Gov. Bob McDonnell on Tuesday called speculation about a General Assembly contest in the attorney general race before the conclusion of the pending recount “premature,” adding that he has yet to see evidence that would call for resolving the race in the legislature. “To get to that level where you essentially have the legislature make a decision as to who the winner is, there would have to be evidence that the credibility of the election was called into question in some way that created a lack of confidence among the citizens,” McDonnell said in a radio interview with WNIS Norfolk. “I think we are a long way away from that.” Republican Mark D. Obenshain initiated the recount in what is considered the closest race in modern Virginia history after a final statewide tally had him trailing Democrat Mark R. Herring by just 165 votes — a margin of 0.007 percent of 2.2 million votes cast. Obenshain has not said whether he is considering contesting the election in the General Assembly if the recount does not sway the result in his favor, but his legal team has dropped several hints. And on Monday, Obenshain’s attorney William H. Hurd for the first time openly raised this issue before the recount court in Richmond.
McDonnell — who in the 2005 attorney general recount prevailed over Democrat Creigh Deeds by 360 votes — said that next week’s tally will provide more clarity. “We are just going to have to wait and see what happens with this and see whether in the recount there is anything uncovered that would suggest a legislative contest would be appropriate,” the governor said, adding that contesting the attorney general election “has not been done in modern history.”
The last time there was a contest was in 1979 over a state Senate seat in a district embracing parts of Norfolk and Virginia Beach. But there is no record of such contest in a race for statewide office in recent history.
In a contest, a majority vote of the 140-member General Assembly would decide the winner for attorney general. Currently, there are 87 Republican legislators.
It is not clear whether a contest would find a GOP majority, if Obenshain decided to go that route. Some Republicans are skeptical of the so-called “nuclear option” because Democrats would almost certainly accuse Obenshain of stealing the election.