Timeline for
the Legal Battle Between
Joe Dan Johnson (DEM) and Larry Saunders (GOP)
Over the Disputed Election
For the South District Seat
On Nelson County's Board of Supervisors

Some of you may have already read recent newspaper reports about a legal battle that is raging over the election for the South District seat on the Board of Supervisors in Nelson County, Virginia. In this timeline, I will attempt to relate the sequence of events as I know them.

This timeline is annotated wherever possible with links to scans of original documents filed in various courts.

What follows is:

A FINAL TRIAL WAS HELD ON WEDNESDAY JANUARY 30TH, AND JOE DAN JOHNSON WON! LARRY SAUNDERS' CASE WAS SO WEAK, THEN THE JUDGES DISMISSED THE CASE WITHOUT JOE DAN EVEN HAVING TO PRESENT HIS DEFENSE. See below for details.




Summary:

This web page is about the Nelson County Virginia South District Supervisor's race, the dispute over who won that race, and numerous irregularities that have occurred, since the election, related to the dispute.

Irregularities? There is evidence indicating that the Republican candidate and his lawyer as well as the judge overseeing this dispute, have taken actions that are, at best, "questionable" and at worst may be in violation of Virginia law!

Copies of most court filings in this case can be found here.




Overview:

As you may know, there were four candidates running in the South District Supervisors race: The margin of victory between the winner and 2nd place was very close. Mr. Johnson beat Mr. Saunders by just three votes (324 vs. 321). (Mr. Ponton and Ms. Allen were distant 3rd and 4th place finishers, respectively).

But now a legal battle has erupted between Mr. Johnson and Mr. Saunders. Mr. Saunders is fighting hard to take the election away from Mr. Johnson.

Mr. Saunders naturally asked for a recount. The recount happened and confirmed the 3 vote margin.

Mr. Saunders also filed a "Bill of Complaint" in the Nelson County Circuit Court both contesting the election and asking (among other things) that Mr. Johnson be enjoined from taking his seat on the Board of Supervisors pending resolution of Mr. Saunders' complaint.

On December 21st 2007, Judge Johnston (then, the Chief Judge of the Circuit Court) issued an order granting that injunction. So Mr. Johnson was not allowed to serve as South District Supervisor.

Along the way, Mr. Saunders and his lawyer (Daniel Rutherford) were permitted by the Judge to examine the paper ballots that had been counted by the machines. They were allowed to do this without notice to Mr. Johnson and without notice even to the County's Electoral Board (the governmental body charged with conducting and overseeing the elections).

In other words, Mr. Saunders and his lawyer were given unilateral, private and physical access to the pieces of paper that the machines had counted. The only observer to this access was Judy Smythers, the Clerk of the Circuit Court.

Interestingly, this secret access (secret at least from both the Democrats and even the Electoral Board, but not, apparently, secret from local Republicans) occurred prior both to the official recount and to the filing of the initial complaint by Mr. Saunders!

Also, there is evidence that Mr. Saunders and his lawyer (Mr. Rutherford) were allowed to take written notes about their findings. In other words, while physically handling the ballots, in secret from the Democrats and the Electoral Board, they apparently were also allowed to have and use pens and pencils!

(Added 01/23/08) Also, we have now learned that during their examination of the ballots, Mr. Saunders and Mr. Rutherford were allowed to open and examine three provisional ballots that had been rejected by the Electoral Board from being counted at all.

Since then, there have been other irregularities; however, that is the big one! Private access to the paper ballots allowed to one side of an election, without clear notice to the other side or even to the County's Electoral Board.




The Details:

November 6th: The election was held. After the machine ballots and absentee ballots were counted, Mr. Johnson held a 3 vote lead (323 to 320) over Mr. Saunders. There were also 7 provisional ballots which the Registrar's office would consider the next day.

(Note, when a provisional ballot is cast, it is not counted. Instead, it is sealed in an envelop with the voter's name and address on the outside. Later, the voter's eligibility to vote is reviewed, and if he/she is determined to be a rightful voter, then and only then is the envelop opened and the ballot looked at and counted.)

