GOP-requested review of several precincts in Richmond City gives Mark Herring (D) edge over Mark Obenshain (R)...
By Brad Friedman on 11/11/2013, 1:18pm PT  

For the first time since the bulk of votes were tallied in Virginia on Election Night last Tuesday, the Democratic candidate for Attorney General, state Sen. Mark Herring appears to now have taken the lead over Republican state Sen. Mark Obenshain in the razor-thin results of more than 2.2 million votes cast.

Herring just barely leap-frogged Obenshain's totals on Monday afternoon after tallies from a voting machine in the city of Richmond --- the results of which had been previously missing from official tallies since Election Night --- were added to the running totals. The addition of 190 votes from electronic voting machine #3791, plus a few other votes from seven other precincts re-reviewed by Richmond City's Electoral Board on Monday, resulted in what now appears to be a 115 vote lead for Herring over Obenshain.

While the results posted by State Board of Elections (SBE) do not yet reflect that change in the state tally (showing, instead, a 17 vote lead for Obenshain for now), a number of election experts following and closely documenting the post-election canvassing and correction of vote tallies from across the state have confirmed Herring's new lead. Those experts have been consistently and accurately ahead of the SBE in reporting results in many cases over the past week.

[Update, 9:50pm ET: The SBE website now shows Herring up by 117, as predicted. The extra two votes were from provisional ballots added to the tally in Montgomery County.]

Ironically, the review of the poll tapes printed out by the tabulation computers from eight different precincts in very-heavily Democratic-leaning Richmond City today, came at the request of the Republican Party...

Fairfax provisionals still to come...

"Richmond City's GOP-requested recanvass of 8 precincts could not have gone much worse for Obenshain (R)," tweeted Dave Wasserman of the non-partisan Cook Political Report, just after poll tapes from each of the questioned precincts had been publicly reviewed by the Board. Wasserman is one of those "election geeks" who have been following results in the VA AG contest closely. He was among the first to notice that some 3,000 absentee ballots from Democratic-leaning Fairfax County had also not been included in the official totals reported to the state following last Tuesday's election.

After a re-tally of those overlooked Fairfax ballots (said to have been due, in part, to a faulty Diebold optical-scanner on Election Night), Herring would have taken a slim lead over Obenshain, but for another (still-unexplained) computer tally error discovered in heavily-Republican Bedford County on the same day last Friday. The addition of another 500 or so votes for Obenshain there allowed him to maintain a very slim lead until today.

It should be noted that while Richmond City, which adjusted its totals today, leans heavily Democratic, two out of three of the Richmond City Electoral Board members are Republican.

The apparent razor-thin lead for Herring over Obenshain comes even before the rest of the provisional ballots in heavily Democratic-leaning Fairfax County are added to the total. Those ballots have been the subject of some controversy since Saturday, when a memo from the Republican-led SBE, regarding whether or not attorneys may argue on behalf of including a provisional ballot in the county totals without the voter present, led to the Fairfax County Electoral Board (also majority Republican) extending the time for voters to come to election headquarters to argue in favor of counting their provisional ballots.

Fairfax will now not conclude its adjudication of some 500 provisionals until Tuesday, when the addition of those ballots is likely (though not conclusively known) to result in yet another net pickup for the Democratic candidate.

Barring any other surprises --- and there have been many over the past week --- Herring will likely head into the certification period with the lead over Obenshain.

Virginia's version of a 'recount'...

The certification deadline for all of the state's 133 voting jurisdictions is midnight on Tuesday, November 12. Official certification by the State Board of Elections takes place thereafter, and a "recount" request by whoever is trailing at that time is almost certain to be filed. A "recount" would take place in December.

Unfortunately, a "recount" in Virginia is much less than it might appear. Most of the state's votes are cast on 100% unverifiable Direct Recording Electronic (DRE, usually touch-screen) voting systems, on which it is impossible after an election to know if any vote cast on them actually reflects the intent of any voter. Those votes will not be able to be "recounted" at all. Rather, according to § 24.2-802 (D) of the Code of Virginia [PDF], a "recount" of DRE votes consists of little more than checking the results tapes printed out by the machines at the end of Election Night once again...

For direct recording electronic machines (DREs), the recount officials shall open the envelopes with the printouts and read the results from the printouts. If the printout is not clear, or on the request of the court, the recount officials shall rerun the print out from the machine or examine the counters as appropriate.

So there is no way to know if any of the DRE votes, the majority of those cast, are actually accurate, as per any voter.

There are, however, many paper ballots cast across the state --- both absentee and provisional ballots, as well as normal paper ballots cast in jurisdictions like Fairfax County, the single largest voting jurisdiction in the state. In a race this close, a mis-tally of some of those ballots alone could flip the final results of the election in any direction.

Unfortunately, the state's statutory scheme for "recounting" those paper ballots is not much better than it is for the 100% unverifiable DRE votes. According to the state election code, a "recount" of those ballots will consist of little more, in most cases, than simply running them through the very same oft-inaccurate, easily-gamed optical scan computers that tallied them in the first place...

For optical scan tabulators, the recount officials rerun all the ballots through a tabulator programmed to count only the votes for the office or issue in question in the recount and to set aside all ballots containing write-in votes, overvotes, and undervotes. The ballots that are set aside and any ballots not accepted by the tabulator shall be hand counted...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.

Short of a court order to hand-count the paper ballots cast in Virginia --- what one would normally think of as a "recount" --- the bulk of the paper ballots will simply be re-scanned instead. Whatever the optical-scan tabulators report in that "recount" will be the final, official numbers for the election...unless the "recount" is subsequently contested after completion in a court of law. So, yes, this could take a while...

* * *

Previously related #VAAG coverage at The BRAD BLOG...

E-Voting Trouble Reported During Today's Elections in Virginia, New York, and Elsewhere [11/5/2013]

'Recount' in Virginia AG Race? Good Luck With That. (But, Perhaps You Can Help) [11/6/2013]

BREAKING: Thousands of Votes Discovered 'Unaccounted For' in Virginia AG Race [11/7/2013]

Tallying VA's 'Missing' Op-Scan Votes; And Other Surprises in the Incredibly Close VA AG Election [11/8/2013]

Down to the Provisionals: 55 Vote Margin (or less) Out of 2.2 Million Cast in Virginia AG Race [11/9/2013]

* * *
Please support The BRAD BLOG's fiercely independent, award-winning coverage of your electoral system --- now in our TENTH YEAR! --- as available from no other media outlet in the nation...