I’ll take friendly issue here with my friend and colleague Andy Schmookler for his recent column on the still too-close-to-call Virginia attorney general race (“Andy Schmookler: I’m betting on Mark Obenshain acting honorably,” Nov. 21 AFP).
I don’t see any dishonor if Obenshain, a Harrisonburg state senator, decides after a recount to contest the result in the Virginia General Assembly.
The controversy that has resulted from the interpretations of the vague state laws governing a contest has all the makings of much ado about not much. Yes, the law offers little guidance on what constitutes actionable irregularities, and yes, the solution in the state code ultimately gives the majority of the General Assembly, in Virginia dominated by a huge House GOP majority, the final say.
The suggestion that Obenshain is just waiting to play this as his trump card is a bit much to digest.
I’m assuming that there will be a contest in saying this, too. I’d contest an election with the margins being what they are. We’re talking about 160 or so votes out of more than 2 million votes having been cast. There are issues to wade through involving how different localities handled provisional votes. It wouldn’t take much for a few provisional votes here, and a few more provisional votes there, to affect the final outcome.
That said, decisions involving provisionals were made by local electoral boards, which are, yep, by Virginia law set right now at 2-1 majorities in favor of Republicans, since there’s currently a Republican in the governor’s mansion.
Which is to say, we’ve already had a chance for partisanship to play a role in determining the outcome of the AG race, and Mark Herring, the Democrat, is still the one in the driver’s seat.
I fully expect the State Board of Elections to certify Herring as the winner on Monday, for Obenshain to file for a recount, for Herring to be confirmed as the winner in the recount, and then depending on what the final margin is for Obenshain to at least very strongly consider a contest.
And if there’s a contest, I expect the state legislature to treat the matter not as a matter for partisan posturing, but getting it right.
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