Update: Virginia attorney general race looks destined for recount

Nov 15 2013

By The State Executive Official Team

RICHMOND, Virginia: With 100 percent of precincts reporting, unofficial results from the Virginia State Board of Elections show Mark Herring (D) leading Mark Obenshain (R) in the race for Attorney General by less than 110 votes out of over 2.2 million cast.[1]

Since last Tuesday’s election, a major battle has taken place over provisional votes – ballots cast by people who did not have legally permissible ID at the polls. Voters who cast these ballots had until Noon on November 8 to show proper ID to their local election board and explain why they cast a provisional vote. Board of Elections staff also review every provisional vote and it is up to the Board to accept or reject each ballot.[2] As of the evening of November 11, the Fairfax County Election Board had rejected 138 provisional ballots and accepted 172, with 183 left to evaluate.[3] Just weeks before the election the State Board of Elections initiated a purge of over 38,000 names from the voter rolls. Some local administrators reported finding hundreds of names that should not have been removed, which may have potentially increased the number of provisional ballots cast.[4] Both campaigns urged voters to certify their ballots to ensure their vote was counted.[5]

Although Virginia Republican Party Chairman Pat Mullins sent out an e-mail congratulating Obenshain late Tuesday night on election day, neither candidate claimed victory or conceded. “We want to make sure all precincts are accounted for and results are accurate, all absentee ballots are counted and every Virginian who cast a provisional ballot has their voice heard,” Herring said.[6]

Taking into account a rule change for counting provisional ballots, the Fairfax County Electoral Board certified its results around midnight of November 12.[7] In the end, the board upheld 271 of the freshly scrutinized provisional ballots: 160 went to Herring and 103 to Obenshain.[8] The certification gave Herring enough of a boost in the statewide totals that he declared himself the race’s victor, despite Obenshain’s refusal to concede “the closest statewide election in Virginia history.”[9][10]

With these results, the State Board can begin reviewing the local vote totals.[11]


Under state election law, the trailing candidate can request a recount if the margin of victory is less than 1 percent. If the margin is over half a percent, the candidate must pay for the recount. [12] Local election boards have until November 19, 2013 to certify their results and pas them onto the Virginia State Board of Elections who then certifies them by November 25. [13]

A recount in race for Attorney General is not without recent precedent – in 2005 now-Gov. Bob McDonnell ran for the office against Creigh Deeds. The first result showed McDonnell with a victory of 323 votes, out of over 1.9 million votes cast. Deeds went on to file for a recount, which began on December 20, 2005. After preliminary figures revealed 37 additional votes for McDonnell, Deeds conceded, giving McDonnell a 360 vote margin of victory.[12]

In the event of a recount, elections officials double-check and re-add totals from voting machine records. During the 2005 recount, the returns from nine precincts were also examined by hand.[14] The recount cannot take place until after the vote is certified by the Board of Elections. Once that occurs, the apparent losing candidate has ten calendar days to file a recount petition with the Circuit Court of the City of Richmond.

The recount court, which determines the procedures of the recount, consists of the Chief Judge of the Circuit Court where the recount petition was filed and two other judges appointed by the Chief Justice of Supreme Court of Virginia. The court then appoints recount officials to represent the respective parties to the recount. Once all the votes cast are recounted, the court certifies the candidate with the most votes as the winner.[15]