Home 2013 races Jeff Schapiro: Mark Obenshain Preparing a “Nuclear Option” to Steal the Virginia...

Jeff Schapiro: Mark Obenshain Preparing a “Nuclear Option” to Steal the Virginia AG Election?


On November 16, I raised a red flag that Mark Obenshain and the Republicans could be preparing to “contest” the Virginia Attorney General’s election, thus sending it to the Republican dominated Virginia General Assembly for a decision. Some claimed I was worrying too much (note: Sen. Chap Petersen agreed that this was something to keep an eye on), but mostly I just wanted to make people aware that this was a serious possibility.

So this morning, I was pleased to see one of Virginia’s top political analysts, Jeff Schapiro of the Richmond Times-Dispatch, basically agreeing with everything that I said.

Republican Mark Obenshain is trailing Democrat Mark Herring for attorney general by 164 votes. Obenshain could win with as few as 71 – with not a single one cast by an ordinary Virginian. It is a nuclear option that takes the election out of the hands of the electorate.

Obenshain could initiate what state law calls a “contest” in which the 140-member legislature decides the attorney generalship by a majority vote. That would be a minimum of 71. They shouldn’t be too difficult for Obenshain to round up. There are 87 Republican legislators. Many of them don’t like one bit that their party could be completely shut out of statewide office.

A contest would be high-risk. Democrats would almost certainly accuse Obenshain of stealing the election, having overridden the popular vote in an increasingly blue state. A contest also could be high reward. Obenshain would cement his status as his party’s titular leader and its likely gubernatorial nominee in 2017. But the big issue that year would probably be Obenshain’s scheming four years earlier.

I keep asking top-level Virginia Democrats why this reasoning is wrong, and I keep getting dead silence in response. Which, in my view, speaks volumes: that these people are VERY nervous about such a scenario, but hope that by not talking about it…well, I’m not sure, that it will just go away? The bottom line, from everything I’ve read and everyone I’ve talked to, is that Democrats can’t legally stop Obenshain from contesting the election, thus throwing it to the Republican-controlled General Assembly. So again, I ask, why shouldn’t we all be worried about this exactly? Because we assume the Republicans will “do the right thing?” (what, out of the goodness of their hearts?) Any reason to assume that?

P.S. The State Board of Elections is scheduled to certify the Virginia election results tomorrow. Then, Obenshain’s team is almost certain to file for a recount, which he won’t even have to pay for since the race is within 0.5 percentage points. After that, assuming that Mark Herring still leadds (which is a high likelihood, as recounts rarely change much), then it’s crunch time for Obenshain et al – will they concede or contest? We should know within days.

  • BatCave

    on his blog, clearly the Dems would file a federal lawsuit if Herring is declared the winner after the recount, Obenshain contested the election and the GA awarded the win to Obenshain.

    If the recount confirms that Herring is the winner, the Herring campaign and the D’s need to aggressively market that fact to get public opinion on their side in an attempt to make some Republicans in the GA wary of siding with Obenshain if Obenshain contests the election.  And clearly, those Republican members of the House of Delegates from places like Fairfax County, who had very close elections, should be at the top of the targeted list.    

    During the 2000 presidential recount in Florida, the Bush campaign aggressively marketed the fact that Bush was the winner and it was the Gore campaign and the Dems who were trying to steal the election.  And the Bush campaigns  marketing campaign clearly moved public opinion to their side.  And in this AG’s race, getting public opinion on your side is clearly much more important in this race since it is the legsilature that will decide, while it was the courts that made the decision in 2000.      

  • Glen Tomkins

    1.  The GA sits in a joint session to hear the evidence, but are we sure it votes at the end as one, 140-member body?  At the federal level, “joint session” very definitely does not mean that the Senate and the House vote as if they were one chamber.

    2.  When does the recount end?  If it ends before the GA opens its session, it will presumably have declared either Herring or Obenshain the winner.  When does the winner become AG?  Unless the unsuccessful candidate sues in court after the recount goes against him, won’t we already have an AG by the time the session starts?  But if the loser does sue and gets a judge to order that no one be instated as AG until the contest is settled in the courts, is it likely that the GA would pre-empt the courts?  Could the winner throw this to the courts as well before the session starts, by asking a court to order his instatement as AG?

    I don’t know any VA Con Law experts who might fill me in on the answers to these questions, so if any are any reading this, or if you know any, their answers would be appreciated not just by me, but by everybody worried about the outcome of this race.

    As a practical matter, I think we should worry a lot more about what the courts will do.  What Schapiro tells us about the judge supervising the recount having a personal connection to Obenshain is more concerning to me than this legislative scenario.  

    I don’t think that the GA would pre-empt the courts, would try to decide this while the matter was still being adjudicated by the courts.  And I really can’t see the GA reversing the courts after they had given this to Herring.  Sure, we have this contest in the GA as a provision of the VA Code, but we have a similar provision at the federal level, where the political stakes are even higher, but neither party has ever dared use the provision.  

    All such provisions to have legislatures decide elections are fossil remnants of an earlier era, before we put so much trust in courts to settle all matters.  That blind trust is what creates the real danger here of this election being stolen.  The hands-down best way to steal an election is to be a judge, or five of them, as in Bush v Gore.

  • The Richmonder

    Unless Obenshain can find a real, provable violation of election law to hang his contest on, any attempt to steal this election would be overturned by federal court and Obenshain would be forever disgraced as the man who tried to steal an election.

    I just don’t see it–it’s too risky when Obenshain can wait four years and walk into the RPV gubernatorial nomination.

  • The Richmonder

    Okay, let’s run with your scenario.  The recount is finished and Herring still leads Obenshain by about 164 votes.  No evidence of any malfeasance has been discovered–the election was very, very close, but there were no other substantive issues.

    Obenshain decides to contest the election in the General Assembly.  Why wouldn’t Cuccinelli contest?  Why wouldn’t Jackson contest?

    If all you have to do to throw an election in to the General Assembly is say “I contest,” then why wouldn’t the Republicans contest every election?  According to your argument, Cuccinelli should simply contest his election, and then the Republican-dominated General Assembly could just elect him over the heads of Virginia’s voters.

    Explain the difference between Herring vs. Obenshain and McAuliffe vs. Cuccinelli.  

  • pvogel

    I am not in the least worried.   The Virginia GOP is  b-t s–t  crazy,  but they are not insane.