It's official. Democrat Mark Herring has won Virginia's election for Attorney General, by 165 votes. Final tallies were certified yesterday, but with such a thin margin, a recount may be on the horizon.
Or not. There is another way for Republicans to go with this, and that's to skip the recount and petition the very red state assembly to toss out the election results and simply choose one of the candidates to fill the office.
“If they can find a hook to demonstrate some sort of irregularity, then there’s nothing to prevent them from saying our guy wins,” says Joshua Douglas, an election law expert and professor at the University of Kentucky College of Law. “There’s no rules here, besides outside political forces and public scrutiny.”
An election contest is a specific post-election procedure for disputing the official outcome of an election. Different states have different rules for election contests–some put them in the hands of the courts, others in the hands of the legislature. Obenshain couldn’t simply contest the election out of the blue. He’d have to argue that some sort of irregularity affected the result. Still, Virginia law is relatively vague in explaining what would justify an election contest, and historical precedent suggests that co-partisans in the legislature are unlikely to reach a decision that hurts their candidate.
That hook could be one of several issues tied to the election, such as the error that "missed" 3,000 absentee ballots, or the real-time change to how provisional ballots were treated, causing election officials to extend the time for voters to come defend their ballots before the board.
Fairfax County Election Board member Brian Schoeneman appeared on TRMS Monday night to explain the logic behind a law allowing election results to be tossed and allowing the legislature to choose the winner. Like Rachel, I'm skeptical, especially when we still have Ken Cuccinelli overseeing all legal challenges to the election process.