A razor-thin margin in the Virginia attorney general’s race could ultimately put the decision about a winner before the General Assembly — but the rarely used strategy of contesting an election comes with its own political consequences, analysts say. With Democrat Mark R. Herring leading Republican Mark D. Obenshain by 0.007 percent of the total statewide votes, whichever candidate is trailing when the state certifies the election results Nov. 25 is all but certain to call for a recount. And depending on the results, the candidates could conceivably contest the election. Virginia law gives the General Assembly wide latitude to act after hearing a candidate’s case. Lawmakers have the authority to reject the appeal, to order a new election or even to declare a winner — whether it is the candidate who held the lead or the candidate who contested the election. But the bar for success is extremely high. The law states that a candidate must detail “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.”
“That’s a heavy burden,” said former Virginia Attorney General Anthony F. Troy. “A contest, you have to demonstrate not that a vote was cast that shouldn’t have been cast, but the results — the outcome — would have been different.”
GOP lawyers appeared to be laying the groundwork for a possible claim Tuesday as Fairfax County tallied its provisional ballots. Attorney M. Miller Baker called the electoral board’s approval of such ballots an “extraordinary, unprecedented move and said that, while the board’s efforts to get as many voters included in the final certification was laudable, it raised questions about whether the state was providing equal protection for voters.
“Fairfax voters are receiving more-lenient, more-preferential treatment than other voters in Virginia,” he said. “All Virginia voters are accorded the same treatment. That is not happening here today.”
At a news conference this week, Mr. Obenshain refused to speculate on whether he would call for a recount, and when asked about action beyond that he said it was “premature” to state intentions.