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17 Votes Separate Candidates In Virginia Attorney General’s Race

Virginia Flag Map

The gap between Mark Obenshain (R) and Mark Herring (D) in the fight to be Virginia’s next Attorney General could not be any closer:

As the dust settled on election night, a few things seemed clear about the race for Virginia attorney general: It was too close to call, the numbers would change during a statewide canvass and the loser would probably ask for a recount.

What was then a standard-issue tight contest between state Sens. Mark D. Obenshain (R-Harrisonburg) and Mark R. Herring (D-Loudoun) has turned into something more dramatic and uncertain. A frenetic weekend search for the right numbers — much of it taking place at the Fairfax County Government Center — produced thousands of uncounted votes and an even closer race.

As of Sunday night, Obenshain led by 17 votes out of more than 2.2 million cast, according to the State Board of Elections Web site.

At times Friday, Obenshain led by more than 1,200 votes, but the totals have changed regularly since Tuesday. Some of the shift was due to a handful of mistakes attributed to human or machine error. Some of it was the result of the standard canvassing process that takes place after every election. Both types of adjustment are typical, and no one suspects wrongdoing. But in a typical year, these additions and subtractions don’t affect the outcome.

This year is different. The contest for attorney general is so close that the normal process of fixing errors and counting provisional ballots has caused the results tally to narrow dramatically in an already close race.

And the results are likely to continue shifting, with provisional ballots unreported in one large locality, Fairfax County, and possibly incomplete in another, Richmond. No matter what, the race — with a margin smaller than 0.001 percent of the vote — is almost certainly headed for a recount that won’t be decided before December.

With the margin this close, it’s obvious that Tuesday saw a significant degree of ticket splitting in the Commonwealth of Virginia. The margin of victory in the McAuliffe-Cuccinelli, now roughly about 2.5%, is closer than the margin in the Lt. Governor’s race between State Senator Ralph Northam and E.W. Jackson Jr, which presently stands at just under 11%. And, then, we’ve got the Attorney General’s race. Quite obviously, Tuesday saw a lot of of Cuccinelli and Sarvis voters who voted for Northam over Jackson in the Lt. Governor’s race and, apparently, a lot of Sarvis voters who voted for Obsenshain who voted for Obsenshain, not to mention McAuliffe voters who did the same. This isn’t entirely unusual in Virginia, but it’s rather unique to see the races for these three seats vary this much.

Getting back to the vote count, the entire state faces a deadline on Tuesday when all provisional and other ballots must be counted and reported to the State Board of Elections, so in some sense we will get some sense of finality by the close of business tomorrow. Many observers who are following the process closely expect that, by the point, Democratic candidate Mark Herring will end up with a very narrow lead. That estimate, which I tend to agree with, is simply dictated by the fact that the two areas where most of the revised numbers are coming from, Fairax and Richmond, are likely to be very helpful to him. In the end, it’s not likely to matter because the result will be so close that whichever candidate happens to end up on the losing side of this race is going to be asking for a recount. Fortunately, Virginia’s recount procedure is fairly easy to understand, although it’s going to take some time for a final resolution to be determined:

First, there is no such thing as an automatic recount. Under Virginia law, a loser in a tight race may request a recount within 10 days after the state Board of Elections certifies the results. That won’t happen until Nov. 25 — after each county and city canvasses and certifies its own results.

For a recount to occur, the margin of victory must be less than one percentage point of the total vote. The candidate must pay for the recount unless the margin is less than 0.5 percent. In the attorney general’s race, the margin is way less than that, so if the results hold after certification, the state would pay for the recount.

A three judge panel of the Richmond Circuit Court oversees the efforts and irons out the specifics, and a final recount could take weeks.

Indeed, when this occurred eight years ago in the Attorney General’s race between Bob McDonnell and Creigh Deeds, the final winner was not declared until very late in December. That recount resulted in Bob McDonnell winning by a 360 vote margin. By all accounts, it seems fairly clear that the final result here will be much, much closer.

The political consequences of the recount will be significant, though. If Herring wins, then the Democrats will hold all the statewide offices in the state for the first time since Richard Nixon was President. More importantly, the GOP will be left without an apparent heir apparent for the Governor’s race in 2017, leaving opening the possibility that outgoing Lt. Governor Bill Bolling will start building the political support necessary for a comeback. If Obenshain wins, then he’ll likely become the GOP’s heir apparent which, given the fact that he has a record of social conservatism not very different from Ken Cuccinelli’s, may not be the best thing for the RPV going forward. So, there are some pretty huge political stakes going into the next six weeks and the inevitable coming recount.

