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Democrat Mark Herring Leads Virginia Attorney General’s Race by 163 Votes

Mark Herring Mark Obenshain

With all provisional ballots from Virginia’s election last week now counted, Democratic nominee Mark Herring appears to have a 163 vote lead over Republican Mark Obenshain, thus making this the closest statewide race in Virginia history:

State Sen. Mark R. Herring padded his still-narrow lead over state Sen. Mark D. Obenshain on Tuesday night in the race for Virginia attorney general, giving the Democrat an apparent 163-vote advantage before the results of the contest are certified.

The Fairfax County Electoral Board finished reviewing provisional ballots – mostly cast by people who did not have ID or went to the wrong polling place – and added 160 votes to Herring’s (Loudoun) total and 103 votes to the Republican’s. Herring already led on the State Board of Elections Web site by 106 votes.

The additional 57-vote margin from Fairfax was expected to give Herring a statewide lead of 163 votes out of more than 2.2 million cast – barring any last-minute changes from other localities, which had until 11:59 pm Tuesday to submit their numbers to the state election board.

A recount appears all but certain after the statewide results are certified Nov. 25, and the Obenshain campaign made clear that it considers the race far from over. “We owe it to the people of Virginia to make sure we get it right, and that every legitimate vote is counted and subject to uniform rules,” Obenshain (Harrisonburg) said in a statement.

Herring, by contrast, treated his victory as assured in a campaign statement.

“Voters in Virginia have spoken, their voices have been heard and I am honored to have won their votes and their trust to become Virginia’s next Attorney General,” Herring said. “Over the course of the past week, a thorough and extensive process has ensured that every vote has been tallied and accounted for.”

The margins in the race have fluctuated since the polls closed a week ago. Obenshain’s narrow lead on election night disappeared and then grew again to more than 1,200 votes.

Herring took the lead after Fairfax County found that more than 3,000 votes had not been properly counted on election night and Richmond discovered that a voting machine’s results had not been included in its tallies.

Republicans said Tuesday night that they were unhappy with the way Fairfax had handled the 493 provisional ballots cast there. Fairfax gave voters who wanted to appear in person to argue for the validity of their ballots until 1 p.m. Tuesday to do so. Other jurisdictions had observed a Friday deadline.

Republican attorney Miller Baker, who had been observing the screening of provisional votes, formally objected to the results before the Fairfax Electoral Board voted Tuesday. He said the equal-protection rights of other provisional voters were violated because voters in Fairfax County had more time to testify to the legitimacy of their ballots.

“These in-person interviews have made a difference,” Baker said. “Voters in Bedford, Richmond, Charlottesville and Danville were not given the same opportunity.”

The next step in this process comes by November 25th, the deadline by which the State Board of Elections must certify the election results. At that point, the losing candidate, presumably Obenshain, will have the right to request a recount and, since the margin is so close, it will be a recount paid for at taxpayer expense. Based on history, though, it seems unlikely that a recount will change the outcome of the race significantly. When Virginia had its last statewide recount in 2005, for example, Bob McDonnell entered the recount leading by 323 votes and ended up netting an additional 37 votes to win by 360 votes. Obenshain would need to net some five times that amount in order to win even by a razor thin margin.

This is why the highlighted portion of the blockquote above is crucial. Based on my understanding of how recount procedures work, it does not appear that Republicans will be able to call the legitimacy of the counting of provisional ballots into question during the recount. To do that, other options would have to be pursued. One, obviously would be  separate litigation ruling on the question of whether the Fairfax County procedures did in fact deviate from the norms established by the State Board of Elections, or whether the differences in how provisional ballots may have been counted in different parts of the state violated the Equal Protection rights of voters. The other is one that would come after a recount that, presumably, would declare Herring the winner and would involve Obenshain formally contesting the results of the election to the Virginia General Assembly. If that occurs, the rules that would govern such a contest are set forth here and here, and the final authority on who the winner of the Attorney General’s race would be a Republican dominated state legislature. The partisan rancor that would then ensue is easy to see from a mile away.

So, stay tuned, because this one isn’t over quite yet.

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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:

    Not bad considering Republicans changed the rules…post-election…to favor themselves.
    It’s gotten to the point that Republicans can’t even cheat competently.

    Like or Dislike: Thumb up 14 Thumb down 5

  2. No, they actually didn’t change the rules.

    Like or Dislike: Thumb up 3 Thumb down 7

  3. C. Clavin says:

    Right…that water you’re carrying weighs 8# per gallon.
    Arms tired?

