Canvass meetings and certification in Virginia are ministerial or pro forma. This means that Electoral Boards at the local level, as well as the State Board, have no discretion on whether to conduct the canvass process and very little discretion about how to conduct the canvass itself. See Va. Code Ann. § 24.2-671 (stating each electoral board “shall meet;” “shall open the results . . .and ascertain from the returns the total votes in the county or city;” and “for offices for which the electoral board issues the certificate of election, the result so ascertained, signed and attested, shall be conclusive.” See also Va. Code Ann. § 24.2-679 (stating the State Board “shall meet” . . . to ascertain the results of the November election;” “shall examine the certified abstracts;” and “shall certify . . .and sign the statements.”) Additionally, were members of the Electoral Board to ignore the law and attempt to slow down, manipulate, or stop the canvass process, the State Board has two methods by which to intervene to correct the process; such a failure to do a statutorily required duty could open them up to criminal liability.
First, if the State Board of Elections does not receive the Abstract of Votes from the Electoral Board within seven days of an election, the Board has the power and is required by law to send law enforcement to the local jurisdiction to retrieve the abstract. Va. Code Ann. § 24.2-678. This provision requires the official in charge of the abstract to “make out and deliver” it to the law enforcement official who will “deliver the abstract to the State Board without delay.” Va. Code Ann. § 24.2-678. Therefore, if the Electoral Board were to refuse to complete, sign off on, or deliver the canvass, and were to further refuse the demand of law enforcement to do so under this provision, it would be incumbent upon the State Board to get an injunction requiring their performance or to proceed with removal proceedings. See Va. Code Ann. § 24.2-234.
For most races, the State Board reviews each Abstract of Votes prepared by the local Electoral Board in order to prepare a statement of votes which serves as the final record for certifying the winner of that election. As a part of this process, if the Electoral Board makes a mistake during the canvass or if it were to willfully attempt to manipulate it, the State Board has the power and is required by law to order the Electoral Board to make corrections to its Abstract of Votes. Va. Code Ann. § 24.2-675. Therefore, it is unlikely that even the majority of an Electoral Board operating in concert could successfully manipulate or stop the canvass and certification process.
A writ of mandamus may also be available as a possible remedy should election officials refuse to count or certify some or all of the vote in Virginia. See Moore v. Pullem, 150 Va. 174, 142 S.E. 415 (1928) (holding that a writ of mandamus was a proper method to compel the performance of an election official's imperative duty to count and certify votes properly caste under the state's absentee voting law, but which officials refused to open, process or include in the official count). However, if there is an alternative statutory scheme that properly addresses the alleged misconduct or failure to act, then that is the preferred remedy and a writ of mandamus is unlikely to be available. This issue was addressed in Hall v. Stuart, where there was a factual controversy over whether ballots were counted or not; the Supreme Court of Virginia held that no such remedy was available because the issue "went beyond the returns and raised questions tantamount to fraud or mistake" which could be addressed using other statutory remedies. 198 Va. 315, 94 S.E.2d 284 (1956).
A refusal to canvass, certify, or otherwise complete required duties under the election code could open up election officials to criminal liability. For example, it is a Class 1 misdemeanor for any officer of election, member of an Electoral Board, or other election official to “will[fully] neglect” a mandatory duty. Va. Code Ann. § 24.2-1001(A). Should corruption be involved, then such an official’s action or inaction becomes a Class 5 felony. Va. Code Ann. § 24.2-1001(B).
Additionally, a willful “false material statement” or false entry on “any [required] statement form or report” is considered election fraud and a Class 5 felony. Therefore, should election officials go further and try to substitute their own opinion for the will of the voters during the canvass or certification process, any manipulation or falsification of reports would also be a crime under the election code. Va. Code Ann. § 24.2-1016.
Complaints or allegations “concerning unlawful conduct” under the election code are to be filed with the Commonwealth Attorney for the city or county where the conduct allegedly occurred. Va. Code Ann. § 24.2-1019.