks different from a canvass. Three judges, two from outside the area, oversee the proceedings and both Oleszek and Cuccinelli have offered an idea about how they think the votes should be examined.
Oleszek is requesting that all the absentee ballots — those processed by an optical scan — be run through the machine that counts them again.
She is also requesting that 10 of the ballot images, or photographs, of each vote taken on 10 higher-tech voting machines be retrieved and compared to the vote on election night. In this case, both Oleszek and Cuccinelli would be able to choose five machines each.
In a brief to the court, Cuccinelli's legal team argued that these methods of examining ballots should not be used because the practices are not allowed by Virginia laws governing recounts.
The recount law specifically refers to looking at the "tapes" or print outs of the votes from the machines to see if they are legible, said the state senator. Furthermore, some legislation that would required a recount to include the measure Oleszek had proposed as part of a regular recount has failed to pass the General Assembly several times, he said.
"[The requests] are totally outrageous. It is like they are ignoring the Virginia law," said Cuccinelli.
The panel of judges is expected to make a decision on what processes can be used to examine the votes and voting machines during a hearing on either Dec. 14 or Dec. 15.
OLESZEK has good reason to be optimistic about what a recount might have in store for her. Del. Jim Scott (D-56) initially lost his first House of Delegates race by 16 votes in November 1991 but then ended up winning by one vote after the absentee ballots were re-checked a month later in December, Scott said.
At that time, the absentee ballots were counted by hand, according to the delegate.
"I was very surprised. I didn't know I had won the race until Dec. 18 or 19. I mean I obviously knew I had a chance of winning, but I didn't think it was a very good one," said Scott in an interview.