    Like or Dislike: Thumb up 8 Thumb down 5

  4. gVOR08 says:

    @Doug Mataconis: you’re an attorney, and a Virginian, and paying a whole lot more attention to this than I am, so I’d defer to your opinion. But some people seem to think the Republicans changed the rules http://electionlawblog.org/?p=56609 It’s also my understanding that the Fairfax Cty board, 2 Rs and 1 D, decided, given the rules change, to exercise discretion granted by pre-existing statute to extend the time for appeals. Sure looks to me like the GOPs changed the rules for partisan gain, and will now use their own change as grounds for protest.

    But I think we all knew last week that if the GOP lost they’d use every means, fair and foul, to fight it out.

    Highly-rated. Helpful or Unhelpful: Thumb up 17 Thumb down 1

  5. OzarkHillbilly says:

    He said the equal-protection rights of other provisional voters were violated because voters in Fairfax County had more time to testify to the legitimacy of their ballots.

    Translation: “The wrong people were allowed to have their votes count.”

    Like or Dislike: Thumb up 14 Thumb down 3

  6. OzarkHillbilly says:

    From @gVOR08: s link:

    The Board of Elections says it is issuing this directive to insure that there is uniformity across the state in how provisional ballots are handled. But it appears the directive came out after most of the provisional ballots (outside of Democratic Fairfax and Arlington counties) have already been counted—and it is not clear if the other counties used uniform standards in counting provisional ballots.

    Pretty damning Doug.

    Like or Dislike: Thumb up 12 Thumb down 3

  7. jib10 says:

    @gVOR08:

    But I think we all knew last week that if the GOP lost they’d use every means, fair and foul, to fight it out.

    True but to be fair, so would the dems if they had control. Although the repubs have sure been much more nasty about this than dems lately, refusing to deal with the winners even after the election is long over.

    I have fully stated my cynical view of power politics in close elections and expect the repub to win this race once all the votes have been “properly” counted.

    There is another close race that I am also watching, Seattle city council position 2. Sawant, a real living, breathing occupy wall street socialist (as opposed to the mythical Kenyan socialist) is currently leading by 41 votes out of 160000. Statistically this is not as close an election as Virginia AD but the dems actually have a power base in Virginia even if they are outnumbered in the election count. There is no power base anywhere for socialist. If Sawant wins, I may have to moderate my cynicism.

    Like or Dislike: Thumb up 2 Thumb down 2

  8. JWH says:

    Don’t call it yet. His current lead is just a red Herring.

    Like or Dislike: Thumb up 6 Thumb down 1

  9. ernieyeball says:

    @JWH: Someone get the hook!

    http://www.youtube.com/watch?v=53VUs8dlUt4

    Like or Dislike: Thumb up 0 Thumb down 0

  10. Mu says:

    The margin is less than 0.01%. Most statisticians tell you that’s in the random noise of an operation of that size.

    Like or Dislike: Thumb up 3 Thumb down 1

  11. PJ says:

    Yet another example why it’s not important to vote…

    Like or Dislike: Thumb up 2 Thumb down 0

  12. OzarkHillbilly says:

    @JWH: That hurt.

    Like or Dislike: Thumb up 2 Thumb down 0

  13. jib10 says:

    @Mu: Exactly. We will never know who really won this race, we will only know who gets declared the winner.

    I do not know what the margin of error in an election in Virginia is but .01% would be 220 votes. We are in the realm of mistakes in the voting rolls and mis-marked ballots and damaged ballots and yes, even lost or misplaced ballots (which can be magically found at just the right time).

    Like or Dislike: Thumb up 1 Thumb down 0

  14. KM says:

    Obenshain, will have the right to request a refund and, since the margin is so close, it will be a refund paid for at taxpayer expense.

    I know this is a typo but really, it just describes current politics to a T. All about the money….

    Like or Dislike: Thumb up 4 Thumb down 1

  15. OzarkHillbilly says:

    @OzarkHillbilly: Hee hee. I really have to laugh at some of the down voters around here. I quote from a link that gVORo8 posted. I get 2 thumbs down. He gets none. My crime is what… Reading the linked article? Or making it harder for you to ignore what it says?

    Like or Dislike: Thumb up 3 Thumb down 0

  16. @gVOR08:

    I get the argument being made in that link, but the real question is what the proper procedure for dealing with provisional ballots was, and there was some question over whether Fairfax’s initial decision to allow legal representatives to appear instead of voters was proper. Under the code as I read it, voters had to appear in person. and that appears to be how other counties (most of whom had far, far fewer provisional ballots) were handling the matter.

    In the end, though, it’s not at all clear that this clarification from the SBOE had any impact on the outcome of the race.