In the meantime, there are several top-notch political pundits following the vote count very closely over on Twitter, if you’re so inclined, you can follow their take on what’s going on via this Twitter List.

Update:  This isn’t reflected on the SBOE website, probably because today is a holiday for the State Government as well as Federal Government, but based on the reports on the above-linked Twitter list it now appears that Democrat Mark Herring is ahead by about 100-120 votes in the vote count based on the provisional ballots that have been accepted. Counting of those ballots is continuing, though, and will continue tomorrow. Given that the majority of the outstanding provisional ballots come from Fairfax County and the City of Richmond, both areas where Democrats as a whole did well this year, it seems likely they will end up adding to Herring’s lead even if only marginally. However the final count turns out, have no doubt that there will be a recount here.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. C. Clavin says:

    Maybe I missed where you discussed Republicans changing the rules to benefit themselves.

    Like or Dislike: Thumb up 6 Thumb down 4

  2. OzarkHillbilly says:

    This is why voter ID is a big, BIG issue. Denying votes to people on the basis of mythical ‘in person voter fraud’ is criminal.

    Like or Dislike: Thumb up 13 Thumb down 2

  3. WR says:

    Fortunately the Supreme Court has already settled this issue back in 2000 – in case of a close race, the constition demands the seat go to the Republican.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 2

  4. C. Clavin says:

    @WR:
    +1

    Like or Dislike: Thumb up 1 Thumb down 2

  5. Franklin says:

    @WR: Yes I know you’re joking, but they specifically said their ruling was not meant to be a precedent!

    Like or Dislike: Thumb up 3 Thumb down 0

  6. jib10 says:

    I assume repubs control the State Board of Elections which means the repub will win this. In any election when the results are within the margin of error, who ever controls the process for counting wins the election. That is really what happened in Florida in 2000 when the election was within the margin of error and W’s damn brother ran the state. It is what happened in WA state gov in 2004 when dems controlled the count and Gregoire won by 133 votes out of 2.74 million total votes.

    There are errors in any measurement, any process, any count. You get a different number every time you count and that does not even deal with the incorrectly marked ballots or soiled ballots or whatever the reason that you cannot be sure who they voted for. By definition when your within the margin of error it is impossible to know who actually won. So whoever does the counting gets to pick the winner.

    Like or Dislike: Thumb up 1 Thumb down 1

  7. KM says:

    And this is why you always vote. Always. People say “oh it’s just one vote, it doesn’t matter” when they can’t be arsed to go or are “protesting” by withholding it. Guess what? It matters!!

    As the Demotivator on my wall states, ” A few harmless flakes working together can unleash an avalanche of destruction.” (adapted from “No snowflake in an avalanche ever feels responsible.” – Stanislaw Jerzy Lec) A ton of people who sit at home and don’t participate in the democratic process cause a mess for everyone else to deal with.

    Like or Dislike: Thumb up 6 Thumb down 0

  8. Stonetools says:

    I think the Democrats will pull this out because the provisional ballots to be counted are mainly in Democratic areas, but it’s going to be a “damned close run thing.”

    Like or Dislike: Thumb up 1 Thumb down 0

  9. KM says:

    @WR: Yes I know you’re joking, but they specifically said their ruling was not meant to be a precedent!

    And unless there is some enforceable way to legally prevent that, it already is. That’s like saying, “Kids, don’t do this Cool Thing I’m currently doing. I don’t want to be a Bad Example!”

    Like or Dislike: Thumb up 4 Thumb down 1

  10. ernieyeball says:

    @KM: A ton of people who sit at home and don’t participate in the democratic process cause a mess for everyone else to deal with.

    Let’s not even consider that the outcome of this election might be the same if the turnout was 100%.
    Everyone should vote even if the candidates on the ballot are morally repugnant to the voter.
    Personal ethics be damned.

    Like or Dislike: Thumb up 1 Thumb down 6

  11. WR says:

    @KM: I love that Lec quote. I’d never seen it before…

    Like or Dislike: Thumb up 3 Thumb down 0

  12. KM says:

    @ernieyeball:

    Everyone should vote even if the candidates on the ballot are morally repugnant to the voter.
    Personal ethics be damned.

    Then write in Jesus. Or Santa. Or Satan. Or whomever you feel is appropriate. There are always choices. Your ethics are not limited to who is listed on the ballot – it will most likely amount to nothing but you still participated.

