Yesterday, we heard that Mark Obenshain’s high-priced, overeager attorneys raised, for the first time publicly, the prospect of contesting Virginia’s Attorney General election, “if the tally does not sway the result in the Republican’s favor.” Of course, first we have to see the results of the (inaptly-named) “recount,” because for all we know it could widen Democrat Mark Herring’s lead by thousands of votes, or it could theoretically vault Mark Obenshain into the lead. Still, the fact that Obenshain’s lawyers are even raising the prospect of contesting the election is outrageous, and makes it clear that changing Virginia’s code regarding contested elections should be a top priority of the 2014 Virginia General Assembly.
Currently, the Code of Virginia (e.g., the statutory law of our Commonwealth) has the following to say (in § 24.2-804) about contesting elections for Governor, LG or AG.
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.
As for the criteria and procedures to be followed in a contested election, § 24.2-803 spells out vague “objections to the conduct or results of the election accompanied by specific allegations which, if proven true, would have a probable impact on the outcome of the election.” Lame.
There are two major problems here that need to be rectified, ASAP. First off, the LAST body a contested election should be determined by is the partisan (whether Democratic or Republican-controlled) General Assembly. Instead, there should be a bipartisan or (preferably) nonpartisan committee or other body, possibly comprised of retired legislators and/or judges, that determines contested elections. That would take the decision largely out of the political realm and give the public confidence that there’s legitimacy in our electoral process. Right now, the way contested elections are decided, there would be very little confidence or legitimacy if, let’s say, an overwhelmingly Republican legislature decided an election contested in favor of a Republican (in this case, Mark Obenshain), even if the Republican trails by 165, 200, 300 votes…whatever. Same thing if it were the other way around, and an overwhelmingly Democratic legislature reversed SBE-certified election results to put a Democrat in office. Not acceptable.
Second, we need to make the criteria and procedures for contested elections a LOT more specific and rigorous than the loosy-goosy verbiage in the code right now (“objections to the conduct or results of the election accompanied by specific allegations which, if proven true, would have a probable impact on the outcome of the election”). That’s so vague, high-priced lawyers could drive a Mack truck through it. Instead, the code should spell out the exact “allegations” that would qualify, the magnitude and degree of such “allegations,” etc. Then, those “allegations” would be submitted to the (preferably) nonpartisan body noted above for analysis and ultimately a decision. No, it will never be perfect, but it would be a huge improvement over the unacceptable situation we’ve got right now.