I saw this story on MSNBC (“The victor in Virginia’s attorney general race stands a chance of losing“) this morning, and have been talking to knowledgeable people about it all day. First, here’s the gist of it:
Even if Democrat Mark Herring ends up with more votes than his Republican rival Mark Obenshain in the tightly contested Virginia attorney general’s race, he could still lose.
Herring is currently ahead of Obenshain by a follicle-the current official count states that Herring has 164 more votes than Obenshain out of more than two million cast. A recount is all but guaranteed and litigation seems likely. But even if after the dust clears Herring remains in the lead, under Virginia law, Obenshain could contest the result in the Republican dominated Virginia legislature, which could declare Obenshain the winner or declare the office vacant and order a new election.
“If they can find a hook to demonstrate some sort of irregularity, then there’s nothing to prevent them from saying our guy wins,” says Joshua Douglas, an election law expert and professor at the University of Kentucky College of Law. “There’s no rules here, besides outside political forces and public scrutiny.”
I checked the Virginia code for what it had to say on this. Here’s the key part:
§ 24.2-804. Contest of elections of Governor, Lieutenant Governor, and Attorney General.
In any election for Governor, Lieutenant Governor, or Attorney General, notice of the intent to contest the election shall be filed with the Clerk of the House of Delegates as prescribed in § 24.2-803. The provisions of § 24.2-803 shall govern standing, notice of intent to contest, answers, service of process, evidence, the petition, procedures, relief, and assessed costs except (i) that in a contest of an election held at the November general election the petition shall be filed within two days following the commencement of a special session of the General Assembly called for the purpose of hearing the contest or of the next regular session of the General Assembly, whichever first occurs, and (ii) that the final determination shall be made by the General Assembly, both houses sitting in joint session in the hall of the House of Delegates, with the Speaker of the House of Delegates presiding.
I then started calling smart Virginia lawyers and politicos I know to ask them if I was missing something here. Apparently, I wasn’t. In fact, it IS possible that this situation could unfold, and that the winner of the Virginia Attorney General’s race could be determined by the Republican-dominated Virginia General Assembly (a 67-32 Republican majority in the House of Delegates; a 20-20 tie at the moment in the State Senate, pending a special election for Ralph Northam’s Senate seat), with Speaker Bill “ALEC” Howell (R) presiding. Does this give you a warm, fuzzy feeling or what? Yeah, I didn’t think so.
Now, you might be wondering the basis upon which the Obenshain folks would contest the election. From what I can tell, they’d probably argue that there was an “equal protection” violation in the way provisional ballots were treated across the state. Note that Republican lawyers raised this exact issue in Fairfax this past Tuesday evening, in front of reporters and elections officials.
UPDATE 8:05 pm: Max Smith tweets, “GOP also objects over check box voters were supposed to hit that they are not registered elsewhere asks for delay for certification.” @JulieCareyNBC tweets, “Electoral Bd Secy Brian Schoeneman responds: ‘I’m a Republican. We have scrupulously followed the spirit and letter of the law.’…Schoeneman continues: Says Board has exercised its discretion. The fact that other Boards haven’t, does not create equal protection issue.”
UPDATE 8:01 pm: Commence whining. @JulieCareyNBC tweets, “‘Fairfax Co, voters are receiving more lenient, preferential treatment,’ complains GOP attny & says ballots were accepted that weren’t signed.” Max Smith tweets, “GOP rep says the extra time for provisional voters in Fairfax definitely made a difference in whether some ballots accepted.” Oh god no, can’t have THAT! (snark) @notlarrysabato (Ben Tribbett) tweets, “Miller Baker [Republican who ran for State Senate in 2011] is objecting to Fairfax allowing provisional ballots for voters who appeared this weekend instead of before Friday…Republicans complain about ‘lenient’ treatment for Fairfax voters by this board.”
Note that Republican electoral board member Brian Schoeneman specifically states that the “Board has exercised its discretion” and that “The fact that other Boards haven’t, does not create equal protection issue.” Still, Obenshain’s attorneys are on the record as making this argument, so nobody should be surprised if we hear more of it going forward.
Of course, as State Senator Chap Petersen points out, this “is all conjecture” at this point, as to date there “has been no recount, and no formal legal challenge” by the Republicans. Of course, that wouldn’t happen until after the Virginia State Board of Elections certifies the election results on November 25. It is then, assuming that Mark Herring still leads, that Mark Obenshain’s team will likely call for a recount. Following that, presuming that Herring continues to lead, the only other options for Obenshain would either be a) to call Herring and congratulate him on his election as Attorney General; or b) to “contest” the election. At which point, most likely all hell would break loose. As Chap Petersen writes:
…don’t expect the Democrats to take this lying down. Any statewide election decided by the General Assembly would be immediately challenged in Federal court, under the Voting Rights Act and the constitutional principle of “one man, one vote.” You can bet on that.
Which would be fascinating, and who the heck knows how it would play out. Definitely something to keep an eye on…
P.S. Check out The Last Contested Election in America for how a contested election played out in North Carolina in 2005. Note that it took around 9 months to resolve!