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.
“History shows that contests in the legislature are generally more politicized than if they’re adjudicated in the judiciary,” says Edward Foley, a professor at Moritz College of Law. That applies to both parties–but it’s Republicans who have the majority in the Virginia General Assembly. The Virginia state senate is evenly split, but Republicans have the majority in the state house. A spokesperson for Obenshain didn’t respond when asked directly if, after exhausting all other avenues, Obenshain would pursue an election contest.
The Virginia attorney general’s race already has a potential justification–the controversy over nearly 500 provisional ballots in Fairfax County. Voters cast provisional ballots if there’s some question about their eligibility to vote. The idea is to ensure that every legitimate vote is counted, rather than turning voters away if say, they are mistakenly not on the rolls. Elections rarely come down to provisional ballots, but they’re also rarely this close. Both candidates announced Wednesday that they were moving ahead with appointing transition teams.