Pending Virginia budget would prevent audit of presidential election results

Virginia routinely performs mathematical audits of elections to ensure there were no major malfunctions with ballots or the machines that scan and count them.

An audit of the state’s 2020 presidential contest confirmed President Joe Biden’s lopsided victory in Virginia over former President Donald Trump with near-total statistical certainty. But under new language included in the budget passed by the Democratic General Assembly, there would be no such audit of the 2024 presidential contest.

Though the term “audit” is often invoked by conservative activists to mean an intensive investigation into results they find suspicious, state law requires “risk-limiting audits” to be performed for some elections to verify the accuracy of voting equipment. The process involves hand counting only enough ballots to obtain “strong statistical evidence that the reported outcome is correct,” according to Virginia law.

Del. Mark Sickles, D-Fairfax, said the budget language both clarifies the intent of a 2022 bill that tweaked the process and ensures an audit won’t inhibit Virginia’s ability to certify its presidential outcome in accordance with the federal Electoral College timeline.

“People are worried about any excuse someone might make for not certifying the election,” Sickles said in an interview. “After what happened last time, people are kind of sensitive about what things people might use to try tying things up in litigation.”

The approved amendment in the budget specifies that “a risk-limiting audit of a presidential election or an election for the nomination of candidates for the office of president shall not be conducted.”

Previous guidance from the Virginia Department of Elections had indicated that in 2024, a statewide audit would be performed for either the presidential contest or Virginia’s U.S. Senate race.

If the budget language stands, election officials would most likely perform an audit of the race between U.S. Sen. Tim Kaine, D-Va., and his to-be-determined GOP challenger, as well as a randomly selected U.S. House of Representatives election.

State law doesn’t require risk-limiting audits for presidential elections, instead leaving it to the discretion of state election officials to choose which contests to audit. Applying the process to statewide races can help officials comply with a rule requiring every local election office to participate in an audit “at least once every five years.”

The audit of Virginia’s 2020 presidential results happened after the results were certified, meaning it didn’t affect Virginia’s ability to officially report Biden’s victory. In a major difference, the 2022 law requires audits to be completed before certification of the outcome.

Tram Nguyen, a voting rights advocate with left-leaning New Virginia Majority, said the budget item ensures the audit process doesn’t “end up messing up the presidential timeline.”

“I think risk-limiting audits are great,” Nguyen said. “They are a best practice across the country.”

The budget item dealing with audits also extends the post-election timeline for local electoral boards to certify results. It gives officials 10 days, three more than existing law, to check the validity of outstanding ballots and verify local results to the state.

Two GOP lawmakers who signed off on the budget — Senate Minority Leader Ryan McDougle, R-Hanover and Sen. Todd Pillion, R-Abingdon — wrote on the document that they objected to the amendment dealing with elections. Efforts to reach McDougle and the Senate GOP were unsuccessful.

The budget is currently under review by Gov. Glenn Youngkin, who made audits a key piece of his “election integrity” focus while campaigning in 2021. Former Gov. Terry Mcauliffe attacked Youngkin over that position, saying the emphasis on audits was a nod to conspiracy theories about the 2020 election being stolen from Trump. Youngkin insisted he was only professing support for the standard, risk-limiting audits Virginia has required since 2018.

In a statement Wednesday, Youngkin’s office said it’s looking over the budget but emphasized that Youngkin “has been committed to restoring Virginians’ faith in our elections and improving the voting processes.”

“That means using all the tools at our disposal to ensure the integrity of our elections,” said Youngkin spokesman Christian Martinez.

Despite persistent Republican criticism that Virginia’s election system isn’t secure enough, there have been no examples of widespread voter fraud in recent years.

However, the 2020 election did produce a significant counting error in Prince William County, which caused Trump to get 2,327 more votes than he should have and subtracted 1,648 votes from Biden’s total.

That wasn’t enough to swing the outcome of any contests, officials said, but some saw it as an alarming example of an election error going undetected until long after the incorrect vote totals had been certified. It wasn’t until this year that Prince William officials revealed the full scope of the problem, a delay largely caused by the criminal prosecution of a former county election official that ended with all charges being dropped.

Virginia has different procedures for recounts of close races when ballot irregularities could potentially have a greater impact on election results. Court-supervised recounts can only be called if an election is decided by a margin of less than 1% of total votes cast for the winner and runner-up.

The recount process mostly involves hand-counting ballots that couldn’t be read by scanning machines and having a court resolve disputes about whether a ballot can or can’t be counted for a particular candidate.

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This article first appeared on Virginia Mercury and is republished here with permission. Virginia Mercury is part of States Newsroom, a network of news bureaus supported by grants and a coalition of donors as a 501c(3) public charity. Virginia Mercury maintains editorial independence.