Democrat Mark R. Herring continued to widen his lead over Republican Mark D. Obenshain on the second day of the statewide recount in the race for attorney general. As ballots were being counted Tuesday, Herring was 866 votes ahead of Obenshain by 7 p.m., said Herring’s legal counsel Marc Elias. “We continue to gain margin at a steady pace, and we expect to continue to do so through the rest of the recount,” Elias told reporters Tuesday. “We become more confident as this recount progresses.” Less than 120 ballots had been challenged by partisan election officials to be sent to the Richmond Circuit Court, where a three-judge panel will begin reviewing them Thursday. Of 133 localities statewide, 98 had finished their tallies by 6 p.m. Tuesday.
State Sen. Mark D. Obenshain (R) conceded the race for Virginia attorney general to Democrat Mark R. Herring on Wednesday, bringing the election to a belated end and giving Democrats a sweep of statewide offices — but throwing control of the state Senate into question. The move allowed Herring to claim victory for the third time since Nov. 5 in a contest that on election night was the closest statewide race in Virginia history. It also spared a three-judge panel in Richmond from having to continue slogging through more than 100 ballots that one side or the other had challenged. And for the first time since Election Day, speculation in Virginia political circles shifted from who would succeed Attorney General Ken Cuccinelli II (R) to how differently the new attorney general would lead. Herring spent much of the campaign promising not to run the state’s law firm like Cuccinelli, a social conservative who waged high-profile battles against a climate scientist, “Obamacare” and universities with policies that protect gay people from discrimination.
The most extensive recount in modern Virginia political history will involve tens of thousands of people statewide to determine the state’s next attorney general. The recount begins Monday in Fairfax County and the cities of Alexandria and Chesapeake before moving to every jurisdiction in the state on Tuesday and Wednesday. Those three localities get a head start because of the extensive hand counting of ballots entailed in their recount or simply the sheer number of ballots and machines to be checked, which is the case in Fairfax County. A three-judge recount court will convene on Thursday in Richmond to rule on challenged ballots that emerge from the re-tabulation. Democrat Mark Herring should know by Friday if his 165-vote edge holds or if Republican Mark Obenshain has picked up enough votes to surpass his fellow state senator —or closed it sufficiently to take it one step further. Obenshain’s camp has signaled the recount might not be the candidate’s last gasp. They could play a rare, little-used card, taking the race to the General Assembly as a contested election and letting the Republican-majority body decide the race or call for a new election.
Editorials: Fairfax shows transparency done right in Virginia Attorney General recount | Open Virginia Law
Earlier this year, Fairfax County Circuit Court Clerk John Frey began making court opinions freely available on his office’s website, for which the Virginia Coalition for Open Government awarded Frey an open government award at its annual conference. This week, the Fairfax County Electoral Board again has made Fairfax a model for transparency and open government. If you’re at all interested in Virginia state government lately, you know that the race to be the next Virginia Attorney General is not yet over. Democrat Mark Herring was certified as the winner by a mere 165 votes out of the 2.2 million cast, but lawyers for Republican Mark Obenshain are vigorously prosecuting a recount in Richmond Circuit Court. The actual recount is set to occur across the state next week. Fairfax, owing to its large portion of Virginia’s population and its critical support for Herring, has been a central focus on election night and since. Notwithstanding the fact that two out of the three Fairfax Electoral Board members are Republican, including Twitter sensation Brian W. Schoeneman, unfounded conspiracy theories swirled online as Fairfax officials conducted the post-election canvass, identifying votes that helped Herring over the top. (Vote corrections in Richmond, another locale where two out of three Board members are Republicans, actually gave Herring the lead, but Fairfax closed the gap significantly, was indispensable to Herring overall, and has been the focus of Republican election lawyers.)
Virginia: Republican campaign for attorney general raises new questions about Fairfax ballots | The Washington Post
Republican Mark D. Obenshain’s campaign for attorney general raised new questions Wednesday about how Fairfax County ballots were handled while also dismissing the idea that he has already decided to ask the General Assembly to step into the race. Earlier this week, Obenshain’s attorney raised the possibility that after next week’s recount, the closest statewide election in Virginia history might wind up before the legislature, which has the power to decide elections or call a new one under a little-known law. Va. Republicans raise new questions about Fairfax ballots Contesting the election through the General Assembly would be an extraordinary step, one that political observers said has never been taken in a statewide race, at least not in modern Virginia history.
