State Sen. Mark Obenshain, R-Harrisonburg, is asking the special court overseeing the recount of the attorney general’s race to hold off counting a large number of ballots from Fairfax County because measures to keep them secure after the election were not followed. Obenshain is seeking a recount of the election he lost to Democrat Mark Herring by 165 votes out of more than 2.2 million cast. The court did not make a decision on the request but took it under advisement, said William Hurd, Obenshain’s lead lawyer. His request involves part of some 115 boxes of election material out of the 869 now in the custody of the clerk of the Fairfax County Circuit Court. He asked the court to set those ballots aside and not recount them for now until the court decides whether the ballots were secure. “It was a gross violation of security,” Hurd said. “Now we’ve got to figure out what did happen and whether these were the same ballots that were cast on Election Day,” he said. In the motion, Obenshain’s lawyers said that counted and blank ballots “remained unprotected by the legally required security measures for nearly a month after the election.”
According to an exhibit attached to their motion, of the 115 boxes, five were delivered to the court clerk on Dec. 5, three on Nov. 26 and 10 on Nov. 20. A total of 97 were delivered on Nov. 13, the day after the county Electoral Board completed its count and the day the ballots were due. Obenshain’s lawyers said they could not tell if the boxes delivered on Nov. 13 arrived before the noon deadline that day.
The motion said other localities may also have failed to follow security procedures, since it has so far heard from only about a third of the state’s circuit court clerks. Fairfax County Electoral Board secretary Brian Schoeneman said all the ballots involved were held in the board’s warehouse.