Race for Virginia Attorney General continues…
Republicans and Democrats across the Commonwealth of Virginia are bracing for a re-count and lawyering up as the race for Virginia Attorney General continues. Here is what has transpired so far.
First, Mark Obenshain held a 219 vote lead after all precincts had reported their results. One week later on November 12, Herring took the lead by 163 votes after a previously “lost” voting machine was located. By November 25 — the date the winner had to be certified by the Virginia State Board of Elections, Herring had taken the lead by 165 votes.
And, on November 25, 2013, Herring was declared the winner by a margin of 165 votes, making this the closest election in Virginia history.
Regardless of what either side may want to make of it, the election was a tie. The simple truth is that elections, like most other things in law and government, are designed to deal with most election outcomes. Normally an election involves measuring the opinion of large groups of people, determining a general trend, and then announcing a winner.
In other words, no election results are ever totally correct, but usually the results are more than sufficient to do the job. In all but a couple of elections over the past century, it just didn’t matter if a few dozen votes in one precinct somewhere in the Commonwealth get lost or if one polling place stayed open 45 minutes longer than it was supposed to or if one county allowed provisional votes an extra day to claim their ballot.
And it certainly didn’t matter whether a chad was “dimpled” or “pregnant” or whatever.
But here, because we are talking about a winning margin of less than one hundredth of a percent, we are well outside the boundaries of what can possibly be anticipated. We are more or less in no-man’s land and both candidates have lawyered up. Obenshain’s legal team is led by William Hurd and Herring’s legal team is led by Kevin Hamilton.
I say “more or less” because Virginia law does provide a procedure in Virginia Code § 24.2-800. First, a candidate for statewide office must file a petition for a recount in the Circuit Court for the City of Richmond. The Chief Judge for the Circuit Court for the City of Richmond is automatically appointed to head a three Judge panel, with the Chief Justice of the Supreme Court of Virginia naming the other two.
Mark Obenshain took this step last week, and the three Judges are Richmond Circuit Court Judge Beverly W. Snukals, Norfolk Circuit Court Judge Junius P. Fulton III and Danville Circuit Court Judge Joseph W. Milam Jr. The tribunal convened this week and heard oral arguments from the legal teams of both sides. The panel also established additional rules for the statewide tally that begins next week.
The court agreed to allow Fairfax County to begin recounting its ballots on December 16, one day earlier than the rest of the state, as a result of the number of ballots to be recounted.
Ultimately like most everything else in Virginia law, the final say rests with the General Assembly, because the law allows a candidate to contest the election results and put it to a vote of the General Assembly.
In the minds of some observers, Obenshain’s legal team has already started laying the groundwork for this sort of challenge. We are a ways off from that, but again, anyone that thinks the results of this recount are going to be a definitive statement of what happened on election day are kidding themselves.
Stay tuned dear readers, more to follow.