    Razor thin votes like this are not because the total population is so divided. It’s because the amount of registered voters who got the hell up and went are so sharply divided. I forgot who (James perhaps?) said they didn’t vote in this election because they didn’t like either candidate. That’s one less tally and one less contribution.

    Like or Dislike: Thumb up 4 Thumb down 0

  13. labman57 says:

    Looks like it’s time for another round of post-election rule changes.

    Perhaps the GOP should simply cut to the chase and declare that the only votes that count are those cast by registered Republicans.

    Like or Dislike: Thumb up 3 Thumb down 1

  14. Rafer Janders says:

    @KM:

    And this is why you always vote. Always. People say “oh it’s just one vote, it doesn’t matter” when they can’t be arsed to go or are “protesting” by withholding it. Guess what? It matters!!

    This is the same election that responsible citizen James Joyner said he skipped so he could go running, right?

    Like or Dislike: Thumb up 6 Thumb down 1

  15. ernieyeball says:

    @KM: Then write in Jesus. Or Santa. Or Satan… Your ethics are not limited to who is listed on the ballot

    Please do not preach to me about ethics. If I want a sermon I will go to church.

    Like or Dislike: Thumb up 0 Thumb down 7

  16. grumpy realist says:

    I think we get to see which one of the candidates is less obscure than the other. When you get down to this level in an election, most people are usually going “Bob who?”

    Like or Dislike: Thumb up 1 Thumb down 0

  17. @jib10:

    The matter won’t be decided by the SBOE, but by a panel of three judges.

    Like or Dislike: Thumb up 1 Thumb down 1

  18. jib10 says:

    @Doug Mataconis: Not really (but I may be wrong on this, states can have some weird rules).

    The judges just validate the election. The SBOE will say “We did our count and this is the guy who won”. The judges then say “Yep your right”. This is basically what happened in Florida with the supreme court and in WA with the state judges and basically everywhere when ever we get in the margin of error. Like a challenge in football, the key is the ruling on the field. If repubs control the SBOE and it rules the repub won and 2 out of the 3 judges are repubs, then the repub will win.

    And thats fine. It is within the margin of error meaning we really dont know who won. We have to pick some one and whatever party the majority of the people picking belong to will win the election.

    And for all your people saying ‘This is why you vote, even one vote counts’. Your Wrong! One vote does not matter because they can not count that precisely. They make way more than 1 error every time they count. So your one vote is lost in the wash. Once elections get this close, we really do not know who wins.

    You vote because it is your civic duty to vote. But your vote is one of several millions and that is exactly how much it counts, 1/??millionths.

    Like or Dislike: Thumb up 0 Thumb down 0

  19. KM says:

    @ernieyeball:

    How am I preaching? You pointed out that some voters will find all candidates listed morally repugnant to the voter and thus will use that as an excuse to not vote. I called bullshit and pointed out you can write in whomever you want and thus vote for your chosen worthy instead of the given selection and retain your ethical integrity.

    Excuses are like armpits: everyone has one and they all stink.

    Like or Dislike: Thumb up 4 Thumb down 1

  20. ernieyeball says:

    @KM:..some voters will find all candidates listed morally repugnant to the voter and thus will use that as an excuse a good reason to not vote.

    …you can write in whomever you want and thus vote for your chosen worthy instead of the given selection and retain your ethical integrity.

    You do not get to dictate to me how I retain my ethical integrity.
    Since Jesus or Santa or Satan are not viable candidates it would be dishonest of me to vote for them.

    Like or Dislike: Thumb up 1 Thumb down 6

  21. Rob in CT says:

    Were both Attorney General candidates morally repugnant to you, Ernie? We’re not talking about Cuccinelli v. McAuliffe here.

    Like or Dislike: Thumb up 3 Thumb down 0

  22. David M says:

    Latest updates indicate a likely lead for Herring (D) of just over 100 votes.

    Like or Dislike: Thumb up 0 Thumb down 0

  23. ernieyeball says:

    @Rob in CT: Were both Attorney General candidates morally repugnant to you, Ernie? We’re not talking about Cuccinelli v. McAuliffe here.

    I live in and am registered to vote in Jackson County, Illinois.
    The issue here is not what I think of candidates in The Old Dominion State. I am trying to figure out why people think that increased voter turnout will change the results of elections.
    I am also curious about how citizens want to bring this about.

    Like or Dislike: Thumb up 1 Thumb down 4

  24. KM says:

    @ernieyeball:

    You do not get to dictate to me how I retain my ethical integrity.

