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Mark Obenshain (R) looks to lose the election for Virginia Attorney General. The state board of elections is set to certify Mark Herring as the winner today. Obenshain's next option would be a taxpayer-funded recount.  However, that will do little to change the outcome of the election.  

However, Obenshain has one more dirty trick up his sleeve. It's called a "nuclear option":

Republican Mark Obenshain is trailing Democrat Mark Herring for attorney general by 164 votes. Obenshain could win with as few as 71 — with not a single one cast by an ordinary Virginian. It is a nuclear option that takes the election out of the hands of the electorate.

Obenshain could initiate what state law calls a “contest” in which the 140-member legislature decides the attorney generalship by a majority vote. That would be a minimum of 71. They shouldn’t be too difficult for Obenshain to round up. There are 87 Republican legislators. Many of them don’t like one bit that their party could be completely shut out of statewide office.

Jump below for more information on this procedure:

This is a high-risk strategy.  If he chooses to initiate this, Democrats will make the accusation that he is stealing the election over the will of the people. But, it will put him in position as the leading Republican in the state and the presumptive frontrunner for the 2017 election.  Where this will come up again.

The fundraising he's doing suggests he's preparing for everything. He recently was given $50,000 by the Republican State Leadership Committee.  Not only will that help pay his lawyer, but a contest costs $10 per precinct.  And with over 2600 precincts, that adds up to a lot of cash.

Now here's where some serious conflicts of interest come in.  A recount will go in front of a Richmond court.  

The supervising judge could be Brad Cavedo, chief judge of the city’s Circuit Court. He has a special tie to Obenshain. Cavedo, once a reporter for the Richmond Times-Dispatch, was the driver and confidant of Obenshain’s storied father, Dick, and was one of the last people to see alive the Republican U.S. Senate nominee before he died in a plane crash in Chesterfield County on Aug. 2, 1978.
So there's one huge conflict of interest right there.  When it comes to a contest, it gets even better:
In a contest, a candidate argues that the result of the election is incorrect because the election was improperly run. That, election lawyers in both parties say, is a very high standard. It requires clear evidence that the outcome should have been different because enough votes were not cast or improperly cast. This could put Obenshain crosswise with local registrars, since he would be directly challenging their administration of the election.

The legislature serves as a court, hearing evidence and rendering a judgment.

One of the first steps in the process: a perusal of disputed ballots and protocols by the election committees of the Republican-controlled House of Delegates and evenly split Virginia Senate. The Senate committee is chaired by a guy whose verbal cadence conjures Mister Rogers: Mark Obenshain.

Plus, when the full House and full Senate met to decide the election, they would convene in the House chamber in a session at which the House speaker — a Republican — would preside, giving Obenshain a parliamentary advantage.

So the person initiating this procedure is the chairman of the Senate committee that will decide if a contest is going forward.  It's good to be the King.

Is this unprecedented?

No. It's happened before, the last time in 1979.  That time, it was for a state Senate seat in a district that included Norfolk and Virginia Beach. Chaos defined Election Day. Voting machines in Norfolk broke down. Some ballots were marked on odd scraps of paper.

So the Republican candidate initiated the contest.

The Senate was controlled by Democrats at the time, and they closed ranks and voted for their own.

So you KNOW what will happen this time.

Originally posted to zenbassoon on Mon Nov 25, 2013 at 07:47 AM PST.

Also republished by Virginia Kos.

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Comment Preferences

  •  Tip Jar (26+ / 0-)

    "Nothing in all the world is more dangerous than sincere ignorance and conscientious stupidity." --M. L. King "You can't fix stupid" --Ron White -6.00, -5.18

    by zenbassoon on Mon Nov 25, 2013 at 07:47:40 AM PST

  •  If Obenshain does that, it will give (9+ / 0-)

    Democrats something to run against in 2015.   Hopefully all of the state districts where Obama, Kaine or McAuliffe won are contested by Democrats, and those races are heavily funded.  

