Home 2013 races Could Virginia Republicans Steal the Attorney General’s Race?

Could Virginia Republicans Steal the Attorney General’s Race?


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!

  • ConsDemo

    Failure to contest a race the GOP lost fair and square will be considered “caving” by the tea party nuts.  Virginia’s current “Attorney General” will be on the attack as the partisan he is, egging Obie on.  Rules and a sense of fairness are irrelevant to these lunatics, they are convinced Democrats only win by “stealing” elections, thus any attempt to change the result is fair game.

    Btw, I assume the new Attorney General would take office at the same time as the new Gov and Lt-Gov in mid-January.  What happens if the AG election isn’t resolved by then?  Does Cooch stay on?  Is the office vacant?

  • reasonoverfaith

    It will stay vacant until they have a special election for the office again.

  • Dave Webster

    Since this is a joint session does that mean a straight majority vote and the tie in the Senate doesn’t matter.  It’s $10.00 per precinct for the surety bond.  How many precincts are there in Virginia?

  • unstablefan

    But I don’t think the GOP will do. Having the AG’s office for 4 years is not worth the blowback among moderate and independent voters. It can’t be.

  • antonio_m_elias

    If the ONLY issue the GOP raises is based on the somewhat valid Bush v. Gore equal treatment across localities argument, saying that the Fairfax provisionals were improperly counted, that wouldn’t change the results of the Statewide Election. Mark Herring netted 67 votes from the Fairfax provisional count, so even if you threw ALL of those out, as the numbers stand now, Herring would still lead by 97 votes.

    So for the General Assembly GOP to say: one locality messed up big time (they didn’t), meaning the Dem ONLY won by 97 votes, meaning the Republican actually wins… that probably wouldn’t fly. Even if they were crazy enough to ignore math, which they could, a Federal Judge could probably figure out the simple addition.

    My estimation is that if the Republicans do choose to go this route, which is far from certain, they’ll have to come up with some other issue besides the Fairfax provisional count.

  • The Richmonder
  • Andy Schmookler

    Maybe I’m too much of an optimist (I, who think that the rise of this power that’s hijacked the Republican Party represents the biggest crisis in American history, with the possible exception of the drive to the Civil War), but…

    My guess is that the costs of such a naked power grab are too high for one state’s attorney generalship.

    In 2000, the Republicans and their allies in the Supreme Court were willing to disgrace themselves to steal the presidency.  And boy, did they gain the power to take history in a whole new direction with that one.

    For the presidency, they sold their souls, handing down a decision so bad even its authors said, “Don’t use this reasoning for anything else.”

    But for the office of Attorney General of one state?

    Not only would Virginians see this outrage, and be outraged by it, but the rest of the country would as well. It would be a big black eye for the Republicans on a larger scale than Virginia.

    I just don’t think it would be worth the cost.

  • pvogel

    evidence  #1     gerrymandering Obamas  second innauguration.

    Evedince   #2   Look what they did to Charniele  herring in 2009

  • Glen Tomkins

    Well, the snippet of the code you posted certainly doesn’t even imply that anyone contesting an election can summon the legislature into a special session.  So we don’t have to worry about any of this happening until the regular session.

    And then, the text seems to call for a bicameral agreement needed to resolve the election.  Joint session just means they meet in the same hall to listen to the same testimony and arguments about the election, not that they vote as some 140 member agglomerated body.  Obenshain only becomes AG if the Senate agrees.

  • ConsDemo

    In my original post, I suggested the GOP base would support any attempt to overturn the results.  Others have noted there are very good reasons for Obenshain not to go this route and they may be right.

  • The Richmonder

    Democrats need to stop agonizing about far-fetched scenarios that are unlikely to occur.