A week after Election Day, there may be as many lawyers involved in the race for Virginia attorney general as there are votes separating the two candidates.
As of Wednesday, state Sen. Mark R. Herring (D-Loudoun) led state Sen. Mark D. Obenshain (R-Harrisonburg) by 164 votes out of more than 2.2 million cast, according to the State Board of Elections, a margin that would make it the closest statewide contest in modern Virginia history.
The two candidates are digging in for a battle, and if the post-hanging-chads era has taught us anything, it’s that a race this tight can’t be over yet. The lawyers will make sure of that.
Obenshain’s strategy is to concede nothing. Statewide vote totals won’t be certified until Nov. 25, and then the trailing candidate will probably ask for a recount. So on Wednesday, both Obenshain and Herring announced transition teams, and Obenshain said it was premature to discuss legal action or a recount.
“I don’t know who is going to move into the attorney general’s office in January, and despite what Mark Herring says, he doesn’t know either,” Obenshain said at a Richmond news conference. “It is important for us to allow the State Board of Elections and our statutory process to work, to make sure every legitimate vote is fairly counted. And I’m committed to seeing that process through.”
Obenshain named four co-chairs for his transition team, and he noted that in the tight 2005 race for attorney general, both then-Del. Robert F. McDonnell (R) and state Sen. R. Creigh Deeds (D-Bath) set up transition teams, even though McDonnell’s lead was larger than Herring’s current edge. (After a recount, McDonnell was declared the winner by 360 votes.)
Obenshain added that “it would be foolhardy for someone to bet the whole enchilada on the proposition that they were going to wind up having the coin land on their side. You don’t see Mark Herring resigning his Senate seat, nor do you see me resigning my Senate seat.”
Herring behaved Wednesday as though his victory was inevitable. He named five co-chairs for his transition team, and said David Hallock — a top aide to U.S. Sen. Mark R. Warner (D-Va.) — would lead the effort.
“Transitions are about new beginnings, and this transition will be a return to fundamentals,” said Herring, who then took an apparent swipe at the current attorney general, Ken Cuccinelli II (R). “We will get back to putting ideology and partisanship aside and putting the law and Virginians first.”
Among those watching the contest closely is Gov.-elect Terry McAuliffe (D), who could turn to a Democratic attorney general for help in shaping state policy and dealing with the General Assembly. A Herring win would also give Democrats control of all five statewide offices (including two U.S. Senate seats) for the first time in 44 years — and leave Republicans with a thin bench for future races.
During the election canvass, the Republican Party of Virginia deployed about 100 people, including lawyers and other operatives, across the commonwealth, spokesman Garren Shipley said. Now, that GOP squadron continues to travel the state, gathering paper records from every jurisdiction in case they’re needed during a recount.
Democrats also have a large corps of lawyers and field staff at the ready, led by veteran campaign lawyer Marc Elias of the firm Perkins Coie.
Rick Hasen, a University of California at Irvine law professor who runs the Election Law Blog, said close races have always attracted swarms of lawyers, even before the famed Florida recount in the 2000 presidential election. But by his calculation, the amount of election litigation overall has more than doubled nationwide since that episode.
“Election law has become part of political strategy,” Hasen said.
The Supreme Court decision in Bush v. Gore, which ended the 2000 presidential race, might come into play in the Virginia contest as Republicans could make the case that voters in different parts of the commonwealth were not afforded equal protection under the law.
That’s the argument Republicans made without success at the Fairfax Government Center on Tuesday night, when the county electoral board ruled that Herring had picked up 160 provisional votes and Obenshain, 103, adding 57 votes to the Democrat’s lead.
As part of the canvass, electoral boards in each locality checked their numbers and decided whether provisional ballots — typically submitted by people who did not have identification or who went to the wrong polling place — should count. Statewide, 3,158 provisional ballots were cast, 493 of them in Fairfax.
The Fairfax election board, which includes two Republicans and one Democrat, decided to give provisional voters until Tuesday afternoon to appear in person to argue for the validity of their ballots. Other jurisdictions in the state had a Friday deadline.
That difference, GOP attorney Miller Baker contended Tuesday night, meant voters outside Fairfax were being denied equal protection, the issue at the heart of Bush v. Gore. Members of the electoral board said they were following the guidance of the state board.
The problem, Baker told the board, is that “once these votes are tabulated, they’re in and no matter what happens, they can’t be taken out.”
Edward Foley, a professor and election law expert at Ohio State University’s law school, made the same observation Wednesday.
“Usually, once a ballot has been counted and mixed into the pool, you can’t really retract it,” Foley said.
But the GOP can still place some hope in a recount. “The recount itself might reveal potential problems with the vote counting that could be the basis for a future challenge,” Hasen said.
Under Virginia law, the losing candidate in the race for attorney general can file a petition requesting a recount with the Circuit Court of the City of Richmond. The process would be overseen by a special recount court, led by the chief judge of the Richmond Circuit Court and two other judges appointed by the chief justice of the Virginia Supreme Court.
As a last resort, after a recount, the loser could contest the election in the General Assembly. In that case, “the final determination” of the winner would be made by an unusual joint session of the Senate and House of Delegates.
Laura Vozzella in Richmond and Antonio Olivo contributed to this report.