Republican Mark Obenshain formally filed for a recount of the Nov. 5 election for attorney general today, initiating a court-supervised process for deciding the closest statewide election in modern Virginia history.
Obenshain’s lawyers filed the petition in Richmond Circuit Court two days after the state board of elections certified Democrat Mark Herring’s 165-vote victory. Herring received 1,103,777 votes to Obenshain’s 1,103,622, according to the board-certified results. The margin is close enough to warrant a taxpayer-funded recount.
In Obenshain’s petition, lawyers noted that the chairman of the state board of elections voiced concerns about “the integrity of the data” during Monday’s certification process. They also noted that state law allows the election results to be contested in the General Assembly, a body controlled by Republicans.
“The fundamental difference between the two procedures is that a recount focuses on the ballots actually cast and determines the number cast for each candidate (Potentially yielding a different result due, for example, to uncounted ballots, addition errors, transposition of numbers, etc.), while a contest challenges the integrity of the election process (raising, for example, issues such as voter ineligibility, fraud, significant departures on election day from prescribed procedures).”
For now, the election’s outcome hinges on the court-supervised recount process.Judge Bradley Cavedo, the chief judge of the Richmond Circuit Court, will head a three-judge recount court. The other two judges will be appointed by the chief justice of the Virginia Supreme Court.
According to Obenshain’s petition, lawyers for both candidates have agreed that a preliminary hearing should be held next Wednesday, Dec. 4. Obenshain’s lawyers also auggested that the actual recount could occur on Dec. 18 or Dec. 19. Obenshain’s lawyers suggested in their petition that the recount could occur on Dec. 18 or Dec. 19.
The actual recount will be performed by two-member teams of election officials in every locality. The work is coordinated by one Republican and one Democratic member of each electoral board.
The last recount in a statewide election occurred in 2005, when Republican Bob McDonnell edged Democrat Creigh Deeds by 360 votes in the race for attorney general. But the General Assembly has since made a significant change to the recount process. Unlike in 2005, the law now requires election officials to run all optical scan ballots to be re-run through tabulators. An estimated 712,000 optical scan ballots were cast on Nov. 5, according to the Virginia Public Access Projects.
The tabulators must be programmed to count only the attorney general’s race. Election officials will hand count optical scan ballots that are kicked out by the machine because of apparent “undervotes” or “overvotes.” Undervotes would be ballots that register no machine-readable vote for attorney general. Overvotes would be ballots that contain votes for more than one candidate.