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Obenshain Legal Team Raises Prospect Of General Assembly Deciding Election

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Republican Mark Obenshain is trailing Democrat Mark Herring by 165 votes, out of 2.2 million cast.
(AP Photo/Steve Helber)
Republican Mark Obenshain is trailing Democrat Mark Herring by 165 votes, out of 2.2 million cast.

In Virginia, 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 only 165 votes of the 2.2 million cast separating the two, the details were strategically important to the candidates lawyers who spent hours on arguing their positions at the hearing in Richmond. One point of contention was undervotes, with both sides arguing over how the ballots should be examined to determine if no vote was cast or the machines didn't properly read them on a first try.

At the hearing, 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 poll books, as requested by Obenshain attorney William Hurd.

"There are 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," he said.

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 on limiting 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," he said.

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 18.

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