(Added 01/13/08) That night, all voting machines, along with all paper ballots, were brought back to the Registrar's office. The ballots, the keys to the machines and the machines' storage devices (containing all of the election data) were then sealed into envelopes/boxes and the seals were signed by all of the poll workers.
November 7th: (Revised 01/13/08) Starting at 9AM, the Electoral Board met to certify the election results. This was a public meeting. As part of the normal business of that meeting, the Board reviewed the provisional ballots, and decided to accept four of them and reject the other three. Of the accepted ballots, one turned out to be for Mr. Johnson, one was for Mr. Saunders and the other two were for Mr. Ponton. So Mr. Johnson's 3 vote lead held (324 to 321).

The remaining three rejected provisional ballots remained sealed, secret and uncounted.

(Revised 01/13/08) At the end of the public meeting, the machine counted paper based ballots, the absentee ballots, the counted and uncounted provisional ballots, the original machine tally tapes, the keys to the machines, and the storage devices with the election data were turned over to the custody of the Clerk of the Circuit Court (Ms. Judy Smythers' office).
November 8th: Larry Saunders filed a petition for a recount. By state law (§24.2-801), the Chief Judge of the Circuit Court must then notify the Chief Judge of the Supreme Court of Virginia who then must appoint a three-judge "Recount Court".

One of the three judges must be the Chief Judge of the Circuit Court. At the time of the filings, the Circuit Court's Chief Judge was J. Samuel Johnston.




December 3rd: (Revised 01/13/08) Judge Johnston verbally instructed the Clerk of the Court (Ms. Smythers) to give Mr. Saunders and his lawyer (Mr. Rutherford) access to examine the paper ballots. Accordingly, she allowed that examination.

[Neither any member of Nelson County's Electoral Board nor Mr. Saunders' opponent, Mr. Johnson, were aware that this was happening.]

[Note: This examination occurred both prior to the recount and prior to Mr. Saunders' filing of his complaint!]




December 5th: Both Mr. Johnson and David McBee (Chair of the Electoral Board) learned that Mr. Saunders and Mr. Rutherford had been given unilateral and private access to the paper ballots.




December 5th: (Added 01/13/08) Virginia Supreme Court Chief Judge, Justice Leroy R. Hassell, issued his order constituting the three-judge Recount Court. The appointed judges were:


December 6th: Mr. Saunders filed a "Bill of Complaint" with the court seeking to overturn the election. (Note, this filing occurred before the recount.) In his filing, Mr. Saunders main allegations were: Mr. Saunders did not specify what the "facts available at this time" were.

Mr. Saunders' filing mainly asked that the rejected provisional ballot be counted and that Mr. Johnson be enjoined from taking his seat on the Board of Supervisors.

Note: The disputed provisional ballot, if accepted, by itself could not have changed the election. It would require additional "facts available at this time" for that to happen. However, Mr. Saunders did not say what those additional facts were.




December 11th: The three-judge Recount Court met in Lovingston to hold their preliminary hearing wherein they set the rules of the recount. They then held the recount. Both Mr. Saunders and Mr. Johnson and their lawyers and members of the Electoral Board were present.

During the hearing, statements by both Mr. Rutherford and Judge Johnston revealed that Mr. Saunders had already been given access to the machine counted paper ballots.

Nonetheless, the three-judge Recount Court, following Supreme Court precedent set during the Creigh Deeds recount, decided that only the machine printouts would be examined. The machine counted paper ballots would not be looked at. (The governing law can be found at §24.2-802-D3.)

The recount confirmed Mr. Johnson's three vote victory.




December 13th: Mr. Johnson filed his answer to Mr. Saunders' complaint, denying that the disputed provisional ballot would have a material effect upon the result of the election, and asking that the Mr. Saunders' complaint be dismissed.




