Mr. Obenshain trailed Mr. Herring by 165 votes (out of 2.2 million cast) when the State Board of Elections certified the results on Nov. 25; that margin widened Monday, the first day of the recount, to 185 after a fraction of the ballots were reviewed. The trouble is that Mr. Obenshain has maneuvered to leave himself wiggle room for a challenge even if the recount confirms that he has lost. That would be a gross error.
Such a challenge — under an obscure provision in state law, never before exercised in a statewide race, that allows appeals to the General Assembly — would be an act of contempt for Virginia’s voters. In a hyperpartisan era, it might conceivably be successful, given that the legislature is dominated by Mr. Obenshain’s fellow Republicans.
Mr. Obenshain exercised his right under Virginia law to demand a state-funded recount in a close election. Then, a week ago, a lawyer working for him raised the possibility that he might not respect the result, “depending on what we see” in the recount.
That remark, by attorney William H. Hurd, was not uttered carelessly; he said it in open court before the three-judge panel supervising the recount. It may have been nothing more than an attorney’s reflex to keep all options available; a day later, Mr. Hurd downplayed talk of a challenge as “premature.” Or it may have been a deliberate attempt to prepare public opinion for an attempt to overturn the election’s results.
If the General Assembly were to overturn the result of the recount in the absence of egregious evidence of fraud or malfeasance, it would amount to the nullification of the democratic process. That would be so whether it was done by the Republicans, who now control the legislature, or the Democrats, who have controlled it in the recent past and may again in the future.
Subjected to microscopic review, virtually every U.S. election reveals its share of mix-ups, irregularities and small errors; they occur because elections are run by people. Mr. Hurd has sought to magnify these and cast them as evidence of possible malfeasance. Unsurprisingly, he has focused on Democratic-leaning Fairfax County, the state’s most populous jurisdiction.
No evidence supports his insinuations. There is no sign that oddities cited by the Obenshain camp — some ballots submitted late to the clerk’s office; others cast by voters who went to the wrong polling station or showed up without identification — amount to anything approaching electoral fraud or wrongdoing. To all appearances, the Republicans have been picking at nits. That’s par for the course in any recount. What’s important, though, is that the recount, once finished, should be the final word.