The lawyer representing Republican Mark D. Obenshain in the pending statewide recount in the attorney general race on Monday for the first time openly raised the issue of contesting the election in the General Assembly if the tally does not sway the result in the Republican’s favor. During a hearing in Richmond, William H. Hurd, head of Obenshain’s legal team, told the three judges who will oversee the recount that it is “critically important” for his team to get full access to data from electronic poll books because Dec. 23 marks the deadline to challenge the election results. The court previously set Dec. 17-18 for the statewide recount, giving Fairfax County a one-day head start. The three-judge panel will review any challenged ballots on Dec. 19, leaving a candidate only three days to announce a contest – a rarely used provision in state law. Obenshain requested the recount in what is regarded as the closest race in modern Virginia history after his opponent, Democrat Mark R. Herring, maintained a lead of just 165 votes of more than 2.2 million votes cast – that’s a margin of just 0.007 percent.
If he loses the recount, Obenshain could ask a joint session of the General Assembly — which is dominated by Republicans — to reverse the results. Under state law, grounds for a contest include 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.”
In an interview after the hearing, Hurd did not say whether Obenshain would pursue this option, adding that such speculation is based on “the unsubstantiated assumption” that the Republican would lose the recount.
But observers see Hurd’s request to obtain electronic copies of poll books as a sign that a contest is not off the table. Poll books play no role in a recount but could become an important tool in identifying electoral irregularities, which would be the basis for a contest.