(AP) — A three-judge panel overseeing a recount of Virginia’s historically close race for attorney general established ground rules Monday for the statewide tally, defining the role of partisan observers, giving two more localities a head start on the recount and speeding the court’s review of disputed ballots.
The prospect of a “contested election” — in which the General Assembly decides the outcome — also emerged at the hearing.
The recount court heard arguments from attorneys for Republican Mark Obenshain and Democrat Mark Herring, who leads his fellow state senator by a scant 165 votes out of more than 2.2 million ballots cast on Nov. 5. Obenshain sought the recount in the closest statewide race in modern Virginia political history.
The recount is scheduled to begin Dec. 16 in Fairfax County, the state’s most populous county, with the rest of the state joining in the recount over the next two days, Dec. 17 and 18. The court also gave a head start to Alexandria and Chesapeake. The localities either have a large number of ballots to count, a complex array of voting machines or hand counting of ballots — all of which is expected to take longer to count.
Arguments between opposing attorneys boiled down to Obenshain’s campaign seeking to push more disputed ballots to Richmond for the court to settle, while Herring’s campaign has attempted to limit those.
In one key dispute, for instance, Obenshain attorney William H. Hurd asked the judges to allow observers assigned by both campaigns to oversee the local recounts to “suggest” to local election boards that a ballot should be sent to Richmond as disputed. It was opposed by Herring attorney Kevin J.Hamilton, who called it a “bad idea” to have partisan observers advising trained election officials. He said it would flood the court with challenges.
“This is not a public forum,” Hamilton objected. “It’s a recount.” Hurd, he added, was attempting to “litigate every ballot.”
The judges said the observers could watch the recount, bring their concerns about individual ballots to local recount coordinators and text or email their bosses as the recount was underway — but could not recommend that a particular ballot be considered as disputed.
The judges also defined what election materials could be examined by either camp.
While Hurd argued that some of the local election materials he was seeking would not be subject to the recount, they would be needed if a recount narrowed the margin to Obenshain’s advantage and he decided to seek a “contested election.”
That would put the race before the General Assembly, where Obenshain would have a distinct advantage over Herring in the Republican-majority Legislature.
The deadline to file for a contested election is Dec. 23, which Hurd said made the timely collection of those materials critical.
Hamilton argued against Hurd’s request, saying some of the materials he was seeking are not relevant in a recount.
Outside of court, Hurd would not speculate how many votes Obenshain would have to gain on Herring to seek a recount.
It was the first time, however, the Obenshain camp has publicly discussed the prospect of a contested election before the General Assembly.
The judges did not grant the campaigns access to all the election records Hurd had sought.
The court had already scheduled its first session to rule on disputed ballots on Dec. 19, but decided Monday it would begin acting on disputed ballots as they arrived from localities once the recount was underway.
In a separate issue, Hurd said he was informed that some ballots in Fairfax County had not been properly handled under state election law. He asked the judges to set aside the ballots until Fairfax County elections officials could explain how that happened.
Hamilton objected, arguing that the ballots were cast by “lawful voters who cast lawful ballots.”
The judges did not immediately act on that request.
The judges on the recount court are from circuit courts. They are Judge Beverly W. Snukals, who sits in Richmond; Judge Joseph W. Milam Jr., who is on the bench in Danville; and Norfolk Judge Junius P. Fulton III.
-STEVE SZKOTAK, Associated Press