Gen­eral As­sem­bly could set­tle race

Strat­egy could have con­se­quences if used to set­tle ra­zor-thin at­tor­ney gen­eral race

The Washington Times Daily - - Metro - BY MERED­ITH SOMERS

A ra­zor-thin mar­gin in the Vir­ginia at­tor­ney gen­eral’s race could ul­ti­mately put the de­ci­sion about a win­ner be­fore the Gen­eral As­sem­bly — but the rarely used strat­egy of con­test­ing an elec­tion comes with its own po­lit­i­cal con­se­quences, an­a­lysts say.

With Demo­crat Mark R. Her­ring lead­ing Repub­li­can Mark D. Oben­shain by 0.007 per­cent of the to­tal statewide votes, whichever can­di­date is trail­ing when the state cer­ti­fies the elec­tion re­sults Nov. 25 is all but cer­tain to call for a re­count. And de­pend­ing on the re­sults, the can­di­dates could con­ceiv­ably con­test the elec­tion.

Vir­ginia law gives the Gen­eral As­sem­bly wide lat­i­tude to act af­ter hear­ing a can­di­date’s case. Law­mak­ers have the au­thor­ity to re­ject the ap­peal, to or­der a new elec­tion or even to de­clare a win­ner — whether it is the can­di­date who held the lead or the can­di­date who con­tested the elec­tion.

But the bar for suc­cess is ex­tremely high. The law states that a can­di­date must de­tail “ob­jec­tions to the con­duct or re­sults of the elec­tion ac­com­pa­nied by spe­cific al­le­ga­tions which, if proven true, would have a prob­a­ble im­pact on the out­come of the elec­tion.”

“That’s a heavy bur­den,” said for­mer Vir­ginia At­tor­ney Gen­eral An­thony F. Troy. “A con­test, you have to demon­strate not that a vote was cast that shouldn’t have been cast, but the re­sults — the out­come — would have been dif­fer­ent.”

GOP lawyers ap­peared to be lay­ing the ground­work for a pos­si­ble claim Tues­day as Fair­fax County tal­lied its pro­vi­sional bal­lots. At­tor­ney M. Miller Baker called the elec­toral board’s ap­proval of such bal­lots an “ex­tra­or­di­nary, un­prece­dented move and said that, while the board’s ef­forts to get as many vot­ers in­cluded in the fi­nal cer­ti­fi­ca­tion was laud­able, it raised ques­tions about whether the state was pro­vid­ing equal pro­tec­tion for vot­ers.

“Fair­fax vot­ers are re­ceiv­ing more­le­nient, more-pref­er­en­tial treat­ment than other vot­ers in Vir­ginia,” he said. “All Vir­ginia vot­ers are ac­corded the same treat­ment. That is not hap­pen­ing here to­day.”

At a news con­fer­ence this week, Mr. Oben­shain re­fused to spec­u­late on whether he would call for a re­count, and when asked about ac­tion be­yond that he said it was “pre­ma­ture” to state in­ten­tions.

The move could be po­lit­i­cally risky as well.

The Her­ring camp on Thurs­day is­sued a news re­lease cit­ing editorials in The Wash­ing­ton Post and the Rich­mond Times-Dis­patch urg­ing both sides not to pur­sue a le­gal case. The at­tor­ney gen­eral’s po­si­tion has long been a launch­ing point for gu­ber­na­to­rial bids, and a pro­tracted strug­gle could tar­nish the can­di­dates and dam­age their fu­ture am­bi­tions.

“I don’t be­lieve in re­cent his­tory any Vir­ginia can­di­date has brought a con­test,” said John Hardin Young, an elec­tion ad­min­is­tra­tion lawyer who was part of Al Gore’s le­gal team dur­ing the re­count of the dis­puted pres­i­den­tial elec­tion in Florida in 2000.

Mr. Young also said he thought the chances were “re­mote” that a re­count would change the out­come.

In the 2005 race for at­tor­ney gen­eral, Repub­li­can Bob McDon­nell picked up 37 votes in a statewide re­count out of about 1.9 mil­lion bal­lots cast and de­feated Demo­crat R. Creigh Deeds by 360 votes.

In the only other statewide re­count in mod­ern Vir­ginia his­tory, Repub­li­can Mar­shall Cole­man shaved only 113 votes from Demo­crat L. Dou­glas Wilder’s 7,000vote ad­van­tage in the 1989 gov­er­nor’s race.

Michael P. McDon­ald, an as­so­ci­ate pro­fes­sor of gov­ern­ment and pol­i­tics at Ge­orge Ma­son Univer­sity, said if the mar­gin shrinks any more af­ter a re­count, he could imag­ine Mr. Oben­shain go­ing to the Gen­eral As­sem­bly to con­test the elec­tion.

He said that in the wake of the re­count he also could fore­see pos­si­ble law­suits which could start quickly if one of the can­di­dates pur­sued that path.

“We may see fil­ings even be­fore the state board re­sults,” he said, adding that watch­ing lawyers across the state mon­i­tor­ing pro­vi­sional bal­lots could be a har­bin­ger.

Mr. Troy, how­ever, was skep­ti­cal about a law­suit.

“I’ve been han­dling elec­tion laws for years, and I’ve never heard of a sit­u­a­tion where a state was sued be­cause some­one did not like the way it con­ducted an elec­tion,” he said.

Re­gard­less of the route the can­di­dates take once the re­sults are cer­ti­fied, Mr. Troy said one goal should re­main in the minds of ev­ery­one in­volved.

““The key mo­ti­va­tion here for ev­ery­one should be, there comes a time when the elec­tion­eer­ing ends and the gov­ern­ing be­gins,” Mr. Troy said.

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