A contest can end one of four ways: either the apparently unsuccessful candidate (statutorily referred to as the “contestant”) is declared to have been elected; the apparently successful candidate (statutorily referred to as the “contestee”) is declared to have been elected; the election is declared void and a special election is called to fill the vacancy; or, if the appropriate house finds that a tie vote has occurred, the winner is selected “by lot.” Va. Code Ann. § 24.2-803(B),(H). How those endpoints are arrived at varies somewhat by office.
An unsuccessful candidate for the General Assembly or certain statewide offices may contest the results of an election on the following grounds: 1) “objections to the eligibility of the contestee (i.e., the winning candidate) based on specific allegations,” 2) “objections to the conduct or results of the election accompanied by specific allegations which, if proven true, would have a probable impact on the outcome of the election, or” 3) “both.” Va. Code Ann. §§ 24.2-803(B), 804, 807.
Exceptions Virginia law does not provide for contests of general elections to the U.S. Senate or U.S. House of Representatives. See Va. Code Ann. §§ 24.2-803 – 814. If a losing candidate for one of those offices wishes to contest the results of their election they must take it up directly with the respective bodies. U.S. Const. Art. I, § 5; “GREB Ch 15” at 13.
The Committee on Privileges and Elections will report its findings and recommendation to the appropriate house (either State House of Delegates or State Senate) for action. Va. Code Ann. § 24.2-803(G)-(H). For statewide contests under Va. Code § 24.2-804 the final determination will be made by the General Assembly, with both houses sitting in a joint special session. Va. Code Ann. § 24.2-804.
After receiving the Committee on Privileges and Elections’ findings and recommendations, the appropriate house or General Assembly may (1) confirm the contestee’s election, (2) declare the contestant the winner, or (3) declare the election void and order a new election. Va. Code Ann. § 24.2-803(H). If that house finds the vote to be a tie, the State Board of Elections will make a determination by lot, with no chance of a recount. Va. Code Ann. §§ 24.2-803(H), 674.
For General Assembly contests, the contestant must post a $100 bond per precinct “contained in whole or in part in the district being contested” when filing the election contest notice. Va. Code Ann. § 24.2-803(B). For statewide contests, this is lowered to $10 per precinct. “GREB Ch 15” at 14. Va. Code Ann. § 24.2-804. For all other races, including county and local races, the contestant is not required to post bond when filing contests. “GREB Ch 15” at 14.
If the contest is unsuccessful, the contestant forfeits the bond up to the actual and documented costs of the contestee, including but not limited to reasonable attorneys’ fees and expert witnesses’ fees. Va. Code Ann. § 24.2-803(B).
Where the costs exceed the bond, the house may impose additional liability up to total costs, if it finds by a two-thirds majority vote that the contest was brought in bad faith. Va. Code Ann. § 24.2-803(B),(H).