- The Washington Times - Monday, November 25, 2013

The Virginia State Board of Elections on Monday declared Mark R. Herring the winner of the state’s attorney general’s race in the closest contest in state history despite concerns expressed by the board’s chairman about the canvassing process.

The three-member board unanimously certified the results of the Nov. 5 election, which gave the Democrat a 165-vote advantage out of more than 2.2 million ballots cast, during a morning meeting in Richmond.

Mr. Herring, who declared victory Nov. 12, said in a statement he was “gratified” by the results and that he looked forward to serving Virginia residents and laid out a broad plan for when he takes office.

“Our guiding principle will be to put the law and Virginians first, instead of adherence to extreme ideology,” he said. “In the areas of public safety, veterans services, civil rights, consumer and small-business protections, and ethics in our public sphere, significant progress can and will be made for Virginians.”

Republican candidate Mark D. Obenshain did not immediately say whether he planned to call for a recount. Mr. Obenshain is entitled to a recount because the margin was less than 1 percent of the vote. He has 10 days to make the call.

In a statement, his campaign pointed out that in the past 13 years four statewide elections in the country have had margins of fewer than 300 votes, and in all four of those elections “the results were reversed in a recount.”

“Margins this small are why Virginia law provides a process for a recount,” Obenshain campaign manager Chris Leavitt said. “However, a decision to request a recount, even in this historically close election, is not one to be made lightly.”

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.

Mr. Obenshain could also choose to contest the election — a process that would put the race before the Republican-controlled General Assembly.

During Monday’s meeting, elections board Chairman Charles Judd voted to certify the results “with question,” citing concerns he had about the “integrity of the data.”

The Richmond Times-Dispatch reported that Mr. Judd said he had reservations about the canvassing in heavily Democratic Fairfax County, which Mr. Herring won easily. He said the county’s electoral board allowed voters with provisional ballots more time than other jurisdictions to prove their votes should be counted.

“We intend to explore that in our meeting next week,” he said. “I’m concerned about the lack of uniformity because of that. I think it’s very important that we have uniformity statewide.”

Brian W. Schoeneman, secretary of the Fairfax Electoral Board, said his board “scrupulously followed the spirit and letter of the law as we understand it.”

Mr. Judd, a Republican, told The Times-Dispatch that he did not make his comments to encourage a challenge of the election results.

“This is not intended to affect any procedure that might occur from here on out. What we did was today was ascertain the election. These folks are all duly elected as far as the board is concerned,” he said.

Virginia law states that a candidate contesting a race 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.”

The law gives the General Assembly wide latitude to act after hearing a candidate’s case in a contested election. 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.

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