December 17th: (Revised 01/17/08) Judge Johnston, Chief Judge of the Circuit Court and member of the three-judge Recount Court, had been planning to retire from his Chief Judge position on December 31st 2007. Accordingly, on December 17th, Judge Johnston wrote a letter to the Chief Judge of the Virginia Supreme Court (Judge Leroy Hassell) informing him of the ongoing election complaint filed by Mr. Saunders, and notifying Judge Hassell of his (Judge Johnston's) "inability to sit" on the three-judge court.




December 17th: Mr. Saunders filed a motion to amend his complaint along with the amended complaint itself. In the amended complaint, Mr. Saunders alleges the following:
(1) "[...] since the filing of this cause, the Complainant has discovered additional objections [...]"
 
(2) The paper ballot machines had recorded 17 undervotes in the Supervisors race, but only 12 undervotes could be found.
 
(3) One of those undervotes should have been counted for Mr. Saunders but was not because the voter had made his mark outside of the voting oval.
 
(4) Another ballot was an overvote that should have been rejected but instead was counted for Mr. Johnson. On this ballot, there was a clear dark mark for Mr. Johnson, but there was also a mark, too small to be identified by the machine, for a write-in candidate, and a name was written in.
 
(5) Mr. Saunders reasserted his contention that one of the rejected provisional ballots should have been counted, and if it had, then it would have been a vote for Mr. Saunders.
 
(6) Mr. Saunders repeated his request that Mr. Johnson be enjoined from taking his seat.
Taken together, Mr. Saunders' vote challenges, if all are accepted by the court, will result in a tie election. By Virginia law tie elections are "decided by lot". (§24-2-746) (I.E. they "flip a coin".)




December 20th: Mr. Johnson was sworn in as the South District Supervisor.




December 21st: Without a hearing and without prior notice to Mr. Johnson, Judge Johnston signed an order (a) accepting the amended complaint and (b) enjoining Mr. Johnson from taking his seat on the Board of Supervisors.

[Note: This was done after Mr. Johnson was already sworn into office, so there is a question as to whether or not the Judge has the authority to summarily remove from office someone who has already assumed that office.]




December 28th: Mr. Johnson learned of the judge's week old order from an email sent the previous day by a secretary (apparently on her own initiative) in the Clerk of the Court's office. Official notice had not yet been sent by the Clerk herself.
January 1st: (Added 01/19/08) Judge J. Samuel Johnston retired as Chief Justice of the 24th Circuit Court, and Judge James W. Updike was appointed to replace him.




January 1st: (Updated 01/23/08) Mr. McBee, through his lawyer (Carlene B. Johnson), filed in the Circuit Court a motion to dismiss "with prejudice" Mr. Saunders' original complaint against him, and a second motion to dismiss "with prejudice" Mr. Saunders' amended complaint against him.

Note: "with prejudice", if granted, would require Mr. Saunders to pay all of Mr. McBee's legal expenses arising from Mr. Saunders' complaint. (VA law §8.01-271.1)




January 2nd: (Added 01/13/08) Mr. Johnson, through his lawyer (John Fishwick), sent notice to Judge Johnston and Virginia's Attorney General Robert McDonnell that Mr. Johnson was going to file a Writ of Prohibition with the Virginia Supreme Court arguing against the validity of Judge Johnston's order of December 21st.




January 3rd: Mr. Johnson, through his lawyer, filed a Writ of Prohibition (record #08-0018) with the Virginia Supreme Court arguing against the validity of Judge Johnston's order of December 21st.




January 7th: (Added 01/13/08) Mr. Johnson, through his lawyer, made two filings in the local Circuit Court: In these filings, Mr. Johnson argues (in part) the following:


January 10th: (Added 01/17/08) Chief Judge Updike wrote a letter to Mr. Rutherford (attorney for Mr. Saunders), Mr. Fishwick (attorney for Mr. Johnson), Mr. Ponton and Ms. Allen (the 3rd and 4th place finishers in the November 6th election) regarding a January 30th trial on Mr. Johnson's motion to set aside Judge Johnston's order of December 21st. (That order accepted Mr. Saunders' amended complaint and enjoined Mr. Johnson from taking his seat on the Board of Supervisors.) Judge Updike offered to hold a prehearing conference call on January 16th or 17th to discuss any issues that the parties wanted to address ahead of the hearing.




