Why voting irregularities could swing the Virginia AG recount to Republicans

Matt K. Lewis Senior Contributor
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If you’re wondering why Virginia Republicans are willing to fight over the attorney general’s race, it’s because the post has become almost as important as the governorship. Not only could the outcome impact continuing legal issues surrounding the Affordable Care Act, it would likely impact the number of Republicans in the U.S. Congress.

Right now, Virginia has eight Republicans and three Democrats in the U.S. House. Prior to the redistricting — which was controlled by a Republican General Assembly and signed by Republican Gov. Bob McDonnell — Republicans held just a six-to-five majority. (Note: A couple of those races actually switched in 2010 — right before McDonnell signed the redistricting bill into law. But those seats are now presumably locked in place by redistricting.)

Democrat Mark Herring — should he become the attorney general — would most likely argue the lines were unconstitutional and must be redrawn. One could easily imagine that when the defendant (the state) agrees with the plaintiff, that the three-judge court panel currently litigating the case would be hard-pressed to disagree.

That explains why the stakes are so high, but it doesn’t explain why Republican Mark Obenshain — who is currently down by just 165 votes (in what was the closest statewide race in Virginia history) — might still become Virginia’s next attorney general.

“The suspected problems in this race are many and growing every day,” said a source familiar with the recount process.

There were three major irregularities that could swing the outcome — two of which occurred in Fairfax County.

First, Fairfax kept polls open for three extra days for provisional ballots. It is the policy of the Board of Elections that Virginia voters who aren’t on the rolls may cast a provisional ballot. But they must then prove their eligibility between Election Day and the following Friday at 5 p.m. (Fairfax kept the process open through Tuesday of the following week.)

Obenshain came into Fairfax up by about 60,000 votes, and Fairfax “just happened to be the one county where Mark Obenshain lost by 60,000 votes,” said the source.

The second problem is that every ballot is supposed to be filed with the clerk of the court by the day after the election. And all were, except in Fairfax county. “And again, it is Fairfax that keeps finding ballots,” says a source who is an expert on Virginia election law. “No one knows the chain of custody now.”

The third problem: Each year the state board of elections provides each locality with a list of voters to purge from their lists (this is to remove the names of people who moved, died, became felons, etc., in the last year or so.) Most counties largely complied with that directive, but some Democratic bastions — like the cities of Hampton and Charlottesville — allowed these names to remain on the books.

More than 1,800 names that should have been purged in these two cities alone, weren’t. That constitutes more than 10 times the current margin of difference between the candidates.

(Note: A judge just ruled that Obenshain’s campaign has the right to the polling books, which show who voted. The Herring campaign opposed this. But it’s one of the reasons Obenshain could actually pull off the recount.)

The good news for Republicans is that there are a couple ways they could still win. Obenshain could 1). win the recount — or, at least get closer (Suppose, for example, if Fairfax’s provisional ballots are thrown out), or 2). Pursue what is called the contest option.

In the second case, Obenshain could simply file a petition of contest with the Virginia General Assembly. The House and Senate would then be obliged to meet and hear the evidence. They could then award the election to one of the candidates — or (most people don’t know this) — they could order another election. This would require a simple majority of both bodies, and Republicans have a majority.

Now, should Obenshain pull this maneuver, one can be sure Democrats would cry foul and raise holy hell. They would say he “stole” the election. They would say it’s Florida 2000 all over again. Were it not for the voting irregularities in Fairfax County, and the fact that Congressional redistricting is on the line, this would probably not be a serious option. But my sense is that this is a very real possibility.

“It depends entirely on the narrative you put out,” Bob Roberts, a James Madison University political scientist told the Washington Post. “Clearly the Obenshain campaign is trying to create this narrative that somehow the election is entirely flawed. If you can sell that to the voters, that somehow all these registrars have messed up, then you’ve got a case you can take to the legislature.”

The recount starts on December 16th in some of the large jurisdictions, and the 17th on the rest. The judges meet on the 18th and 19th. By the 20th, they would likely declare a winner of the recount. If Obenshain wants to kick it to the Legislature, he would have to file by December 23rd.

It looks like it’s going to be an interesting Christmas in the commonwealth.

This post has been updated.