Virginia election 2013: Attorney General race officially goes to recount

Herring (left) defeated Obenshain by 165 votes, the State Board of Elections says. Photos: Associated Press

RICHMOND, Va. (AP/WJLA) - Republican state Sen. Mark Obenshain asked for a recount Wednesday in his quest to overcome a 165-vote loss to Democratic state Sen. Mark Herring in the neck-and-neck race to become Virginia's next attorney general.

The closest statewide election in modern Virginia history is also expected to entail the state's most extensive recount. Attorneys for Obenshain promised a thorough but polite rivalry with Herring's attorneys to ensure that every ballot of more than 2.2 million cast Nov. 5 is properly accounted for.

"Here in Virginia, we try to be as civil as possible in our litigation and that carries over the recount process," said Stephen C. Piepgrass, a member of Obenshain's legal team.

And as Fairfax County gets its machines ready for the upcoming Attorney General recount, the greatest attention will not be paid on the optical ballots that get counted without a hitch, but rather the so-called “underballots.”

An underballot is a ballot that is rejected because it shows up as a blank ballot or an undervote, which occurs when a voter either did not vote or didn’t make their vote clear enough – like pointing to a name and marking “this one,” or circling a name but not filling in the bubble.

The reason paper ballots are now back in the mix is due to legislation championed by Senator Creigh Deeds following his 360 vote loss to Bob McDonnell in the 2005 race for Attorney General.

That prompted a move away from touch-screen machines and a move towards paper ballots that maintain a physical record of the voter's intent.

An estimated 712,000 paper ballots will be part of this recount -- 300,000 of which are in Fairfax County. The Obenshain campaign believes 25,000 to 50,000 undervotes exist{ } statewide.

"Our approach to this process is not to simply seek out areas that we think favor us. It's a process of conducting a fair and balanced recount," said an Obenshain rep.

One Democrat and one Republican in each district will determine which candidate, if any, deserves the undervote. Disputed ballots will be sent to a recount panel in Richmond.

Though Virginia does not have an automatic recount, a candidate can seek one at taxpayer expense if the victor's margin is less than one-half of 1 percent. The State Board of Elections on Monday certified Herring's 165-vote win, which represents a 0.007 percent edge over Obenshain.

Wednesday morning, Obenshain's attorneys petitioned for a recount with Richmond Circuit Court, whose chief judge will convene a recount court. The chief justice of the Supreme Court of Virginia will appoint two other judges to the panel.

The recount court, which is expected to conduct a hearing within seven days, will ultimately declare the winner.

The recount will likely occur in mid-December, involve every locality in the state and include an array of ballots cast - touch-screen, electronic recording machines and optical scanners. No locality uses punch-card ballots, whose hanging chads became part of the national political vocabulary during the 2000 presidential recount in Florida.

Absentee and provisional ballots will be counted by hand.