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On November 25, 2013, the Virginia State Board of Elections certified the results of the attorney general race and declared Mark Herring (D) the winner. According to the certified vote totals, Herring defeated Mark Obenshain (R) by 165 votes out of 2.2 million cast.[1][2][3] A publicly-financed recount was ordered for the week of December 16, and Obenshain conceded on December 18. Judge Beverly W. Snukals, oversaw the recount court as it evaluated the ballot submissions from localities. Ultimately, the court upheld Herring's victory. According to the official recount results posted by the Virginia SBE, Herring beat Obenshain by 907 votes- a wide margin, in comparison to 165 vote difference calculated prior to the recount.[4][5][6]

Under state election law, the trailing candidate can request a recount if the margin of victory is less than 1 percent. If the margin is over half a percent, the candidate must pay for the recount.[7] Local election boards had until November 19, 2013 to certify their results and pass them onto the Virginia State Board of Elections, who faced a November 25 certification deadline.[8]

A recount in race for state attorney general had not been without recent precedent - in 2005 now-Gov. Bob McDonnell ran for the office against Creigh Deeds. The first result showed McDonnell with a victory of 323 votes, out of over 1.9 million votes cast. Deeds went on to file for a recount, which began on December 20, 2005. After preliminary figures revealed 37 additional votes for McDonnell, Deeds conceded, giving McDonnell a 360 vote margin of victory.[7]

In the event of a recount, elections officials double-check and re-add totals from voting machine records. During the 2005 recount, the returns from nine precincts were also examined by hand.[9] The recount cannot take place until after the vote is certified by the Board of Elections. Once that occurs, the apparent losing candidate has ten calendar days to file a recount petition with the Circuit Court of the City of Richmond.

The recount court, which determines the procedures of the recount, consists of the Chief Judge of the Circuit Court where the recount petition was filed and two other judges appointed by the Chief Justice of Supreme Court of Virginia. The court then appoints recount officials to represent the respective parties to the recount. Once all the votes cast are recounted, the court certifies the candidate with the most votes as the winner.[10]

Tracking the count

See also: 2013 Recount review: Herring's win seals Democratic sweep in Virginia
 :: Race for Virginia Attorney General remains too close to call

Late Tuesday night of election day - November 5, 2013 - Virginia Republican Party Chairman Pat Mullins sent out an e-mail congratulating Mark Obenshain (R), although neither he nor Herring had claimed victory or conceded. "We want to make sure all precincts are accounted for and results are accurate, all absentee ballots are counted and every Virginian who cast a provisional ballot has their voice heard," Herring said.[11] By Friday after election day, results were still inconclusive; it was reported that there were 8,363 absentee ballot requests in Fairfax County, but only 4,168 of those votes were counted. 50.3% is a very low percentage for return when neighboring districts 10 and 11 had a return rate of 88% and 86% respectively. With it being a heavily Democratic area, it was expected that the approximately 3,000 ballots that had not been counted were likely to result in Herring taking the lead. Another discrepancy was found in the total number of absentee ballots cast. A pre-election news story by WUSA-9 showed Fairfax County reporting over 24,300 absentee ballots case, while the state Board of Elections’ site had reported just 22,484 absentee ballots cast as of November 7.[12] By the end of the weekend it was reported that instead of absentee votes, the main problem in Fairfax began with a malfunctioning optical scan machine in the Mason Governmental Center on Columbia Pike. The machine began Tuesday in good shape but stopped working after 710 ballots had been cast. Those ballots were then fed into a working machine and voting continued on that machine. By the end of the day, that machine produced a total of 2,688 votes. When election results were counted, the county reported the 710 votes instead of the 2,688 votes meaning 1978 votes were left unreported. Bedford county also found sizable errors and added another 732 votes to the count after election night. The Republican leaning county added 581 of those votes to Obenshain.[13]