The Lynchburg region cast just over 3 percent of the votes that will be counted — again — next week to determine who will be Virginia’s next attorney general. Each of the localities gave Republican Mark Obenshain a healthy majority over Democrat Mark Herring, ranging from 53 percent of votes cast in Lynchburg to 75 percent in Bedford and Campbell counties. Obenshain, who lost by 165 votes out of 2.2 million cast in the Nov. 5 election, asked for a recount. It will be conducted Monday and Tuesday in each city and county, at local-government expense. Voter registrars said the recount will take roughly half a day in the four counties surrounding Lynchburg, because they use touch-screen voting machines that recorded vote totals on printed tapes. Those tapes can be tabulated again in just a few hours, according to the registrars in Amherst, Appomattox, Bedford and Campbell counties. But in the Hill City, where two-thirds of the voters chose to use paper ballots, election officials are preparing for an all-day job requiring them to run 13,000 paper ballots through a scanning machine again. A few hundred ballots, mostly absentee ballots sent by mail, will be counted by hand.
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.
A three-judge panel has set the rules for next week’s statewide recount of the Attorney General’s election between Democrat Mark Herring and Republican Mark Obenshain. With a historically narrow 165-vote margin separating the two men, the details were strategically important to the candidates’ lawyers-who spent hours on Monday arguing their positions at a Richmond hearing. The recount will include examination of thousands of undervoted ballots-to determine if no votes were cast for that office or if the machines did not read them the first time. The judges ordered Alexandria and Chesapeake to begin one day early since they must hand-count thousands of paper ballots. They also gave the campaigns broad access to pollbooks, as requested by Obenshain attorney William Hurd. “There’re some other materials, too, that the court said we could obtain involving absentee ballots, provisional ballots, incidents that occurred on Election Day that are recorded. It’s a big victory. It means we don’t have to sit there and go through the documents in the office of the clerk, but the copies will be made and made available to us.”
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.
In the upcoming recount of Virginia’s attorney general election results, Chesapeake’s 61,000 paper ballots must be tallied manually, the state Board of Elections has told city officials. The reason, according to Chesapeake General Registar William “Al” Spradlin, is that the city’s optical scanning equipment cannot segregate ballots that were undervoted – didn’t vote in all races – or overvoted – voted for too many candidates. Instructions from a three-judge panel overseeing the recount indicated those ballots must be singled out for examination, Spradlin said. Democrat Mark Herring was certified with a victory of 165 votes out of 2.2 million cast in the Nov. 5 election, close enough for his opponent, Republican Mark Obenshain, to request the recount.
Once again the election is over, and not over. The razor-thin campaign to be Virginia’s next attorney general has entered the recount phase. This is the time for both sides to put politics aside and strive for a scrupulously fair process, regardless of the result. On Election Night, Republican Mark Obenshain clung to a slight lead. After all returns were in, Democrat Mark Herring was on top by fewer than 14 dozen votes out of more than 2 million. He has been certified the winner. Obenshain, as expected — and as is wholly appropriate to the situation — has requested a recount. A Herring victory would give the Democrats a sweep in the three statewide offices. An Obenshain win would salvage something of the season for Republicans. It seems unlikely the certified results will be overturned, but not impossible. Therefore, both sides will be very motivated to count their own votes and challenge the opponent’s. But instead of this, every vote should be judged on one criterion: Did that vote adhere to all of the pertinent rules?
Democrat Mark Herring’s 165-vote win over Republican Mark Obenshain in the close race for attorney general is headed to a recount Dec. 17 and 18, with Fairfax County getting a one-day head start. Richmond Circuit Judge Beverly W. Snukals scheduled the recount at a hearing Wednesday in which attorneys for both candidates debated the ground rules for what is expected to be the state’s most extensive recount ever in the closest statewide race in modern Virginia political history. Snukals also scheduled a tentative Dec. 19 date for a recount court to rule on disputed votes in the recount. Snukals agreed to allow Fairfax County to begin its recount Dec. 16, with the remaining localities joining in the following two days. Fairfax County is the state’s most populous and uses a variety of voting machines that could extend its recount beyond two days. Donald Palmer, secretary of the State Board of Elections, attended the nearly four-hour hearing to assist Snukals and attorneys for Obenshain and Herring navigate election law and various schedules to ensure local elections officials can conduct the recount. Asked outside court whether he was confident in an accurate recount, Palmer said, “Absolutely.”
