Virginia’s attorney general race could end up in General Assembly

Strategy could have consequences if used to settle razor-thin margin

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A razor-thin margin in the Virginia attorney general’s race could ultimately put the decision about a winner before the General Assembly — but the rarely used strategy of contesting an election comes with its own political consequences, analysts say.

With Democrat Mark R. Herring leading Republican Mark D. Obenshain by 0.007 percent of the total statewide votes, whichever candidate is trailing when the state certifies the election results Nov. 25 is all but certain to call for a recount. And depending on the results, the candidates could conceivably contest the election.

Virginia law gives the General Assembly wide latitude to act after hearing a candidate’s case. Lawmakers have the authority to reject the appeal, to order a new election or even to declare a winner — whether it is the candidate who held the lead or the candidate who contested the election.

But the bar for success is extremely high. The law states that a candidate must detail “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 a heavy burden,” said former Virginia Attorney General Anthony F. Troy. “A contest, you have to demonstrate not that a vote was cast that shouldn’t have been cast, but the results — the outcome — would have been different.”

GOP lawyers appeared to be laying the groundwork for a possible claim Tuesday as Fairfax County tallied its provisional ballots. Attorney M. Miller Baker called the electoral board’s approval of such ballots an “extraordinary, unprecedented move and said that, while the board’s efforts to get as many voters included in the final certification was laudable, it raised questions about whether the state was providing equal protection for voters.

“Fairfax voters are receiving more-lenient, more-preferential treatment than other voters in Virginia,” he said. “All Virginia voters are accorded the same treatment. That is not happening here today.”

At a news conference this week, Mr. Obenshain refused to speculate on whether he would call for a recount, and when asked about action beyond that he said it was “premature” to state intentions.

The move could be politically risky as well.

The Herring camp on Thursday issued a news release citing editorials in The Washington Post and the Richmond Times-Dispatch urging both sides not to pursue a legal case. The attorney general’s position has long been a launching point for gubernatorial bids, and a protracted struggle could tarnish the candidates and damage their future ambitions.

“I don’t believe in recent history any Virginia candidate has brought a contest,” said John Hardin Young, an election administration lawyer who was part of Al Gore’s legal team during the recount of the disputed presidential election in Florida in 2000.

Mr. Young also said he thought the chances were “remote” that a recount would change the outcome.

In the 2005 race for attorney general, Republican Bob McDonnell picked up 37 votes in a statewide recount out of about 1.9 million ballots cast and defeated Democrat R. Creigh Deeds by 360 votes.

In the only other statewide recount in modern Virginia history, Republican Marshall Coleman shaved only 113 votes from Democrat L. Douglas Wilder’s 7,000-vote advantage in the 1989 governor’s race.

Michael P. McDonald, an associate professor of government and politics at George Mason University, said if the margin shrinks any more after a recount, he could imagine Mr. Obenshain going to the General Assembly to contest the election.

He said that in the wake of the recount he also could foresee possible lawsuits which could start quickly if one of the candidates pursued that path.

“We may see filings even before the state board results,” he said, adding that watching lawyers across the state monitoring provisional ballots could be a harbinger.

Mr. Troy, however, was skeptical about a lawsuit.

“I’ve been handling election laws for years, and I’ve never heard of a situation where a state was sued because someone did not like the way it conducted an election,” he said.

Regardless of the route the candidates take once the results are certified, Mr. Troy said one goal should remain in the minds of everyone involved.

“”The key motivation here for everyone should be, there comes a time when the electioneering ends and the governing begins,” Mr. Troy said.

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