Republican Mark Obenshain issues statement urging caution before full state canvass, hints at legal challenge ahead...
By Brad Friedman on 11/12/2013, 8:05pm PT  

The last of the votes to be tallied in Virginia, prior to the certification deadline at 11:59pm ET tonight is done. With the Fairfax County provisional ballots optically-scanned and added to the totals, it appears that the Democratic candidate Mark Herring will be declared the "winner" for now, by just 164 votes --- out of more than 2.2 million cast --- over Republican Mark Obenshain.

If Herring can maintain his extraordinarily slim lead throughout the almost-certain "recount", he will become Virginia's first Democratic Attorney General in twenty years, and his party will have swept all three top-ticket races in the state this year --- Governor, Lt. Governor and AG.

The final provisional tallies in Democratic-leaning Fairfax County resulted in 160 votes for Herring and 103 for Obenshain, a net 57 vote pickup. Barring any surprises in the next hour (there have been plenty of twists and turns in this nail-biter over the past week since the election - see related coverage below), the final tally before the full state certification process begins as of Midnight Tuesday night will be Herring: 1,103,777 - Obenshain: 1,103,613, according to the State Board of Elections (SBE) now-updated website.

Herring and state Democrats are declaring themselves the winner of the contest. For his part, the Obenshain campaign has issued the following statement...

"At this stage, we are in the closest statewide election in Virginia history. The State Board of Elections currently estimates a difference of fewer than 200 votes out of more than 2 million cast. That's less than 1/100th of a percent difference. With the completion of the canvass of local boards, we have finished two of the three automatic steps of vote counting. The State Board of Elections will now conduct its own review, scheduled to be complete November 25th. We owe it to the people of Virginia to make sure we get it right, and that every legitimate vote is counted and subject to uniform rules. We have seen significant swings in the vote count over the last several days as errors are corrected as a part of the regular canvass process. The State Board of Elections will now conduct its own review and we will await their results. I thank our dedicated election officials who have put in long hours and given great care to their duty. We will make further announcements in the days ahead."

Indeed, the people of Virginia do deserve to know who won or lost this race. Unfortunately, as we detailed in this report earlier this week, given the "recount" process in the state, it's virtually impossible that voters will ever know for certain. Most of the state still uses 100% unverifiable Direct Recording Electronic (DRE, usually touch-screen) computer voting systems. Votes cast on those systems cannot be recounted in any meaningful way, as it's strictly impossible to know that any vote cast on them actually reflects the intent of any voter.

The rest of the votes were cast on paper ballots in Virginia. However, state election law mandates that, short of a court order, almost all of them will simply be re-scanned by the same optical-scan computer tabulators that tallied them in the first place. Without a hand-count of those paper ballots, it's impossible to know if the computers have scanned them accurately or not.

The Obenshain campaign's reference to "uniform rules" in their statement above is undoubtedly a reference to questions about the Fairfax County provisional ballot counting process which we detailed over the weekend. That process could be challenged, even though the Electoral Board there, like all of them currently in VA, consists of two Republicans and one Democrat. The Fairfax County Electoral Board issued this statement tonight, offering an appropriate defense of their work to try and count every vote while following "the letter of the law". Election law professor Rick Hasen offered more thoughts on the legal ramifications of that weekend kerfuffle-cum-potential-election-contest-issue yesterday at Slate.

The VA State Board of Elections (SBE) will double-check and then certify the results turned in by local jurisdictions tonight over the next two weeks. Any "recount" would be requested thereafter by the candidate declared the loser, and would likely not begin until December. After that "recount", the losing candidate may also file an election contest to challenge the "recounted" results.

As we've said before, this may take a while.

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UPDATE 11/13/2013: We originally reported last night that Herring would have a 163 vote lead over Obenshain going into the state certification period. After the SBE updated its results today, Herring was ahead by 164, after 3 other vote totals were adjusted in Russell County. We've updated the report above to reflect those new numbers.

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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]

BREAKING: Democratic Candidate Takes Lead in Razor-Thin VA Attorney General Tally [11/11/2013]

Provisional Votes Tallied in Fairfax County, VA - Last Ballots Before Certification of the Razor-Thin VA AG Race [11/12/2013]

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