    Nobody’s doing that. I’m pointing out you are using “ethical integrity” as an excuse. There are plenty of live, real world people you could write in -some of them in politics that are qualified for the job. Honestly, you just don’t seem to want to take the effort and are just complaining for complaining sake. I’ve mentioned how one can still due one’s civic duty if they hate all candidates. Sitting on ground in a huff is not ethical nor doing one’s duty – it’s just a cop-out. But hey, its American and you’re free to do that – you’re choice. Not trying to be offensive, just pointing out the logical flaw in your reasoning.

    The issue here is not what I think of candidates in The Old Dominion State. I am trying to figure out why people think that increased voter turnout will change the results of elections.

    1,000 people are registered to vote. 75% (R) and 25% (D). Only 200 actually vote – 150 (D) and 125 (R) with 25 unaffiliated write-ins. (D) wins in a (R)-dominated district. If more people voted, say 75 (D), 125 (R) and 5 more write-ins, (R) 250-225 wins. Simplified but true.

    You seem to believe that numbers are static, that nothing will change despite the increase of bodies included in the pool. That’s just insane. Maybe that same guy will win with 10% participation or 62%, but we don’t know that. Why do you believe that elections are so static that there would be no fluctuation is the voter population increased?

    Like or Dislike: Thumb up 4 Thumb down 1

  25. ernieyeball says:

    @KM: You keep addressing me as if I have not voted in elections. Well you’re right. I did not vote in the Virginia elections because I live in Illinois.

    That’s just insane.

    This is an ad hominem attack.

    …but we don’t know that.

    I agree that you do not know.

    You seem to believe that numbers are static,..Why do you believe that elections are so static that there would be no fluctuation is the voter population increased?

    Now you are attributing to me things I have not said.

    Like or Dislike: Thumb up 0 Thumb down 6

  26. KM says:

    @erineyeball:

    You said you are trying to figure out why people think increased voter turnout will change election results (as evidenced by your own quote). I asked why you think the numbers would be static so the results wouldn’t change if the population did. What about that statement isn’t attributable to you?

    Of course we don’t know for certain until something happens. You don’t know either. But basic mathematics favors the flux idea – the odds of the exact same numerical result with a larger pop are astronomical. Vegas won’t give you those odds so drop the smug “we don’t know”. Most voters=more chances for either candidate.

    Also, I said that’s insane, not you. Reading comprehension is key. You’re hunting for offense at this point…..

    Like or Dislike: Thumb up 5 Thumb down 0

  27. ernieyeball says:

    I never said: “…numbers would be static so the results wouldn’t change if the population did.”

    Maybe that same guy will win with 10% participation or 62%, but we don’t know that.

    Apparently it is acceptable for you to use the words “we don’t know” but when I do it is “smug”.
    Another ad hominem attack.

    Like or Dislike: Thumb up 0 Thumb down 4

  28. ernieyeball says:

    Honestly, you just don’t seem to want to take the effort and are just complaining for complaining sake.

    You don’t even know if I voted or not yet you compose negative characterizations of me.

    So how do you propose to increase voter turnout and make the USA a better place?

    Like or Dislike: Thumb up 1 Thumb down 4

  29. ernieyeball says:

    Reading comprehension is key.

    This is a not so subtle attack on my intelligence.
    I guess the M in KM stands for Mensa!

    Like or Dislike: Thumb up 0 Thumb down 3

  30. Neil Hudelson says:

    @ernieyeball:

    Another ad hominem attack.

    I do not think that phrase means what you think it means.

    Like or Dislike: Thumb up 5 Thumb down 0

  31. jd says:

    @Franklin: “was not meant to be a precedent!”

    Ha. When I first saw that, I thought you were saying a certain person was not meant to be a president.

    Like or Dislike: Thumb up 0 Thumb down 0

  32. ernieyeball says:

    @Neil Hudelson: So tell me what I am thinking.

    Like or Dislike: Thumb up 0 Thumb down 4

  33. Neil Hudelson says:

    “pointing out you were wrong?”

    Like or Dislike: Thumb up 4 Thumb down 0

  34. ernieyeball says:

    …how do you propose to increase voter turnout and make the USA a better place?

    Like or Dislike: Thumb up 0 Thumb down 0

  35. KM says:

    @ernieyeball:

    I guess the M in KM stands for Mensa!

    And that’s an ad hominem attack. Wow, I thought you were really opposed to those given this thread and the fact that you used the words in at least two posts……

    Like or Dislike: Thumb up 0 Thumb down 0