January 11th: (Added 01/17/08) Mr. Saunders filed in the Circuit Court a motion to "Inspect Voting Records".




January 14th: (Added 01/17/08) Mr. Rutherford (Mr. Saunders' lawyer) filed notice that he will take depositions from Carter Smith (the Electoral Board's Voting Machine Custodian), Lisa Wooten (Nelson County's Registrar of Voters) and David McBee (Chair of Nelson County's Electoral Board). The depositions will occur at the Lovingston Court House, commencing at 10AM on Tuesday January 22nd.




January 14th: (Added 01/17/08) Chief Judge Updike wrote a letter to Mr. Rutherford (attorney for Mr. Saunders), Mr. Fishwick (attorney for Mr. Johnson) and others in which he notified them that the three-judge court will hold a prehearing conference call with Mr. Rutherford and Mr. Fishwick. (Mr. Ponton and Ms. Allen did not respond to Judge Updike's prior letter.) The call will be conducted on Thursday January 17th at 1PM.




January 17th: (Added 01/17/08) The prehearing conference call, organized by Judge Updike, was held at 1PM. The report that I received afterwards is that the following decisions were made:


January 22nd: (Updated 01/23/08) Discovery meetings were held at the Lovingston courthouse. All major parties and their lawyers were present. They included Mr. Johnson and his lawyer, Mr. Saunders and his lawyer, Mr. McBee (Chair of the Electoral Board) and his lawyer, Carter Smith (Custodian of the voting machines) and Lisa Wooten (Registrar of Voters). (There may have been others present as well.) The meetings were closed to the public. The judges were not present.

Pursuant to orders given by the judges in their prehearing conference call held Thursday January 17th, the paper ballots were examined, but this time with all parties present. Also, depositions were taken by both John Fishwick (lawyer for Mr. Johnson) and Daniel Rutherford (lawyer for Mr. Saunders) from various witnesses.

The examination of the ballots and the depositions of witnesses were conducted in preparation for a hearing that is scheduled for January 30th.




January 22bd: (Added 01/28/08) Mr. Johnson, through his lawyer Mr. Fishwick, subpoenaed, Mr. McBee, Ms. Wooten and Ms. Smythers to testify at the January 30th hearing.




January 24th: (Added 01/28/08) Mr. Johnson finally took his seat on the Board of Supervisors. He attended and participated in their 7:30PM meeting.

Rural Nelson's report for that meeting can be found here. The official BoS minutes are not yet available. When they are published, the link can be found here.




January 25th: (Added 01/28/08) Ms. Smythers, through her lawyer John A. Gibney Jr., filed a motion to quash JDJ's subpoena. Basically her grounds are that Virginia law (§19.2-271) shields Clerks of the Court from being subpoenaed to testify in nearly any matter arising from their official duties.




January 25th: (Added 01/28/08) WVIR TV filed a request that they be allowed to videotape the 30JAN08 hearing. The three-judge court will rule on that request at the start of the hearing.




January 25th: (Added 01/28/08) Mr. Johnson, through his lawyer Mr. Fishwick, filed a combined brief supporting a motion to dismiss and providing his trial brief in the event that the motion is denied.




January 30th: (Added 02/01/08) A three-judge court held a trial to decide whether Mr. Johnson's election to the Supervisors was valid or invalid. I attended that trial, and my report on the proceedings can be found below.




February 7th: (Added 02/08/08) Janet Hunter, Chair of the Nelson County Democratic Committee Wrote a letter to the State Board of Elections to formally complain about the irregularities that have occurred during the course of this election challenge. A copy of that letter can be found here.




April 18th: (Added 04/19/08) Someone from the State Board of Elections left a phone message with Janet Hunter stating that they were investigating this matter and that they would be in tought later.




The Irregularities:

along the way, we believe that the following irregnlarities occurred.

