Cer­ti­fi­ca­tion not likely to set­tle AG race

The Washington Times Daily - - Metro - BY STEVE SZKOTAK

RICH­MOND | The clos­est statewide race in mod­ern Vir­ginia po­lit­i­cal his­tory is un­likely to end Mon­day when the State Board of Elec­tions cer­ti­fies the votes for at­tor­ney gen­eral. Of the 2.2 mil­lion bal­lots cast Nov. 5, the two can­di­dates are a mere 165 votes apart.

Repub­li­can Mark D. Oben­shain has sig­naled he will seek a re­count in his ra­zor-thin race with Demo­crat Mark R. Her­ring, though he hasn’t di­rectly said so. Mr. Oben­shain could press the is­sue to the Gen­eral As­sem­bly if he wants to take it to the lim­its of the law.

Mr. Oben­shain has given ev­ery in­di­ca­tion he’s dig­ging in, even an­nounc­ing a tran­si­tion team af­ter Mr. Her­ring had de­clared vic­tory.

“With such a his­tor­i­cally nar­row mar­gin, Vir­ginia vot­ers ex­pect and de­serve a care­ful process that en­sures that ev­ery le­git­i­mate vote is counted,” spokesman Paul Lo­gan wrote in an email to The As­so­ci­ated Press.

Mr. Her­ring also has an­nounced his tran­si­tion team, vow­ing to “build an at­tor­ney gen­eral’s of­fice that works for all Vir­gini­ans.”

Ellen Qualls, a spokesman for Mr. Her­ring, said that process is “mov­ing along.”

“We an­tic­i­pate the Her­ring vic­tory will be cer­ti­fied on Mon­day — and no statewide re­count has ever over­turned a cer­ti­fied re­sult,” she said.

Mr. Oben­shain rep­re­sents the Har­rison­burg area in the Vir­ginia Se­nate. Mr. Her­ring rep­re­sents parts of Loudoun and Fair­fax coun­ties. Both seek to suc­ceed Repub­li­can At­tor­ney Gen­eral Ken­neth T. Cuc­cinelli II, who fell short in his bid for gov­er­nor.

Vir­ginia does not pro­vide for an au­to­matic re­count, but a can­di­date can seek one if the mar­gin of the cer­ti­fied vote is less than 1 per­cent. Lo­cal­i­ties pick up the costs of the re­count if the mar­gin is less than half of 1 per­cent­age point, but the can­di­date picks up the tab if it’s above that. Based on cur­rent State Board of Elec­tion num­bers, tax­pay­ers would pick up the cost.

If his­tory is any in­di­ca­tion, the chance of Mr. Oben­shain over­com­ing Mr. Her­ring’s edge is slim.

In the clos­est statewide race be­fore this at­tor­ney gen­eral con­test, Repub­li­can Bob McDon­nell widened his lead over Demo­crat R. Creigh Deeds by sev­eral dozen votes in the 2005 race for at­tor­ney gen­eral. The two were 323 votes apart on elec­tion night.

Mr. Oben­shain’s best hope will 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.

“I ex­pect those is­sues will be raised and not the ac­tual vote count,” said Robert Roberts, a pro­fes­sor of po­lit­i­cal sci­ence at James Madi­son Univer­sity. “The con­test isn’t go­ing to be over the count­ing of the votes, but ba­si­cally which votes should be counted, much like what hap­pened in Florida.”

The 2000 dis­pute in that state over pres­i­den­tial bal­lots fa­mously fo­cused on punch-card bal­lots, which be­came known for their hang­ing chads.

Mr. Oben­shain also will likely tar­get ab­sen­tee bal­lots, Mr. Roberts said, 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 Mr. Oben­shain in a re­count.

The State Board of Elec­tions and state law clearly spell out the steps re­quired when count­ing ab­sen­tee bal­lots, in­clud­ing alert­ing lo­cal po­lit­i­cal party chair­men 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.

“The au­thor­ity of the re­count court is fairly broad,” Mr. Roberts said. “You can raise what­ever is­sue you want be­fore the court. Now, whether they act on that re­mains to be seen.”

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.

“They can re­verse the elec­tion, de­clare some­body a win­ner, or or­der a spe­cial elec­tion — do it all over again,” Mr. Roberts said.

Oben­shain

Her­ring

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