RICHMOND, Va. —
Democrat Mark Herring kept his 165-vote edge over Republican Mark Obenshain in the cliff-hanging race for attorney general after the State Board of Elections completed its certification Monday of the closest statewide race in modern Virginia history.
The board’s chairman, Charles E. Judd, agreed to the certification with reservations about the “lack of conformity” over the statewide vote. He did not elaborate before the board resumed certifying General Assembly races.
Both candidates have dug in, with each announcing transition teams and Herring already announcing himself the victor. Virginia has no automatic recount, but the trailing candidate can seek a recount at taxpayer expense if the margin between winner and loser is less than one-half of 1 percent. The vote in the attorney general’s race falls within that margin.
Obenshain said Monday that he would continue to review the vote before deciding whether to seek a recount.
“Margins this small are why Virginia law provides a process for a recount,” Obenshain said in a statement. “However, a decision to request a recount, even in this historically close election, is not one to be made lightly.”
Each is seeking to succeed Republican Attorney General Ken Cuccinelli, who failed in his bid for governor.
In a recount, Obenshain’s best hope would likely involve challenges of ballots cast as absentees or provisional — those contested when they were cast because a voter lacked proper identification or because of questions involving proper polling place.
A possible target for a recount would be provisional ballots counted in Fairfax County, despite Republican protests that the local election board extended too much time for voters who had cast those disputed ballots to argue their case. The tally widened Herring’s lead.
The Fairfax County Electoral Board has defended its provisional ballot review, saying it followed “the letter of the law.”
Obenshain also will likely target absentee ballots based on how local election boards handled them. The so-called chain of custody of an absentee ballot would likely be examined by attorneys representing Obenshain.
The State Board of Elections and state law clearly spell out the steps required when counting absentee ballots, including alerting local political party chairs of the processing of absentee ballots so they can authorize a witness for the count.
Overseeing everything would be a recount court. It would include the chief judge of the Circuit Court where the recount petition was filed — Richmond, in this case — and two other judges appointed by the chief justice of the Virginia Supreme Court. A candidate has 10 calendar days after certification to request a recount.
Virginia law also provides for an unsuccessful candidate to “contest” the election, based on “specific allegations which, if proven true, would have a probable impact on the outcome of the election.”
That sends the disputed election to the majority Republican General Assembly, which would meet in joint session.
Obenshain represents the Harrisonburg area in the Virginia Senate, while Herring represents parts of Loudoun and Fairfax counties.