Oben­shain makes re­count re­quest of­fi­cial

Cites need for ac­cu­racy

The Washington Times Daily - - Metro - BY MERED­ITH SOMERS

Repub­li­can Mark D. Oben­shain on Wed­nes­day filed a pe­ti­tion ask­ing for a re­count of the re­sults in this month’s at­tor­ney gen­eral’s race — a con­test sep­a­rated by just 165 votes.

In an 11-page pe­ti­tion and mem­o­ran­dum filed in Rich­mond Cir­cuit Court, Mr. Oben­shain’s lawyers stated that “the ra­zor-thin mar­gin, the need for ac­cu­racy and pub­lic con­fi­dence in the out­come re­quire that a re­count be held.”

The race was the clos­est in Vir­ginia his­tory, with the can­di­dates sep­a­rated by 0.007 per­cent out of more than 2.2 mil­lion votes cast.

Demo­crat Mark R. Her­ring was de­clared the win­ner of the at­tor­ney gen­eral race on Mon­day by the Vir­ginia State Board of Elec­tions, though board Chair­man Charles Judd voted to cer­tify the re­sults “with ques­tion,” cit­ing con­cerns he had about the “in­tegrity of the data.”

Vir­ginia law al­lows a los­ing can­di­date to re­quest a re­count if the mar­gin is less than 1 per­cent of the vote.

Mr. Oben­shain’s cam­paign pointed out that in the past 13 years four statewide elec­tions in the coun­try have had mar­gins of fewer than 300 votes, and three of them were re­versed af­ter a re­count.

“As we’ve seen in other races with a mar­gin this slim, this re­sult could eas­ily change when it’s all said and done,” said Paul Lo­gan, an Oben­shain cam­paign spokesman.

The re­count process be­gins with the State Board of Elec­tions set­ting the stan­dards for the han­dling, se­cu­rity and ac­cu­racy of the tally.

A three-mem­ber “re­count court” is formed in Rich­mond and is headed by the chief judge of the Rich­mond Cir­cuit Court, Judge Bradley B. Cavedo.

“As soon as the pe­ti­tion is filed the process be­gins for the re­count court,” said Stephen C. Piep­grass, a mem­ber of Mr. Oben­shain’s le­gal team. “We’ve been in touch with the Her­ring cam­paign and worked to make sure all of the pro­ce­dures are agreed to and fol­lowed prop­erly.”

Two ad­di­tional cir­cuit court judges are ap­pointed to the board by the chief jus­tice of the Vir­ginia Supreme Court.

The re­count court sets the stan­dards for de­ter­min­ing the ac­cu­racy of the votes and cer­ti­fies the elec­tion re­sults. Its rul­ing is fi­nal and can­not be ap­pealed, ac­cord­ing to Vir­ginia law.

“The re­count it­self takes place in mid-De­cem­ber but it is up to the court when that is held,” Mr. Piep­grass said.

The bal­lots will be re­counted in each precinct, Mr. Piep­grass said, adding that re­count of­fi­cials and cam­paign ob­servers will be present at each lo­ca­tion. Most ju­ris­dic­tions should be able to com­plete the process in a day, but some could take two or three days.

The 165-vote mar­gin comes to less than two votes per county.

Many ju­ris­dic­tions use elec­tronic voter ma­chines with touch­screen bal­lots. The tapes from those ma­chines will sim­ply be re­tal­lied. But some places also use op­ti­cal scan bal­lots in which vot­ers fill in a bub­ble to choose a can­di­date.

The op­ti­cal scan tab­u­la­tors are re­run through a pro­gram that counts only the votes for the race be­ing scru­ti­nized. The re­count will look for any bal­lots that might not have been read by the ma­chine be­cause they were dam­aged or torn or be­cause the

voter at­tempted to change a se­lec­tion.

The non­par­ti­san Vir­ginia Pub­lic Ac­cess Project es­ti­mated about 712,000 pa­per bal­lots would need to be re­run through op­ti­cal scan ma­chines.

The cam­paign also drew spe­cial at­ten­tion to “un­der­votes,” in which a voter did not ap­pear to have made a choice in all the elec­tions on the bal­lot. The lawyers said it was pos­si­ble that a voter could have in­di­cated their pref­er­ence with an ar­row or a check rather than fill­ing in the bub­ble, and the ma­chine did not reg­is­ter the mark even though their pref­er­ence was clear.

Dis­puted bal­lots will be sealed and sent to Rich­mond for the re­count court to de­cide.

Of­fi­cials also will hand count ab­sen­tee and pro­vi­sional bal­lots, which are on pa­per.

Dur­ing the ini­tial bal­lot cer­ti­fi­ca­tion, Repub­li­can ob­servers were crit­i­cal of the way Fair­fax County’s Elec­toral Board han­dled pro­vi­sional bal­lots and the “ex­tra­or­di­nary” lengths the county went to make sure votes were counted — sen­ti­ments also shared by Mr. Judd when mak­ing his per­sonal state­ment dur­ing the elec­tion cer­ti­fi­ca­tion.

Asked whether they an­tic­i­pated more prob­lems with the large ju­ris­dic­tion, Ash­ley L. Tay­lor Jr., a mem­ber of Mr. Oben­shain’s le­gal team ac­knowl­edged con­cerns could arise as the re­count pro­gresses but said at this point it’s “pre­ma­ture to fo­cus on any sin­gle ju­ris­dic­tion and those bal­lots.”


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