The lawyer representing Republican Mark D. Obenshain in the pending statewide recount in the attorney general race on Monday for the first time openly raised the issue of contesting the election in the General Assembly if the tally does not sway the result in the Republican’s favor.
During a hearing in Richmond, William H. Hurd, head of Obenshain’s legal team, told the three judges who will oversee the recount that it is “critically important” for his team to get full access to data from electronic poll books because Dec. 23 marks the deadline to formally challenge the election results in the legislature.
The court previously set Dec. 17-18 for the statewide recount, giving Fairfax County a one-day head start. The three-judge panel will review any challenged ballots Dec. 19, leaving a candidate only three days to announce a contest — a rarely used provision in state law.
Obenshain requested the recount in what is regarded as the closest race in modern Virginia history after his opponent, Democrat Mark R. Herring, maintained a lead of just 165 votes of more than 2.2 million votes cast — a margin of just 0.007 percent.
If he loses the recount, Obenshain could ask a joint session of the General Assembly — which is dominated by Republicans — to reverse the results. Under state law, grounds for a contest include objections to “the conduct or results of the election accompanied by specific allegations which, if proven true, would have a probable impact on the outcome of the election.”
In an interview after the hearing, Hurd did not say whether Obenshain would pursue this option, adding that such speculation is based on “the unsubstantiated assumption” that the Republican would lose the recount.
Obenshain spokesman Paul Logan called talk about a contest “premature.”
But Hurd’s request to obtain electronic copies of poll books appears to indicate that a contest is not off the table. Poll books play no role in a recount but could become an important tool in identifying electoral irregularities, which would be the basis for a contest.
Hurd also expressed concerns with the “integrity” of the electoral process in Fairfax County after reports that “election materials, including counted and unused ballots,” remained unprotected by the legally mandated security measures for nearly a month after the election.
Hurd asked the court to set aside these ballots — possibly thousands — to not be tallied in the recount until election officials in Fairfax provide an explanation. “We need to find out what happened,” Hurd said after the hearing.
The court granted Hurd’s request to gain full access to the poll books, but rejected his motion to set aside the Fairfax ballots, first allowing local officials and Herring’s legal team to comment.
Herring’s attorney Kevin J. Hamilton called Hurd’s motion “nothing but an effort to distract.”
“The idea to set aside thousands of ballots and not count them is ridiculous,” Hamilton said in an interview. “I’m not worried about that. We’ll have an orderly recount and in the end, Mark Herring will be the next attorney general.”
Obenshain has “the right to file for an election contest,” Hamilton said. “But there is no basis to it here, there is no serious issue.”
The recount court — headed by Richmond Circuit Judge Beverly W. Snukals, who was flanked by Judge Junius P. Fulton III of the 4th Judicial Circuit and Judge Joseph W. Milam Jr. of the 22nd — also established additional rules for the statewide tally that begins next week.
The court agreed to allow Chesapeake and Alexandria to begin their recounts Dec. 16, when Fairfax County is recounting its ballots. Both cities have tens of thousands of ballots that need to be hand-counted.
The court also defined the role of partisan observers in the recount. They must follow guidelines laid out by the State Board of Elections, allowing them to take notes and watch the bipartisan election teams retabulate the ballots.
Snukals said the observers are not allowed to converse with the election teams or flag ballots to them — as Hurd had requested — and must direct all questions and concerns to the supervisors.
The court will review and rule on all challenged ballots on Dec. 19.