We believe that giving access to the paper ballots to only one side of an election and without the knowledge of and the supervision of the Electoral Board was not only improper but completely defeats the security of the ballot! How can they be trusted after having been unsealed and exposed to such access?


Judge Johnston allowed access to the paper ballots: We believe that each and every one of the above irregularities is in violation of Virginia Law (§24.2-802A).


Mr. Johnson was sworn into office on December 20th. Judge Johnston did not sign his order enjoining Mr. Johnson from taking office until December 21st. We believe that after Mr.Johnson was already sworn into office, the judge did not have the authority to enjoin Mr. Johnson from taking office. Once in office, an office holder can be removed only by impeachment for malfeasance, and then only after exhausting all appeals. Note: as of January 17th, this issue has been resolved in Mr. Johnson's favor. The three-judge court has lifted Judge Johnston's injunction against Mr. Johnson's taking his seat on the Board of Supervisors.


The new allegations in Mr. Saunders' amended complaint all had to do with information that Mr. Saunders learned through his direct examination of the paper ballots. Mr. Saunders examined those ballots prior to his initial complaint. But normally a complaint, once filed, can be amended only when new information comes to light after the filing of the original complaint. Since Mr. Saunders knew of the amended allegations before the initial complaint, the amendment should never had been allowed.


Judge Johnston signed his order without a hearing and without even prior notice to Mr. Johnson. Mr. Johnson had no idea whatsoever of what was going on behind everybody's back!




The Final Decisions (January 30, 2008)

(Added 02/01/08) A three-judge court held a trial to decide whether Mr. Johnson's election to the Supervisors was valid or invalid. I attended that trial, and the following is my report of what went on. This is not a comprehensive transcript. It is my memory of what transpired, and in it I attempt to focus on issues that were key to the judges' final decisions.

Note: (Revised 02/02/08) This was a trial to decide whether or not the election was valid. It was not a recount. Although victory could have been taken away from Mr. Johnson, giving that victory to Mr. Saunders was not a possibility. If the court had found that the election should have been a tie or that Mr. Saunders should have won, then all the court would have done would be to declare the election to be invalid. In that case, a replacement member would have been selected as follows:

  • The remaining members of the BoS would have selected an interim appointee.
  • If the BoS could not decide on an appointee, then the local circuit court judge would make the selection.
  • The local circuit court judge is Judge Gamble. (Judge Gamble is not involved in the current contest.) In the past, Judge Gamble has appointed only people who would promise not to run in the next election.
  • In any case, the appointee would serve only until a special election was held. By statute such a special election would be held at the next general election.


Summary:

Larry Saunders, through his lawyer Daniel Rutherford, presented his case. When he finished, Mr. Johnson, through his lawyer John Fishwick, moved for the case to be dismissed on the grounds that Mr. Sanders had failed to present a valid cause of action.

By unanimous decision, the three judges agreed with Mr. Johnson and dismissed the case.

Because this was an election dispute, and because elections have to reach final decisions quickly, Virginia law does not permit this decision to be appealed. The dismissal is final. Mr. Johnson will continue to be the South District's representative for the remainder of his term.


Background:

The optical scan paper ballots that were cast in Nelson County's South District in November's election have, by now, been examined by hand twice. The first time occurred on December 3rd, and the second on January 22nd. The first examination was permitted by a judicial order (Judge Johnston, now retired), but was conducted only by Mr. Saunders and his lawyer. Neither Mr. Johnson not the County's Electoral Board were either notified or present.

The second examination was again permitted by judicial order, but this time all parties (and their lawyers) were present: Mr. Saunders, Mr. Johnson, Mr. David McBee (the Chair of the Electoral Board) and Ms Lisa Wooten (the Registrar of Voters).

The optical scan machines used in the South District precincts reported a total of 17 undervotes in the BoS race. (An "undervote" is one in which the machine failed to detect any marks in any of the voting ovals for a race.) During this second manual examination, it was alleged that only 11 ballots could be found in which all of the BoS race ovals were all blank. The implication then is that there are 6 more ballots which were marked but whose markings were so partial or so faint that the machine failed to read them. The problem is, there is no way to tell exactly which ballots were the ones that were unread.