Every state voting machine used in the Nov. 5 election is in lockdown mode — including those the Roanoke Voter Registration office would like to use in January’s special election. The Roanoke Voter Registration Office is putting on a special election Jan. 7 but doesn’t have any machines to record the vote — at least at the moment. Thanks to the impending recount in the squeaker of an election for Virginia attorney general, every voting machine in the state used in the Nov. 5 election is in lockdown mode to protect the results. Republican Mark Obenshain requested the recount after the state board of elections certified a 165-vote victory for Democrat Mark Herring.
With a preliminary hearing scheduled for Wednesday, a three-judge panel has been named to oversee the recount for Virginia attorney general. Republican Mark Obenshain is seeking a recount of the Nov. 5 general election in his pitched race with Democrat Mark Herring, who leads him by 165 votes. Obenshain’s office says besides the previously designated Richmond Circuit Judge Beverly W. Snukals, the chief justice of the Supreme Court of Virginia has named two other jurists to the so-called recount court.
Virginia: Judge with Obenshain family ties recuses self from recount in attorney general race | The Washington Post
The Richmond judge who would normally preside over the recount in the tight Virginia attorney general race has recused himself, possibly because of his close ties to the family of state Sen. Mark Obenshain. Under Virginia law, the special court that will oversee the recount of the contest between Obenshain (R-Harrisonburg) and state Sen. Mark Herring (D-Loudoun) — which Herring won by 165 votes, according to the results certified by the State Board of Elections — should be led by the chief judge of the Richmond Circuit Court. But Bradley B. Cavedo, holder of that title, recused himself from the recount case last week, according to Ed Jewett, the court’s chief deputy clerk.
The election of state Sen. Ralph S. Northam, D-Norfolk, as Virginia’s next lieutenant governor gave Democrats reason to cheer by providing what is potentially a critical tie-breaking vote in an evenly divided Virginia Senate. But the apparent election of Sen. Mark Herring, D-Loudoun, as attorney general — and the time involved in a recount challenging his razor-thin victory over Sen. Mark Obenshain, R-Harrisonburg — raises the distinct possibility that winning the statewide offices could put Senate Democrats at a numerical disadvantage when the General Assembly convenes on Jan. 8. Currently the Virginia Senate has 20 Democrats and 20 Republicans. Ties on most issues are broken by the vote of the lieutenant governor, who presides over the chamber. For the past eight years, that has been the prerogative of Lt. Gov. Bill Bolling, a Republican.
Lawyers for the losing Republican candidate in a tight race for Virginia attorney general filed a petition in Richmond Circuit Court on Wednesday for a recount of the votes. In results certified on Monday by the Virginia State Board of Elections, out of 2.2 million votes cast in the November 5 election, only 165 separated Republican Mark Obenshain from Democrat Mark Herring, who has declared victory. Overseeing the recount will be a three-judge panel consisting of the chief judge of the Richmond Circuit Court and two other judges named by the chief judge of the Virginia Supreme Court. … Obenshain’s team seems to be particularly interested in examining what are called “under votes,” in which a person votes for a lesser number of candidates than he is entitled to vote for on the ballot.
Republican state Sen. Mark Obenshain, R-Harrisonburg, will seek a recount of the historically close Virginia attorney general’s race in which Democratic Sen. Mark Herring of Loudoun County was certified the winner by 165 votes out of more than 2.2 million votes cast. The recount request, announced by the Obenshain campaign late Tuesday afternoon, follows Monday’s certification of Herring as the winner by the State Board of Elections. Earlier in the day, Herring announced co-chairs for his inaugural committee. “It is within Senator Obenshain’s right to pursue electoral victory to an ultimate conclusion beyond the original count, canvass and certification,” Herring said in a news release. “His tactics, however, will not impede our efforts to build the finest team to serve all Virginians in the Office of Attorney General or prepare for the 2014 legislative session.”
