- The Washington Times - Wednesday, November 13, 2013

Elections officials in Arlington acknowledged Wednesday that the county’s electoral board accepted more than a dozen provisional ballots in which a voter’s name had been checked off mistakenly as already having voted, a discrepancy apparently chalked up to errors by poll workers.

Registrar Linda Lindberg said a new system using bar codes this year might have confused poll workers and caused IDs to be scanned more than once. She said officials in the heavily Democratic county are looking more specifically into the source of the issue.

The uncertainty over a reported 17 ballots — ordinarily a minor anomaly in a race in which 2.2 million ballots have been cast statewide — takes on added significance in a Virginia attorney general’s race in which just 164 votes separate the two candidates.

With all jurisdictions reporting results by the midnight Tuesday deadline, the State Board of Elections said Wednesday that Democrat Mark R. Herring took 1,103,777 votes compared with 1,103,613 for Republican Mark D. Obenshain. Mr. Herring declared victory, leading to posturing from both campaigns.

Mr. Obenshain said during an afternoon news conference in Richmond that it would be foolhardy to claim a win at this stage of a historically tight race, noting that 123 votes shifted during canvassing by the state board in the course of a contest for attorney general in 2005 that ultimately was decided by 360 votes.

“That kind of swing could change the outcome of this race,” Mr. Obenshain said. “I don’t know who is going to move into the attorney general’s office in January, and despite what Mark Herring says, he doesn’t know either.”

The Republican said it was too soon even to call for a recount, with the state having until Nov. 25 to certify the results. He also suggested that if Mr. Herring believed his victory was assured, he would resign his state Senate seat.

“I understand he is ahead at the second stage of this automatic process,” Mr. Obenshain said. “But actions speak louder than words, and rather than put forth a sense of bravado it would behoove us all to wait and see the total at the end.”

Nevertheless, both campaigns on Wednesday named transition teams as they prepare for a final determination of the winner.

Only after the results are certified by the state can the losing candidate call for a recount. The margin must be less than 1 percent of the vote, and the candidate has 10 days to make the call. Mr. Obenshain said the difference in votes between himself and Mr. Herring amounted to 0.007 percent of the votes cast last week.

During a count of provisional ballots in Fairfax County on Tuesday, Republican attorneys expressed concern that election laws were applied unevenly throughout the commonwealth.

Despite the slim margin, Mr. Obenshain on Wednesday would not commit to any legal recourse — or even a recount — until the board certifies the votes.

“I think it would be premature for stating my intention to call for a recount or to file a lawsuit or any other concrete plans until we know what the state board of elections concluded,” he said.

Mr. Obenshain’s hesitance on action might not be entirely without merit. Glitches or oversights — like the kind that might have occurred in Arlington — are the purpose of the review of every ballot cast last week, said Michael P. McDonald, associate professor at George Mason University’s Department of Public and International Affairs.

He said not calling for a recount would be negligent on the part of whichever candidate ends up behind after the state certifies the vote.

“That’s what a recount is all about,” Mr. McDonald said. “Make sure all the i’s are dotted, all the t’s are absolutely crossed, and there’s no possibility there’s anything else out there we don’t know about. It’s going to be close from this point right here.”

When a recount is called, the State Board of Elections first sets the standards for the handling, security and accuracy of the tally. A three-member “recount court” is formed in Richmond and is headed by the chief judge of the Richmond Circuit Court. Two additional circuit court judges are appointed to the board by the chief justice of the Virginia Supreme Court.

The recount court sets the standards for determining the accuracy of the votes and certifies the election results. Its ruling is final and cannot be appealed, according to Virginia law.

Paper ballots are recounted by hand, the printouts from electronic voting machines are reviewed, and the optical scan tabulators are rerun through a program that counts only the votes for the race being scrutinized.

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, said that despite the time needed for a recount, Virginia “has never had an instance where a statewide candidate did not take office because of a pending recount.”

“The target has been Dec. 21 in the past,” he said, adding that if a recount might seem onerous, it’s to be expected in a purple state.

“Where you have close elections is where you have an evenly divided state like Virginia, that is not only equally divided, but slightly changing,” he said. “That’s what you would expect in a vibrant democracy.”

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