During the January 22nd examination, both Mr. Rutherford and Mr. Saunders selected several ballots to be photocopied for use at trial.


Trial Summary:

Mr. Rutherford (for Mr. Saunders) presented his case first. When he was done, Mr. Fishwick (for Mr. Johnson) moved that the case be dismissed, and the judges granted that motion. If the judges has decided to deny the motion, then Mr. Fishwick would have gone on to present Mr. Johnson's defense, but that turned out not to be necessary, and so it never happened.


Mr. Saunders' Case:

Mr. Rutherford (for Mr. Saunders) argued that there existed several ballots that should have been counted that were not counted, and that if they had been counted, then Mr. Johnson would not have won the election. The ballots that Mr. Rutherford wanted considered fell into 4 categories:
Mr. Rutherford put into evidence: Mr. Rutherford did not put into evidence the ten ballots that he said were found (on January 22nd) to be entirely blank.

Mr. Rutherford's assertion was that the missing six undervote ballots had to be among the nine X'd or checkmarked ballots that he submitted to the court. (But he did not know which ones, among the nine, they were.)

Regarding the 10 ballots that Mr. Rutherford submitted into evidence (the 2nd, 3rd, 4th and 5th items listed above), Mr. Fishwick objected to the court accepting them as evidence because it was his contention that the case should be dismissed for various reasons arising prior to the court ever getting to the point of considering the paper ballots themselves. But the court decided to let Mr. Rutherford proceed with using the ballots in his case, but that it would not decide until later in the proceedings whether the ballots were acceptable evidence.


Ms Carwile's Testimony:

[Ms Carwile is the wife of a deployed soldier. Her provisional ballot was rejected by the Electoral Board.]

Ms Carwile testified:
[In the end, the judges never got to the issue of whether or not the missing signature mattered because they decided that the ballot was properly rejected due to the fact that Ms Carwile had been in Nelson County continuously from well before the 29 day exclusion period.]


Ms Wooten's Testimony:

[Ms Lisa Wooten is Nelson County's Registrar of Voters.]

Regarding Ms Carwile's provisional ballot, Ms Wooten testified:
Regarding the undervote ballots: One by one, Mr. Rutherford showed Ms Wooten both the one ballot that was blank (but for a checkmark next to Mr. Saunders' name) and the nine others that had Xs or checkmarks in the voting ovals. Regarding the blank ballot, Ms Wooten said that she believed that the machine would have counted that ballot as an undervote. Regarding the nine other ballots shown her, she testified that she believed that the machines would have counted each of them as votes for the indicated candidates. [She also said that she based this belief on what she had learned during the manual examination on January 22nd, but Mr. Rutherford did not ask her to elaborate.]

Mr. Rutherford asked Ms Wooten if she knew how many blank ballots were found during the manual examination on January 22nd. She said she did not know.


Mr. Smith's Testimony:

[Mr. Carter Smith is the Electoral Board's Custodian of the Voting Machines.]

Mr. Smith testified that subsequent to when he was deposed (January 22nd), he has read the manuals for the voting machines and has learned:
As with Ms Wooten, Mr. Rutherford showed Mr. Smith both the one ballot with empty ovals (but with a checkmark near Mr. Saunders' name) and the nine other ballots with checkmarks or Xs in the voting ovals. With regard to the one ballot with blank ovals, Mr. Smith said that he believed that the machine would have recorded that as an undervote. With regard to the nine other ballots, Mr. Smith said that he did not know whether the machines would have recorded them as votes or undervotes.


Mr. McBee's Testimony:

[Mr. David McBee is the current Chair of the Nelson County Electoral Board.]

Mr. Rutherford asked Mr. McBee if he knew how many blank ballots were found during the manual examination on January 22nd. He said he wasn't sure, but he though it was 11. He then added, "But we may have missed some."