Virginia: Despite certification of Democrat’s narrow win, recount appears likely in Attorney General race | Associated Press
The State Board of Elections on Monday confirmed Democrat Mark Herring’s victory over Republican Mark Obenshain in a historically close race for attorney general that appears headed to a recount. While the elections board unanimously certified Herring’s 165-vote edge, the board’s Republican chairman did so with reservations because of concerns about what he called inconsistencies by localities tallying the vote, an observation that is likely to add fuel to Obenshain’s expected decision to seek a recount. He has 10 days to do so. As he has done in the past, Herring declared himself Virginia’s next attorney general in the closest statewide race in modern Virginia history. The narrow margin for Herring was unchanged from the canvass done by local elections officials nearly two weeks ago. Provisional ballots and tabulation errors that were corrected in localities including Richmond and Fairfax County added to Herring’s lead after the Nov. 5 election.
Virginia: Election official questions Attorney General tally, Republican has hope in recount | Examiner
A law championed by Democrat Creigh Deeds could give Republican Mark Obenshain the tools to erase Mark Herring’s 165-vote margin in Virgina’s attorney general’s race, Watchdog.org reported. Deeds, who lost the AG contest to Bob McDonnell in 2005 by 360 votes, subsequently authored legislation requiring all optical scan ballots be re-run in the event of a recount, and that ballots containing write-in votes, undervotes or overvotes be hand-counted. In 2005, the ballots were only re-run in precincts that had identified problems. “This is new territory for Virginia and a margin well within the range in which recounts have changed the vote lead,” Obenshain spokesman Paul Logan said.
All the votes from the November 5 election have been tabulated, and the Virginia attorney general race is as close as they come. Democrat Mark Herring holds a slim 164-vote lead over his Republican opponent, Mark Obenshain. The close count has teed up a likely recount for next month, and the Republican candidate has hinted at an unusual legal strategy: basing a lawsuit on Bush v. Gore, the controversial Supreme Court decision that ended the 2000 presidential election in George W. Bush’s favor. The Supreme Court usually prides itself on respecting the past while keeping an eye toward future legal precedent. But the court trod lightly when it intervened in 2000. The five conservative justices may have handed the election to Bush, but they tried to ensure that their decision would lack wider ramifications. “Our consideration is limited to the present circumstances,” read the majority opinion in Bush v. Gore, “for the problem of equal protection in election processes generally presents many complexities.” The conservative majority wanted to put a stop to the Florida recount, but they hoped their ruling—which extended the 14th Amendment’s equal protection clause to argue that different standards cannot be used to count votes from different counties—wouldn’t set precedent in future cases. For a time the justices got their wish. But the supposed one-time logic of the controversial decision has begun to gain acceptance in the legal community—particularly among campaign lawyers in contentious elections.
An attorney for Democrat Mark Herring said Monday he expects Herring to retain his slim lead over Republican Mark Obenshain in the race for Virginia attorney general. “I don’t expect a significant change,” said Washington attorney Marc Elias, a veteran of election recounts, during a teleconference with reporters. “I expect the attorney general-elect (Herring) — whether there is a recount or not — will prevail.” The final certification by the State Board of Elections is set for Monday. As of now, Herring has a 164-vote lead over Obenshain. That lead comes after more than 2.2 million Virginia voters cast their ballots in the attorney general’s race on Nov. 5. Elias said there have been only three recent statewide recounts that have changed the result “against the backdrop of hundreds and hundreds.” The attorney describes the recent canvass of votes in Virginia cities and counties as one that “is painstaking to make sure all votes are counted.”
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.
With Mark Herring considered Virginia’s attorney general-elect, pending a recount, Democrats in Loudoun and Fairfax counties have announced they will hold a Firehouse Primary Saturday to choose the party’s nominee to fill the 33rd District Senate seat. Two candidates have filed to run for the nomination, Leesburg attorney Jennifer T. Wexton and Herndon Town Councilmember Sheila A. Olem. With all the votes reported from the local registrar’s offices throughout the state, Herring, a Loudoun Democrat, pulled ahead of Republican Mark Obenshain last week in the attorney general’s race by a narrow margin of 164 votes out of the more than 2.2 million cast.
The minuscule margin of votes between Virginia’s two attorney general candidates has brought renewed attention to a relatively new aspect of voting in Virginia: the provisional ballot. There were about 3,170 provisional votes cast in the attorney general’s race on Election Day, out of 2.2 million total votes. The difference between the two candidates is currently 164 votes. Before 2012, voters that poll workers could not find on poll books could vote if they signed an affidavit that they were who they said they were and were registered to vote. But lawmakers felt that wasn’t secure enough. The provisional ballot, created by state law in 2012, is how people vote if they show up at the polls and have no identification, or if there is some doubt about whether they are registered to vote or registered at the precinct where they have come to vote.
