- The Washington Times - Wednesday, November 27, 2013

Republican Mark D. Obenshain on Wednesday filed a petition asking for a recount of the results in this month’s attorney general’s race — a contest separated by just 165 votes.

In an 11-page petition and memorandum filed in Richmond Circuit Court, Mr. Obenshain’s lawyers stated that “the razor-thin margin, the need for accuracy and public confidence in the outcome require that a recount be held.”

The race was the closest in Virginia history, with the candidates separated by 0.007 percent out of more than 2.2 million votes cast.

Democrat Mark R. Herring was declared the winner of the attorney general race on Monday by the Virginia State Board of Elections, though board Chairman Charles Judd voted to certify the results “with question,” citing concerns he had about the “integrity of the data.”

Virginia law allows a losing candidate to request a recount if the margin is less than 1 percent of the vote.

Mr. Obenshain’s campaign pointed out that in the past 13 years four statewide elections in the country have had margins of fewer than 300 votes, and three of them were reversed after a recount.

“As we’ve seen in other races with a margin this slim, this result could easily change when it’s all said and done,” said Paul Logan, an Obenshain campaign spokesman.

The recount process begins with the State Board of Elections setting 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, Judge Bradley B. Cavedo.

“As soon as the petition is filed the process begins for the recount court,” said Stephen C. Piepgrass, a member of Mr. Obenshain’s legal team. “We’ve been in touch with the Herring campaign and worked to make sure all of the procedures are agreed to and followed properly.”

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.

“The recount itself takes place in mid-December but it is up to the court when that is held,” Mr. Piepgrass said.

The ballots will be recounted in each precinct, Mr. Piepgrass said, adding that recount officials and campaign observers will be present at each location. Most jurisdictions should be able to complete the process in a day, but some could take two or three days.

The 165-vote margin comes to less than two votes per county.

Many jurisdictions use electronic voter machines with touchscreen ballots. The tapes from those machines will simply be retallied. But some places also use optical scan ballots in which voters fill in a bubble to choose a candidate.

The optical scan tabulators are rerun through a program that counts only the votes for the race being scrutinized. The recount will look for any ballots that might not have been read by the machine because they were damaged or torn or because the voter attempted to change a selection.

The nonpartisan Virginia Public Access Project estimated about 712,000 paper ballots would need to be rerun through optical scan machines.

The campaign also drew special attention to “undervotes,” in which a voter did not appear to have made a choice in all the elections on the ballot. The lawyers said it was possible that a voter could have indicated their preference with an arrow or a check rather than filling in the bubble, and the machine did not register the mark even though their preference was clear.

Disputed ballots will be sealed and sent to Richmond for the recount court to decide.

Officials also will hand count absentee and provisional ballots, which are on paper.

During the initial ballot certification, Republican observers were critical of the way Fairfax County’s Electoral Board handled provisional ballots and the “extraordinary” lengths the county went to make sure votes were counted — sentiments also shared by Mr. Judd when making his personal statement during the election certification.

Asked whether they anticipated more problems with the large jurisdiction, Ashley L. Taylor Jr., a member of Mr. Obenshain’s legal team acknowledged concerns could arise as the recount progresses but said at this point it’s “premature to focus on any single jurisdiction and those ballots.”

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