What Happens in Virginia after the Attorney General Recount? Will Obenshain Use the Nuclear Option?

The recount in the Attorney General race should be completed by Christmas.  Details of the procedures for the recount can be found here, here and here. There are several possible outcomes, Herring could win by a larger margin or a smaller margin,  Obenshain could win, the third option is very unlikely but the race could be declared a tie.  If there is a tie, the General Assembly chooses the winner, advantage Mark Obenshain.

“In the seemingly unlikely event of a tie,” Nikki Sheridan from the Virginia State Board of Elections tells us, “…the winner would be determined by a majority vote of the total membership of the Virginia General Assembly.”

What happens if the recount concludes with Mark Herring still ahead by only a few hundred votes?  Mark Obenshain could file to contest the results of the election within three days after the conclusion of the recount.  Details here and here.   In that case the General Assembly would chose the next Attorney General.  The Virginia Senate is tied 20-20 between republicans and democrats but republicans hold 67 of the 100 seats in the House of Delegates.  Mark Obenshain would only need 71 republicans in the General Assembly to make him the next Attorney General.  Again, advantage Obenshain.  More on this ‘nuclear option’ here and here.

For the election to be contested it would be necessary for there to have been enough voting irregularities during the November election to have Mark Herring’s win declared invalid.  Such irregularities were numerous.   In Chesterfield county, General Registrar Larry Haake failed to purge the county’s voting lists of invalid voters prior to the election.  Every other county and city completed the purge, except Chesterfield.  That has led to the contention that Chesterfield’s voting rolls were not legitimate.   Details here.  There were also problems in Richmond, with a voting machine that was lost and later found, among other concerns.   We’ve all heard multiple times about the problems in Fairfax County, including this from state electoral board chairman, Charles E. Judd,

As he voted for certification Monday, board chairman Charles E. Judd said he had questions about how Fairfax County had conducted its canvass. Judd, former chairman of the Republican Party of Virginia, said he was concerned that poll numbers shifted repeatedly, and that some voters who cast provisional ballots in the heavily Democratic county were given more time than voters in other parts of the state to prove that their ballots should be counted.

Chairman Judd is not the only one to question the extra days given to provisional voters in Fairfax while provisional voters in other jurisdictions received no extra time for consideration of their ballots.  The DailyPress.com expressed similar concerns:

However, Fairfax officials allowed citizens casting provisional ballots to defend the validity of their votes until Nov. 11, which is more time than was given residents of other counties. Republicans make a fair point in arguing that voters in Fairfax should have been held to the same deadline as everywhere else.

Fairfax helped supply the votes that turned Sen. Obenshain’s early election night advantage in a tally that favored Sen. Herring by 165 votes. On Monday, the state Board of Elections certified those results, confirming Sen. Herring as Virginia’s next attorney general.

In doing so, Charles E. Judd, the board chairman and former executive director of Virginia’s Republican Party, raised several doubts about the vote totals in Fairfax. That would seem to give fodder to Sen. Obenshain’s contention that he won the race.

More on voting problems in Fairfax here, here, here, here, here and here.   If all jurisdictions in the state had been given an extra four days to consider their provisional ballots, the outcome of the race may have been very different.  Republican strongholds may have been able to overcome Herring’s slim lead.

With the numerous voting problems in Chesterfield, Fairfax, and Richmond, there are valid reasons for this election to be declared invalid and for the General Assembly to decide the outcome of the contest.  That’s exactly what I think will happen if Herring’s win remains as razor thin as it is now.