Mr. Fishwick showed Mr. McBee the ballot that was blank but for a checkmark next to Mr. Saunders' name and asked him how he thought the machine would have recorded it. Mr. McBee said that he thought it would have been recorded as an undervote.


At this point, Mr. Rutherford rested his case.




The Motion to Dismiss:

Mr. Fishwick (representing Mr. Johnson) moved that the case be dismissed because the Plaintiff (Mr. Saunders) had not presented sufficient grounds to sustain his complaint. Mr. Fishwick offered several arguments, including the following:

#1 Mr. Fishwick contended that for optical scan tabulators Virginia Law (§24.2-802(D)3) allows the court to order a manual examination of the paper based ballots only if the printed tallies (printed out at the end of the day) were unclear. [This part of the law reads as follows:
3. For optical scan tabulators, the recount officials shall first examine the printout to redetermine the vote. Only if the printout is not clear, or on the request of the court, the recount officials shall rerun all the ballots through a tabulator programmed to count only the votes for the office or issue in question in the recount and to set aside all ballots containing write-in votes, overvotes, and undervotes. {Emphasis added.}]

#2 Mr. Fishwick contented that the Plaintiff's entire case arose from his early [December 3rd] and private [unknown to both Mr. Johnson and the Electoral Board] access to the paper based ballots, and that that access was improper. Therefore no cause of action based on that access should be allowed to go forward.


#3 Mr. Fishwick contended that the Plaintiff's amendment to his initial complaint should not have been permitted for a series of technical reasons. [It is in the amendment that the Plaintiff raises for the first time issues of certain discrepancies between the voting machine reports and what he found when he examined the ballots on December 3rd.]


#4 Mr. Fishwick contended that basically the Plaintiff's contention was that the ballots needed to be hand counted because he believed that several ballots had been miscounted by the machine. (That this belief was bolstered by Plaintiff's examination of the ballots prior to his filing should be disregarded because that examination was improper.) If a simple belief that ballots had been miscounted was allowed to be sufficient basis for contesting an election, then this case would be precedent for allowing every election to be contested, thus forcing judges to get involved in deciding all elections and forcing the hand counting of ballots in those elections.


[Note, the rules in the law for accepting a ballot when hand counted are different than the markings that can be read by machine. A consequence of this is that in every single election, a hand count will always produce totals that are different from machine counts. This occurs because there will always be people who will fill out their ballots using Xs, checkmarks, circles and other marks, sometimes within the voting ovals, sometimes elsewhere. But the machines can only read votes with certainty when they are recorded by blacking in the voting ovals.]


#5 Mr. Fishwick contended that since the trial should not have even gotten to the point of considering the ballots themselves, all of the ballots that Mr. Rutherford had presented during his side of the case should not be allowed into the case as evidence.

[The above arguments are listed in my order, not Mr. Fishwick's.]



There ensued lengthy discussions between the judges and the lawyers. Here are some of the hilights:

- Regarding Mr. Fishwick's first point (#1 above), Chief Judge Updike argued that the law (§24.2-802(D)3) did not limit judges from ordering a manual examination of the ballots to only cases where the printed tallies were unclear. Instead, the law permitted judges to order a manual examination at their discretion regardless of the clarity of the printed tallies. Mr. Fishwick stuck to his contention. [But Judge Updike did not seem convinced.]


- Judge Alden noted that the recount rules set forth in §24.2-802 applied to recounts. She question that those rules would apply to when an election is contested (the current action). The applicable law regarding contested elections is §24.2-803.


- Judge Alden asked Mr. Fishwick: When the reported number of undervotes is greater than the election's margin of victory, then shouldn't that be sufficient grounds for the court to order a manual recount? Mr. Fishwick responded that he did not agree.


- Judge Spencer noted that if manual recounts were allowed simply because a plaintiff believed that machines had miscounted votes, then all elections would be contested. [It would be an unacceptable burden both on judges and on the election process for judges to become involved in so many elections.]