    Also hopefully the Democratic part in Virginia will be able to take advantage of any opportunity that comes up to knock off a Republican.   Hopefully Howard Dean will also try to fund more than 4 or 5 candidates in the next cycle too.

    Pretty sure the Beltway press would spin this as Both Parties do it false equivalence.

    I agree with President Obama, our country's journey is not yet complete. We must continue the work that our forebearers at Seneca Falls started, and put the Equal Rights Amendment into our Constitution.

    by pistolSO on Mon Nov 25, 2013 at 08:00:14 AM PST

  •  My own opinion is that this is highly unlikely (14+ / 0-)

    It sounds like it happened before there was good reason to initiate a contest but I don't think that is the case today. Plus, the earlier case was limited to one district, not a statewide office.

    I think the bar is simply too high to prove that the statewide election process was so flawed that it has to be thrown to the state legislature. This gives a black eye to the entire state.

    Plus, I doubt very much if the majority of Virginians would take having the election nullified for a single office quietly. The process was flawed for just this one race? It all strains credulity.

    “Human kindness has never weakened the stamina or softened the fiber of a free people. A nation does not have to be cruel to be tough.” FDR

    by Phoebe Loosinhouse on Mon Nov 25, 2013 at 08:00:55 AM PST

    •  Yeah, I doubt it too (2+ / 0-)
      Recommended by:
      zenbassoon, Eyesbright

      I suppose if the recount narrows the margin down to a handful of votes (or less), they might try it. But absent that I can't see this going anywhere.

    •  Thanks for pointing out the actual standard (6+ / 0-)

      for initiating such a contest.

      If Obenshain goes to war with county registrars, he is fucked (scientific term) for the next four years.  It'd be nice if ordinary Virginians felt that way, too (doubtful:  see Florida 2000), but politically, it's sufficient that the registrars would be righteously furious and would absolutely extract revenge.

      Difficult, difficult, lemon difficult.

      by Loge on Mon Nov 25, 2013 at 08:34:34 AM PST

      [ Parent ]

    •  Add to this the fairly well-ordered polling (0+ / 0-)

      and count we saw, and I think this would be hard even for Republicans to swallow.

      I work in my county electoral system as a precinct officer. Mine is a very red county - Hanover - but the election officials I work with at the precinct and court house are, to my knowledge, scrupulous in their adherence to the law. And as far as I know, the multiple independent checks built into the system make chicanery difficult, once the polls close. As the diarist suggested, a recount would be unlikely to change the result.

      And as the diarist also pointed out:

      In a contest, a candidate argues that the result of the election is incorrect because the election was improperly run. That, election lawyers in both parties say, is a very high standard. It requires clear evidence that the outcome should have been different because enough votes were not cast or improperly cast. This could put Obenshain crosswise with local registrars, since he would be directly challenging their administration of the election.
      We'll see if Senator Obenshain has the brass to argue the election was "incorrect" because "improperly run." I'd almost like to see him try it.

      Courage is contagious. - Daniel Ellsberg

      by semiot on Mon Nov 25, 2013 at 10:59:23 AM PST

      [ Parent ]

  •  I don't put it past Obenshain (6+ / 0-)

    or the Va Republicans, who are simply furious right now, to try.

    Still, the majority in the legislature is not all teabagger.  I can see some of the Republican reps not going along, especially given that Fairfax County was held to an electoral standard different from the rest of the state because it was heavily Democratic, and that judgement from the Board of Elections served to depress the Democratic vote in Fairfax.  Pulling two dirty, albeit technically legal,  tricks would energize the Democrats like no one would believe, and I have to think that there are enough Republicans with one foot in reality to stymie the plan.

    "I speak the truth, not as much as I would, but as much as I dare, and I dare a little the more, as I grow older." --Montaigne

    by DrLori on Mon Nov 25, 2013 at 08:29:23 AM PST

  •  Well, I was gonna call out CT on diarist, but then (3+ / 0-)
    Recommended by:
    zenbassoon, ER Doc, FarWestGirl

    Remembered who we are dealing with.  Anything is possible with these guys, and even things that should be very low probability become thinkable.

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