We reported yesterday on the incredibly close race for Attorney General in Virginia. With more than 2.2 million votes cast, the margin between Mark Obenshain (R) and Mark Herring (D) has been within a few hundred votes since Election Night on Tuesday.

Within the last few hours, an unexplained discrepancy has been discovered by those combing over the reported numbers in Fairfax County. The county leans heavily Democratic and, unlike much of the rest of the state which uses 100% unverifiable touch-screen, Fairfax uses optically-scanned paper ballots for its main vote tabulation system.

After Democrats reportedly won both the Governor and Lt. Governor races, only the AG’s remains undecided at the top of the ticket. For the last 24 hours or so, the Republican Obenshain has been leading during the canvassing of ballots by about 700 votes, as absentee and provisionals are tallied and doubled-checked.

But now, thanks to some smart detective work by both a Democratic political team in Fairfax County and by Dave Wasserman of the non-partisan Cook Political Report, the fortunes for the Democrat candidate Herring may just have taken a big turn, even as a new mystery is added to the equation…

‘Missing’ Votes

Ben Pershing at Washington Post tonight reports what’s happened over the past few hours this way…

It remains unclear, according to WaPo, “whether a recording error occurred when Fairfax reported its numbers or when the state board recorded them.”

We would add the possibility of a tabulator error, given the history of the particular optical-scan systems in use in Fairfax County, but more on that in a moment.

“The more I look at the data, the totality of the evidence points towards the likelihood that there are [approximately] 3,000 untallied Fairfax Co. votes,” tweeted Dave Wasserman, political analyst at the Cook Political Report, tonight. He’s been going over the state’s reported numbers with a fine tooth comb — and a publicly crowd-sourced Google spreadsheet — since Election Night.

“And if there are indeed [approximately] 3,000 missing Fairfax #VA08 absentee votes, that’d almost certainly be the miracle Herring (D) needs to pull ahead,” he continued. “What a complete reversal of fortune in #VAAG race in just the last few hours.”

“The 2,500-3,000 missing votes happen to be from some of the most Democratic precincts in Fairfax County. Big margin for Herring,” tweeted Ben Tribbett tonight, who Wasserman lauded on Twitter. “No one knows Fairfax politics more intimately than” him, he said.

“It appears to me there is solid evidence of missing votes,” Tribbet observed, before later adding that he spoke tonight to the Republican election board member Schoeneman “and explained the issue to him.” Tribbet added: “Glad to have a Republican on Elec-Board making sure every vote counts.”

For his part, Schoeneman tweeted a “Thanks to Ben [Tribbet] and Dave [Wasserman] for their doggedness on this. I’m heading to bed, heading back in early AM.”

Bug in the Ointment Diebold Tabulators

As if it wasn’t clear previously, this race will likely end up in a “recount” no matter what. As if it wasn’t a certainty before, tonight’s events should seal the deal. Our report yesterday described the difficulty — if not impossibility — of “recounting” most of the votes cast across the state, thanks to the 100% unverifiable touch-screen systems in use in much of it. The best that can be done with those machines, by and large, is to push the buttons again to produce the same results they produced the first time. There is no way to know if any of the votes cast on those systems actually reflect the intent of any voter. And, to make matters worse there, as we reported on Election Day, a number of voters complained that the touch-screen systems were repeatedly checking the box for the Republican candidate as they were trying to vote for the Democrat.

But the largest single voting jurisdiction in the commonwealth is Fairfax County and the race is close enough that the results could flip just based on untallied votes in that one county alone. It also happens to be heavily Democratic, as noted by others above. So tonight’s discovery — whatever it turns out to be — could very well become unexpectedly good news for Herring.

One last point we should note for now. The optical-scan systems used to tally paper ballots in Fairfax County are, according to Verified Voting, made by Diebold/Premier. Those systems, as has been discovered elsewhere, have been known to simply drop entire stacks of ballots — potentially hundreds at a time — from the results without notice to the system operator. Worse, as Diebold once admitted to the state of California, ballots dropped by the system may not be noted at all in the system audit logs.

In other words, the only way to know whether or not the system recorded votes accurately is to count them by hand, even though Virginia’s recount law seems to require a computer re-tally of most votes that have been previously tallied by a computer [emphasis added]:

The specific VA statute notes, however: “The result calculated for ballots accepted by the tabulator during the recount shall be considered the correct determination for those ballots unless the court finds sufficient cause to rule otherwise.”

We don’t know what version of the Diebold optical-scan hardware and software may be in use in the Fairfax County systems, and if the particular bug discovered and confirmed in CA in 2008, has since been corrected in them. But it seems worth noting here, given the — for now — unaccounted for, seemingly “missing” ballots in the results.

Either way, the only way to know for certain that an optical-scan tabulating system has tallied ballots correctly is to count them by hand. Both candidates in this race would do well to prepare a pleading to the court to show “sufficient cause” for a full hand-count of the paper ballots in (at least) Fairfax County.

UPDATE: Just after publishing this story, Wasserman tweeted a few more times, with information from the Fairfax County Registrar that seems as if it could dovetail with the section of this report above about concerns with the tabulators. Here’s what he tweeted [emphasis added]: “Breaking: Fairfax Co. voter registrar Cameron Quinn concedes in email (I just obtained) that #VA08 absentee totals are ‘in error. … given that on 11/4/13 there were 2014 [Absentee Ballots] returned by mail & 5113 by in person, it appears the problem is the in-person numbers are incomplete, but this is pure speculation on my part. … I suspect there are machine totals that either didn’t print tapes, or didn’t show full tallies on the tapes. … I expect that the Electoral Board will make figuring out what happened the first order of business in the morning.'”

UPDATE 11/8/2013:: On Friday, officials in Fairfax began to make sense, or try to, of the “missing” votes. Indeed, there are just over 3,000 of them. But there was yet another surprise in another county as well. Full details now here…

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