Election 2013 is but a memory --- good or bad --- for much of the nation. But, in Virginia, election officials, attorneys and partisans will still be busy as elves throughout much of the holiday season, and potentially even beyond, determining final results of the statewide November 5th Attorney General's election this year.
Last week, on the day before Thanksgiving, Virginia's Republican AG candidate Mark Obenshain filed for a recount [PDF] of the incredibly close race at the Richmond Circuit Court. Two days prior, his Democratic challenger Mark Herring had been certified by the state as the winner of the race by just 165 votes out of more than 2.2 million votes cast early last month.
Should those state-certified results hold, Herring would replace Republican Ken Cuccinelli as Virginia's AG. Cuccinelli was unsuccessful in his own run for Governor in November against Democrat Terry McAuliffe. Along with the Democratic win in the Lt. Governor's race as well, a Herring victory would result in the first time since 1969 that Democrats held all three statewide offices, and the first time in twenty years that Virginia will have a Democratic AG.
A "recount", in Virginia, however --- as we've documented previously (see last section of this article) --- amounts to much less than it may seem, given the technology used in the state and some of the ridiculous "recount" laws specified by the Virginia election code [PDF].
As bad as those "recount" statutes are, however, a margin of 165 votes could certainly be reversed, even in a state where most votes are currently recorded (either accurately or inaccurately, who knows?) by 100% unverifiable Direct Recording Electronic (DRE, usually touch-screen) voting systems, and where the rest are tallied (either accurately or inaccurately, who knows?) by paper-ballot optical-scan tabulators that will be used once again to "recount" (either accurately or inaccurately, who knows?) most of the state's paper ballots.
Yes, that's right. Hundreds of thousands of 100% unverifiable electronic votes cast in the closest statewide race in VA state history cannot be "recounted" now in any meaningful way. For those votes, state election code specifies that, during the "recount", election officials will merely recheck the voting machine computer printouts from Election Night to make sure the certified results match. Meanwhile --- and short of a court order --- votes that were cast on paper ballots will simply be run through the same optical-scan computers that tallied them the first time, after they've been reprogrammed to set aside all ballots which the scanner sees as an over vote, an under vote or a write-in vote in the AG's race. Those set aside paper ballots, at least, will then be examined by hand, in public, by actual human beings.
As ridiculous as the VA "recount" statute is, the "contest" law --- another procedure which the candidate who loses the "recount" may file thereafter --- is even more ridiculous. But, depending on the results of the "recount", that may be the only option Obenshain is left with...and it could result in a GOP "victory", even with fewer recorded popular votes, presuming there are enough heavily partisan Republicans in the VA state legislature...