Even if Democrat Mark Herring ends up with more votes than his Republican rival Mark Obenshain in the tightly contested Virginia attorney general’s race, he could still lose. Herring is currently ahead of Obenshain by a follicle–the current official count states that Herring has 164 more votes than Obenshain out of more than two million cast. A recount is all but guaranteed and litigation seems likely. But even if after the dust clears Herring remains in the lead, under Virginia law, Obenshain could contest the result in the Republican dominated Virginia legislature, which could declare Obenshain the winner or declare the office vacant and order a new election. “If they can find a hook to demonstrate some sort of irregularity, then there’s nothing to prevent them from saying our guy wins,” says Joshua Douglas, an election law expert and professor at the University of Kentucky College of Law. “There’s no rules here, besides outside political forces and public scrutiny.” An election contest is a specific post-election procedure for disputing the official outcome of an election. Different states have different rules for election contests–some put them in the hands of the courts, others in the hands of the legislature. Obenshain couldn’t simply contest the election out of the blue. He’d have to argue that some sort of irregularity affected the result. Still, Virginia law is relatively vague in explaining what would justify an election contest, and historical precedent suggests that co-partisans in the legislature are unlikely to reach a decision that hurts their candidate.
Ohio: Complicated process for counting provisional ballots could decide the presidency | cleveland.com
After 7:30 p.m. today, it’s no longer about which candidate you voted for. It’s about which votes get counted. If today’s presidential election in Ohio is too close to call, the state’s complicated process for counting provisional ballots will likely face national scrutiny. The process will play out slowly and painstakingly over the next couple weeks, and in the end, Republican Secretary of State Jon Husted ultimately could be the person who decides which provisional ballots must be counted and which will be tossed. “That will get dicey,” said Edward Foley, director of Election Law @ Moritz, a program at the Ohio State University’s Moritz College of Law. “That just shows a structural weakness in our system.”
Ohio: Provisional ballots could keep Ohio’s presidential outcome in doubt for days after election | cleveland.com
As the presidential race narrows in Ohio, the Buckeye State runs the risk of preventing the United States from calling a winner for days after the Nov. 6 election. A wild card in declaring a winner on Election Night could be thousands provisional ballots. Provisionals are given to voters when their eligibility is in question, often because of address changes or discrepancies. Election boards hold the ballots 10 days to determine eligibility. “If it’s a really tight race, we could be in a position where we don’t know [the winner] until provisional ballots are counted,” said Edward Foley, director of Election Law @ Moritz, a program at the Ohio State University Moritz College of Law. “If Ohio is held up, and Ohio is essential to know who won, then the presidency is going to get held up.”