Contesting the election through the General Assembly would be an extraordinary step, one that political observers said has never been taken in a statewide race, at least not in modern Virginia history.
It is something that Obenshain, of Harrisonburg, is unlikely to try unless his campaign can make a case for massive irregularities in the election process. The option would be even less appealing for Democrat Mark R. Herring given the GOP’s dominance in the legislature. In the race between the two state senators, Herring, of Loudoun County, was declared the winner by 165 votes out of more than 2.2 million cast.
“It depends entirely on the narrative you put out,” said Bob Roberts, a James Madison University political scientist. “Clearly the Obenshain campaign is trying to create this narrative that somehow the election is entirely flawed. If you can sell that to the voters, that somehow all these registrars have messed up, then you’ve got a case you can take to the legislature.”
Obenshain attorney William H. Hurd said in court this week that the campaign needed access to certain election data even before the recount is completed Dec. 19 because the deadline to appeal to the General Assembly is Dec. 23. But in an interview Wednesday, Hurd stressed that no decision had been made on involving the legislature. He dismissed such talk as “premature” and “hypothetical.”
But Hurd also said the campaign had been made aware of additional irregularities regarding the handling of ballots in Virginia’s largest jurisdiction.
The campaign said this week that some used ballots and blank ballots were misplaced in Fairfax after the election and belatedly turned in to the Circuit Court clerk. A Fairfax official confirmed that account but said the ballots, though misplaced, had been securely stored in a locked cart with voting machines.
On Wednesday, Hurd said the campaign had received conflicting reports from Fairfax about just when those misplaced ballots were turned into the clerk. One report said some ballots were turned in Nov. 18; another said the ballots were delivered Nov. 20.
“This two-day gap is especially troubling since it involves not only ballots that were presumably cast legitimately on Election Day, but also unused ballots that could, in the wrong hands, provide a means for tampering,” Hurd wrote to Fairfax election officials Wednesday. “Your report makes no attempt to resolve this discrepancy, but completely ignores it.”
In a conference call with reporters Wednesday, Herring attorney Marc Elias called it “telling” that Obenshain’s team has complained about ballot security in Fairfax and has pushed for immediate access to poll books. Those issues would not come into play in the recount but could form the basis for an eventual contest in the assembly.
That focus, Elias said, suggests that Obenshain doesn’t expect to win in the recount and is already looking past it.
“The other side has pushed for a number of things that seem less aimed at affecting a recount and more that operate under the assumption that they will not prevail in a recount,” Elias said.
Over the objections of Herring’s team, Hurd argued successfully in court this week for access to electronic data in poll books and other election records. Elias said Herring did not want “overburdened” election officials to spend time preparing materials that weren’t directly relevant to the recount. “I am not worried that anything in the poll books is going to provide the basis for a challenge, in the recount or otherwise,” Elias said.