A three-judge panel has set the rules for next week’s statewide recount of the Attorney General’s election between Democrat Mark Herring and Republican Mark Obenshain. With a historically narrow 165-vote margin separating the two men, the details were strategically important to the candidates’ lawyers-who spent hours on Monday arguing their positions at a Richmond hearing. The recount will include examination of thousands of undervoted ballots-to determine if no votes were cast for that office or if the machines did not read them the first time.
The judges ordered Alexandria and Chesapeake to begin one day early since they must hand-count thousands of paper ballots. They also gave the campaigns broad access to pollbooks, as requested by Obenshain attorney William Hurd.
“There’re some other materials, too, that the court said we could obtain involving absentee ballots, provisional ballots, incidents that occurred on Election Day that are recorded. It’s a big victory. It means we don’t have to sit there and go through the documents in the office of the clerk, but the copies will be made and made available to us.”
For the first time, Hurd raised the possibility of an electoral contest decided by the General Assembly-hence the need for a thorough review. He also said partisan recount observers should be able to point out potential errors. But the judges agreed with Herring attorney Kevin Hamilton to limit observers to sharing concerns with election coordinators.
“We’re delighted that the court is setting these rules. We’re looking forward to an orderly and efficient recount as provided in Virginia law. And we’re confident at the end of that recount that Mark Herring is going to be the next attorney general.”
The court ordered that the standard of doubt for a disputed ballot will be when election officials can’t agree or cannot determine what a ballot says. The judges decided to begin examining disputed ballots on December 18th.
Obenshain’s attorneys also raised a new issue: that Fairfax County did not deliver all votes and unused ballots to the clerk of the circuit court to secure them on the day after the canvass-in violation of state law. The clerk’s certification says that he also took election materials and votes into his custody on November 20th and 26th and December 5th. Obenshain’s attorneys made a motion to set those ballots aside temporarily until the Fairfax electoral board explained what happened. The judges declined to act until county officials responded to the concerns.