Winner by three votes to join Nelson County board

Aaron Lee / Lynchburg News & Advance
Published: January 21, 2008

LOVINGSTON - A panel of judges has lifted an injunction that prevented the top vote getter in a contested county election from taking office earlier this month.

The order came on Jan. 17, more than two months after an election in which Joe Dan Johnson beat Larry Saunders by three votes (324 to 321) to win the Board of Supervisors' South District seat.

Saunders, who asked for the recount, saw Johnson's win confirmed in December when a panel of judges reviewed receipts from electronic voting machines.

However, because of the injunction, Johnson, who was sworn in on Dec. 20, did not take his seat at the board's first meeting of the year on Jan. 9. Johnson said he plans to take his seat at the board's Thursday meeting.

In the time since the voting receipts certified Johnson's win, Saunders, with his lawyer, Daniel Rutherford, had filed an "election contest" that calls for judges to review the paper ballots scanned by the voting machines.

Rutherford has said the machines that scanned the paper ballots may not have registered some of the selections, or may have cast over-votes in come cases.

Rutherford also said he believes one of the provisional ballots not counted the day after the election was a valid vote for Saunders.

Provisional votes are ones cast on paper ballots by people who live in a voting district but are not registered to vote there. If a voter is verified as living in the district, then their vote is counted.

The election contest will be heard on Jan. 30 in Nelson Circuit Court. The decision of the three-judge panel cannot be appealed.

In December, Rutherford and Saunders - with a circuit court clerk present and under the verbal order of a judge no longer associated with the case - were allowed to look at the paper ballots cast.

Johnson said allowing review of the ballots violated Virginia law and that neither he, nor the electoral board, were notified of the ballots' review.

Had he been given permission to look at the ballots, Johnson said he would have declined because the electronic voting machines' tally is legit.

"I don't think we should look at everyone's ballots," Johnson said.

Rutherford said he was given permission to review the ballots and that the review was supervised.

"They never looked at a single ballot during the recount," Rutherford said of the judges verifying the electronic voting machine receipts in December. "It's more a retabulation."

According to a Web site maintained by Dave Cole, secretary for the Nelson County Democrats, the group plans to file a complaint "at an appropriate time in the near future" with the Virginia State Board of Elections that challenges the paper ballots' review.