- Judge Updike engaged in a lengthy discussion with Mr. Rutherford regarding the ballots he wanted to submit into evidence:

- Judge Updike noted several times that when it comes to making decisions, judges may consider only information that has been testified to or submitted into evidence. [All information not formally submitted must be disregarded.]


- With respect to Ms Carwile's provisional ballot, Judge Updike noted that no testimony had been given regarding for whom Ms Carwile had voted.


- A considerable part of Judge Updike's discussion with Mr. Rutherford involved the following issue. Mr. Rutherford made several references to "11 blank ballots" [no marks in any of the voting ovals for the BoS race]; however, the only one of those ballots that he had to offer as evidence was the one that also contained a checkmark next to Mr. Saunders' name. Further, Ms Wooten testified that she did not know how many blank ballots were found on January 22nd, and Mr. McBee testified that he thought that 11 blank ballots were found, but "we may have missed some." Further, Mr. Rutherford's own assertion that there were only 11 blank ballots found could not be accepted by the court because he was not a witness. [In fact, Mr. Rutherford would not be allowed to be a witness because he was a lawyer representing one of the parties in the case.] So while there was evidence admitted that the tallies reported 17 undervotes, there was no firm evidence admitted that only 11 undervotes could be clearly identified.


- Mr. Rutherford contended that the allegedly missing six undervotes were amongst the nine X'd and checkmarked ballots that he had offered into evidence. But Ms Wooten had testified that she believed that all of those particular ballots would have been counted by the machine as normal votes, and Mr. Smith testified that he did not know whether any, all or none of those ballots were counted by the machine as normal votes. Mr. Rutherford was unable to obtain any testimony that any of those nine ballots were the missing undervotes. So when Judge Alden asked Mr. Rutherford exactly which of the nine ballots were the undervote ballots, Mr. Rutherford could not say which.

The judges then recessed [briefly as it turned out] to discuss and decide.


The Decisions:

When the judges returned, they made the following announcements:


(1) All of the decisions that the court reached were unanimous.


(2) Judge Updike stated that allowing Mr. Saunders to amend his complaint was proper because doing so met the "ends of justice" exception allowed by the Rules of the Supreme Court of Virginia (§vscr-1:8).


(3) All of the ballots that Mr. Rutherford submitted as evidence were accepted by the court. Mr. Fishwick's objection to the evidence was overruled.


(4) [Since Mr. Rutherford had failed to present any evidence or testimony that identified the alleged missing undervotes, the court proceeded to consider only two disputed votes: Ms Carwile's provisional ballot and the blank ballot with a checkmark next to Mr. Saunders' name.]


(5) Ms Carwile's provisional ballot was properly excluded by the Electoral Board for the reason that Ms Carwile had been present within Nelson County continuously since September 14th, so she was within the County prior to the 29 day exclusion period. So she did not qualify to register on election day because she was not with her deployed husband prior to the election.


(6) Regarding the blank ballot with a checkmark near Mr. Saunders' name, Judge Updike indicated that it was not clear to him whether that was a vote or just a checkmark.


(7) But neither Ms Carwile's vote nor the blank vote mattered because even if they both were accepted and they both were for Mr. Saunders, Mr. Johnson would still win the election because Mr. Saunders needed three new votes, not just two. So Mr. Saunders' complaint was dismissed.



What Now?

  1. Right now, write a letter to the Nelson County Times or to Charlottesville's Daily Progress or to Lynchburg's News Advance expressing your feelings about what is going on in this election. Here are some links:

  2. Joe Dan's legal bills are overwhelming! They will run to the many of THOUSANDS of dollars! Please help! Send a donation to:

      Johnson Legal Fund Trust
      PO Box 25
      Afton, VA 22920


  3. Spread the word! The more people who know about the shenanigans going on here, the less likely it is that they will succeed here (or anywhere else)!


  4. Contact Joe Dan Johnson. His web site is at www.johnsonforsupervisor.org.



Thank You!

Compiled by
Dave Cole
Afton, VA
dbcole@colesoft.com
Last updated: 04/19/08