    Like or Dislike: Thumb up 3 Thumb down 1

  17. OzarkHillbilly says:

    @KM: You noticed that too?

    Like or Dislike: Thumb up 1 Thumb down 0

  18. C. Clavin says:

    @Doug Mataconis:
    I think that there’s some “fog of war” confusion to this…for sure.
    I don’t think the intention of Cucinelli’s Office is unclear at all.

    Like or Dislike: Thumb up 3 Thumb down 2

  19. rodney dill says:

    @OzarkHillbilly:

    That hurt.

    …It’ll leave a Mark.

    Like or Dislike: Thumb up 3 Thumb down 0

  20. gVOR08 says:

    @Doug Mataconis:
    http://www.wtop.com/120/3501230/Provisional-ballot-voters-face-obstacles
    At least as this is being reported, it would seem to hang on how other counties handled provisional ballots, whether they required in person interviews. Given that this appears to have been timed to primarily affect Fairfax County, I’m sure you’ll understand some skepticism about the motives behind the order.

    Like or Dislike: Thumb up 9 Thumb down 1

  21. JohnMcC says:

    My old english teacher’s admonition that if you can’t write clearly you leave considerable doubt as to whether you can think clearly just makes me want to reach through this modern flat screen with a large red pen whenever I see composition like this: “…the losing candidate…will have the right to request a refund…a refund at taxpayer expense….”

    Questions left unanswered by waving one’s hand and chanting about recounts and special legislative questions: What is the breakdown of the Va Legislature that will meet on the second Wednesday of January? I see the Delegates are greater than 2/3ds Repub. Is there reason to believe a Dem can win there? Is there recourse to the Va Supreme Court if not?

    And: What is the autonomy given to the Va AG by the State Constitution? I seem to recall that Mr Cuccinelli had wide latitude to sue the University of Va for access to Dr Mann’s papers and to sue Chairman Sebelius over the ACA mandate. Would a victory for Mr Obenshain leave a loose cannon in a Democratic state govenment?

    Like or Dislike: Thumb up 1 Thumb down 0

  22. jib10 says:

    @Doug Mataconis: Of course Fairfax has way more provisional’s. it is the largest county and it has the most dynamic (i.e. people moving around) population.

    This is how the power base wins the election. It is almost impossible to manufacture votes out of thin air anymore. Instead they control which disputed ballots actually get counted and which ones get discarded. It is not that they are technically wrong, it is that they chose to fight these votes on these grounds while ignoring other issues that would hurt their candidate.

    Like or Dislike: Thumb up 2 Thumb down 0

  23. KM says:

    Like every authority group trying to appeal to youth they don’t understand and be “hip”, they come off looking like idiots. Just like your parents did with outdated slang in a effort to be cool. Like certain politicians trying to rap. Like a creepy Uncle Sam caricature trying to be Burger King’s evil basement-dwelling perv cousin. Like a cartoon dog telling to Take a Bite Out of Crime. And of course there are the eternal – “Stay in school, kids!” and “Don’t Do Drugs!” in the hokiest voice you can do.

    Poor advertising, perhaps. But then again, have you seen some of the ads on TV nowadays?

    Like or Dislike: Thumb up 0 Thumb down 0

  24. Ken says:

    @JohnMcC: My old english teacher’s admonition that if you can’t write clearly you leave considerable doubt as to whether you can think clearly

    I suspect that idea has been around for a long while, but the phrasing that Kurt Vonnegut used is my favorite: “If you can’t write clearly, you probably don’t think nearly as well as you think you do”

    Like or Dislike: Thumb up 0 Thumb down 0

  25. JWH says:

    @rodney dill:

    I …. can’t come up with a pun on “Obenschein.”

    Like or Dislike: Thumb up 0 Thumb down 1

  26. JWH says:

    Just for that downvote …

    This race reminds me of a fable, and the fable tells me that Obenschein might win. We all know the tale of the Tortoise and the Herring.

    Like or Dislike: Thumb up 0 Thumb down 0

  27. MarkedMan says:

    @rodney dill: Ok. JWH’s comment was a flagrant pun, and therefore questionable in polite company. Yours sir, goes beyond the pale.

    Like or Dislike: Thumb up 0 Thumb down 0

  28. JWH says:

    @MarkedMan: Huh? What? Could you speak up? I’m hard of Herring.

    Like or Dislike: Thumb up 0 Thumb down 0

  29. MarkedMan says:

    @JWH: I sit here, 13 hours ahead of east coast time, and realized if I had gone to bed just a little earlier I would have been spared that pun, at least for a while.

    Like or Dislike: Thumb up 0 Thumb down 0