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.
Voters decide who wins an election, right? Not necessarily. In fact, we may see partisan operatives determine the winner in the razor-thin race for Virginia’s attorney general. After the initial count, Democrat Mark Herring is ahead of Republican Mark Obenshain by a mere 164 votes out of 2.2 million. If Herring remains on top after a recount and any federal court litigation, then the next step is for the Republican candidate to initiate an “election contest” with the Virginia General Assembly. This election contest is a procedure in which the losing candidate disputes the certified results. States have varying ways to resolve these controversies — and most use a process that allows partisans to determine the ultimate winner. There are better solutions, however, than allowing a partisan legislature to decide. We can minimize ideology, actual or perceived, by creating a bipartisan entity that would resolve a post-election battle. Yet in Virginia an election contest goes to the General Assembly sitting as a joint session, with the speaker of the House of Delegates presiding. Republicans now control a majority of the Virginia General Assembly seats — and have been pushing through a socially conservative agenda.
A day after he took to Twitter last week to question the vote-count in the Virginia attorney general race, an email from a top state official popped into David Wasserman’s inbox. Wasserman, a political analyst with encyclopedic knowledge of Virginia’s voting patterns, figured he was in for a tirade. In the aftermath of the Nov. 5 election, he had been combing through the state’s ballot count and posting Twitter messages about problems and discrepancies. “I was expecting them to say, ‘Stop denigrating our electoral process.’ Instead they said, ‘I want to thank you for the public service you’re doing’,” Wasserman, the House Editor at the Washington-based nonpartisan Cook Political Report, said in an interview. Virginia’s cliffhanger of an attorney general’s race is the first in which Twitter, the micro-blogging social media platform, has played a prominent part in the vote certification, and it may offer a model for how close elections play out in the age of social networking.
The difference between a vote cast and a vote counted was nowhere clearer than in the Virginia race for attorney general. A week after Election Day, Democrat state Senator Mark Herring proved victorious over Republican state Senator Mark Obenshain by a margin of 164 votes out of over 2.2 million cast, according to the Virginia State Board of Elections unofficial online tally. Localities had until 11:59 p.m. Tuesday to report numbers to the state. … Episodes occurred in Fairfax and Richmond counties, two of the most populous in the state. Among other election observers, Michael McDonald, an Associate Professor of government and politics at George Mason University, found that absentee turnout from Fairfax didn’t match his prediction. While Brian W. Schoeneman, a Republican member of the Fairfax Electoral Board, protested through Twitter that all had been counted, upon further review, state election officials found that a tabulation machine had broken and the votes on a replacement machine weren’t counted. Around 3,000 votes were then reviewed, and a large majority went to Herring, who at that point was losing in the unofficial tally. … In Richmond, state officials failed to enter more than 200 votes, throwing the aforementioned 17-vote lead for Obenshain to the razor-slim 117-vote margin for Herring. In this case, officials realized their mistake well before it hit social media.
Virginia: Herring, Obenshain dig in for a fight in tight attorney general race as the lawyers move in | The Washington Post
A week after Election Day, there may be as many lawyers involved in the race for Virginia attorney general as there are votes separating the two candidates. As of Wednesday, state Sen. Mark R. Herring (D-Loudoun) led state Sen. Mark D. Obenshain (R-Harrisonburg) by 164 votes out of more than 2.2 million cast, according to the State Board of Elections, a margin that would make it the closest statewide contest in modern Virginia history. The two candidates are digging in for a battle, and if the post-hanging-chads era has taught us anything, it’s that a race this tight can’t be over yet. The lawyers will make sure of that. Obenshain’s strategy is to concede nothing. Statewide vote totals won’t be certified until Nov. 25, and then the trailing candidate will probably ask for a recount. So on Wednesday, both Obenshain and Herring announced transition teams, and Obenshain said it was premature to discuss legal action or a recount. “I don’t know who is going to move into the attorney general’s office in January, and despite what Mark Herring says, he doesn’t know either,” Obenshain said at a Richmond news conference. “It is important for us to allow the State Board of Elections and our statutory process to work, to make sure every legitimate vote is fairly counted. And I’m committed to seeing that process through.”