Recount likely in razor-thin Va. attorney general race

State Sen. Mark Herring (D), left, and State Sen. Mark Obenshain (R). (AP Photos)

RICHMOND, Va. (AP) - The closest statewide race in modern Virginia political history is unlikely to end Monday when the State Board of Elections certifies the votes for attorney general. Of the 2.2 million ballots cast Nov. 5, the two candidates are a mere 165 votes apart.

Republican Mark Obenshain has signaled he will seek a recount in his razor-thin race with Democrat Mark Herring, though he hasn't directly said so. Obenshain could press the issue to the General Assembly if he wants to take it to the limits of the law.

Obenshain has given every indication he's digging in, even announcing a transition team after Herring had declared victory.

"With such a historically narrow margin, Virginia voters expect and deserve a careful process that ensures that every legitimate vote is counted," spokesman Paul Logan wrote in an email to The Associated Press.

Herring also has announced his transition team, vowing to "build an attorney general's office that works for all Virginians."

Ellen Qualls, a spokesman for Herring, said that process is "moving along."

"We anticipate the Herring victory will be certified on Monday - and no statewide recount has ever overturned a certified result," she said.

Obenshain represents the Harrisonburg area in the Virginia Senate. Herring represents parts of Loudoun and Fairfax counties. Both seek to succeed Republican Attorney General Ken Cuccinelli, who fell short in his bid for governor.

Virginia does not provide for an automatic recount, but a candidate can seek one if the margin of the certified vote is less than 1 percent. Localities pick up the costs of the recount if the margin is less than half of 1 percentage point, but the candidate picks up the tab if it's above that. Based on current State Board of Election numbers, taxpayers would pick up the cost.

If history is any indication, the chance of Obenshain overcoming Herring's edge is slim.

In the closest statewide race before this attorney general contest, Republican Bob McDonnell widened his lead over Democrat Creigh Deeds by several dozen votes in the 2005 race for attorney general. The two were 323 votes apart on election night.

Obenshain's best hope will involve challenges of ballots cast as absentees or provisional - those contested when they were cast because a voter lacked proper identification or because of questions involving proper polling place.

"I expect those issues will be raised and not the actual vote count," said Robert Roberts, a professor of political science at James Madison University. "The contest isn't going to be over the counting of the votes, but basically which votes should be counted, much like what happened in Florida."

The 2000 dispute in that state over presidential ballots famously focused on punch-card ballots, which became known for their hanging chads.

A possible target for an Obenshain recount would be provisional ballots counted in Fairfax County, despite Republican protests that the local election board extended too much time for voters who had cast those disputed ballots to argue their case. The tally widened Herring's lead.

The Fairfax County Electoral Board has defended its provisional ballot review, arguing it "followed the letter of the law as we understand it, even when we disagreed with the guidance we were given."

Obenshain also will likely target absentee ballots, Roberts said, based on how local election boards handled them. The so-called chain of custody of an absentee ballot would likely be examined by attorneys representing Obenshain in a recount.

The State Board of Elections and state law clearly spell out the steps required when counting absentee ballots, including alerting local political party chairs of the processing of absentee ballots so they can authorize a witness for the count.

Overseeing everything would be a recount court. It would include the chief judge of the Circuit Court where the recount petition was filed - Richmond, in this case - and two other judges appointed by the chief justice of the Virginia Supreme Court. A candidate has 10 calendar days after certification to request a recount.

"The authority of the recount court is fairly broad," Roberts said. "You can raise whatever issue you want before the court. Now, whether they act on that remains to be seen."

Virginia law also provides for an unsuccessful candidate to "contest" the election, based on "specific allegations which, if proven true, would have a probable impact on the outcome of the election."

That sends the disputed election to the majority Republican General Assembly, which would meet in joint session.

"They can reverse the election, declare somebody a winner, or order a special election - do it all over again," Roberts said.

In a news release, Obenshain has outlined the possible steps he can take to ensure a thorough count, up to the recount. He has not outlined any steps beyond that point.