State Sen. Mark Herring launched something of a pre-emptive strike Monday, ahead of next week’s certification of the election results in the attorney general’s race. The Democrat currently leads by a scant 164 votes over Republican state Sen. Mark Obenshain. In a conference call with reporters, an election lawyer working for Herring said the small margin is deceptive, arguing Virginia’s rules governing recounts make it all but impossible for Obenshain to turn the tide. The lawyer, Marc Elias, said it’s similarly unlikely that the vote total will budge much between now and the Nov. 25 vote certification. Elias, who lives in Northern Virginia and works at a Washington, D.C., firm, represented U.S. Sen. Al Franken of Minnesota in a 2008 recount that changed the outcome of a close election there. Elias said Virginia election law provides less possibility for votes to change in a recount than Minnesota’s law. Specifically, he said results from touchscreen voting machines, which are used in much of the state, typically don’t change during a recount.
Elias rebutted an argument Obenshain made at a press conference last week that a State Board of Election canvass of the county and city vote totals could lead to a major vote shift. That, he said, is because social media sites shone a bright spotlight on the individual cities and counties as they went about confirming their election night totals.
“The amount of scrutiny I’ve seen at the county level is unlike anything I’ve ever seen,” Elias said. “Anything is possible,” he said, but “I think it’s extremely unlikely.”
And when it comes to a recount which could follow, Elias said Virginia law leaves little room for Obenshain to make up ground. Recounts, he said, “don’t tend to change the results.” Nationally, he said, “there have been three in recent times where the results have changed, and that’s against a backdrop of hundreds and hundreds of elections.”