A major battle took place over provisional votes - ballots cast by people who did not have legally permissible ID at the polls. Voters who cast these ballots had until Noon on November 8 to show proper ID to their local election board and explain why they cast a provisional vote. Board of Elections staff also reviewed every provisional vote and it was up to the Board to accept or reject each ballot.[14] As of the evening of November 11, the Fairfax County Election Board had rejected 138 provisional ballots and accepted 172, with 183 left to evaluate.[15] Just weeks before the election the State Board of Elections initiated a purge of over 38,000 names from the voter rolls. Some local administrators reported finding hundreds of names that should not have been removed, which may have potentially increased the number of provisional ballots cast.[16] Both campaigns urged voters to certify their ballots to ensure their vote was counted.[17] Taking into account a rule change, the Fairfax County Electoral Board certified its results around midnight of November 12.[18] In the end, the board upheld 271 of the freshly scrutinized provisional ballots: 160 went to Herring and 103 to Obenshain.[19], boosting Herring to declare himself the race's victor, despite Obenshain's refusal to concede "the closest statewide election in Virginia history."[20][21]

Herring's original margin of victory was slim enough to activate Obenshain's right, as the losing candidate, to request a state-funded recount, which he did on November 27.[22][23] The recount began on December 16, and Obenshain conceded two days later in a news conference in Richmond. While the three-member recount court had not yet finished tallying votes, unofficial totals from December 18 showed Herring had gained almost 800 votes.[24] “It’s apparent that our campaign is going to come up a few votes short,” Obenshain told reporters.[25] His loss gave Democrats control of the office for the first time in nearly two decades.[26]

  1. Virginia State Board of Elections, " Election Results – General Election – November 5, 2013," accessed November 25, 2013
  2. Washington Post, "Herring wins Virginia attorney general race, elections board announces," November 25, 2013
  3. Blue Virginia, "Attorney General-Elect Herring: "I look forward to serving the people of Virginia as Attorney General," November 25, 2013
  4. Virginia State Board of Electiona, "2013 Attorney General Recount Race Results," accessed January 10, 2014
  5. Watchdog Virginia, "Undervotes loom large in AG recount bid," November 27, 2013
  6. The Richmond Times-Dispatch, "Obenshain lawyer raises possibility of contesting AG race," December 10, 2013
  7. 7.0 7.1 NYTimes.com: "A Virginia Recount Would Not Come Soon," November 8th, 2006
  8. MSNBC, Virginia Attorney General race still in limbo, November 7, 2013
  9. Cite error: Invalid <ref> tag; no text was provided for refs named TCTC
  10. Virginia State Board of Elections, " Virginia Recounts and Contests – the Basics," accessed November 6, 2013
  11. ‘’Newsplex,’’ UPDATE: Attorney General's Race Too Close to Call, November 7, 2013
  12. Washington Post, Possible discrepancy in Fairfax absentee votes could affect count in AG race, November 7, 2013
  13. Hampton Roads, Virginia attorney general race narrows further, November 11, 2013
  14. ‘’Talk Radio News Service,’’ “Provisional Ballot Battle Looms Ahead of Virginia Recount,” November 7, 2013
  15. Politico, "Tuesday deadline in Virginia AG race," November 11, 2013
  16. ‘’Washington Post,’’ “ Virginia election officials purging almost 40,000 voters,” October 17, 2013
  17. ‘’Leesburg Today,’’ “AG’s Race Cound Hinge on Provisional Ballots,” November 7, 2013
  18. Fairfax County of Virginia, "Statement From Fairfax County Electoral Board on Nov. 9, 2013," accessed November 12, 2013
  19. Fairfax County Virginia, "Statement From Fairfax County Electoral Board," November 12, 2013
  20. NBC Washington, "In Va. Attorney General Race, Herring Ahead by 163 Votes," November 12, 2013
  21. The Charlotte Observer, "Democrat Herring widens lead in Va.'s AG race," November 12, 2013
  22. Politico, "Mark Obenshain to request recount in Virginia attorney general race," November 26, 2013
  23. Politico, "Mark Obenshain weighs recount in Virginia attorney general race," November 25, 2013
  24. Watchdog Virginia, "Undervotes loom large in AG recount bid," November 27, 2013
  25. Washington Post, Obenshain concedes Virginia attorney general’s race to Herring, December 18, 2013
  26. Politico, "Mark Obenshain to request recount in Virginia attorney general race," November 26, 2013