Herring has declared victory, and Democrats refer to him as the attorney general-elect. Obenshain has emphasized that the race is far from over: He could gain votes during the state canvass, or during a statewide recount that the trailing candidate can request. And, though Obenshain has not mentioned it, Virginia law even includes a provision allowing the loser of the contest to ask the General Assembly to reverse the result.
But on a conference call with reporters Monday, Herring campaign lawyer Marc Elias said none of those possibilities appeared likely.
“I wouldn’t expect, based on history, a lot of movement” in the vote totals during the state canvass, Elias said.
Though vote numbers have shifted during the state canvass in the past — including during the tight 2005 attorney general race between then-Del. Robert F. McDonnell (R) and state Sen. R. Creigh Deeds (D-Bath) — Elias noted that this year’s results have undergone unprecedented scrutiny. Much of that, he said, has been on social media.
The Herring team also advanced the notion that Obenshain should consider not asking for a recount after the state certifies the results.
“Obviously Senator Obenshain will have a choice to make about whether to bring the people of Virginia through a recount. . . . Those of you who have seen past recounts in Virginia know they do not tend to change the results,” Elias said.
Obenshain spokesman Paul Logan pointed out that, because of changes in state law, Virginia has a different and “more thorough” recount process than it did during the 2005 race.
“We are currently in the state canvass stage in the closest statewide election in Virginia history, separated by 7/1000ths of a percent in the vote total,” Logan said. “This is new territory for Virginia, and at this stage in the automatic vote counting process, the responsible thing to do is to prepare for a potential transition should there be another change in the vote lead. Our top priorities in this record close election are to get it right and ensure that every legitimate vote is counted.”
The nonpartisan Center for Voting and Democracy has studied recounts that occurred between 2000 and 2009 across the country and found that, of 18 statewide recounts, three of them resulted in reversals. The average vote margin swing during those recounts was 296 votes.
Elias said it was farfetched to think the result would be challenged in the General Assembly after a local canvass, a state canvass and a recount have been completed. (To involve the Assembly, the losing candidate would have to lodge “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.”)
“At that point I think it is unlikely that anyone would seek to overturn that through legislative action. . . . That would be an extraordinary act for an elected legislature to do, and it’s not one that I think the Virginia legislature will do,” Elias said.