Will the Virginia GOP Try to Steal Mark Herring's Victory?

The intrigue and dishonest scheming continues unabated among elements of the Republican Party of Virginia which remain incensed that it now appears that GOP Attorney General candidate Mark Obenshin - who ran a slick, if totally dishonest campaign - has lost the popular vote to Democrat Mark Herring.  It seems all but certain that there will be a recount since today's GOP never loses gracefully.  The bigger fear in some circles, however, is that the Virginia GOP may try to use bizarre aspects of Virginia law to declare Obenshain the winner even though he lost.  In today's GOP - which has a level of morality akin the the Nazi Party in the 1930's - the end justifies any means necessary to win and impose extremism on all.  A piece at MSNBC looks at what some fear could come to pass.  Here are highlights:

Even if Democrat Mark Herring ends up with more votes than his Republican rival Mark Obenshain in the tightly contested Virginia attorney general’s race, he could still lose.

Herring is currently ahead of Obenshain by a follicle–the current official count states that Herring has 164 more votes than Obenshain out of more than two million cast. A recount is all but guaranteed and litigation seems likely. But even if after the dust clears Herring remains in the lead, under Virginia law, Obenshain could contest the result in the Republican dominated Virginia legislature, which could declare Obenshain the winner or declare the office vacant and order a new election.

“If they can find a hook to demonstrate some sort of irregularity, then there’s nothing to prevent them from saying our guy wins,” says Joshua Douglas, an election law expert and professor at the University of Kentucky College of Law.  “There’s no rules here, besides outside political forces and public scrutiny.”

Obenshain couldn’t simply contest the election out of the blue. He’d have to argue that some sort of irregularity affected the result. Still, Virginia law is relatively vague in explaining what would justify an election contest, and historical precedent suggests that co-partisans in the legislature are unlikely to reach a decision that hurts their candidate.

On Sunday the state board of elections informed the Fairfax County board that they had to observe state rules barring legal representatives of voters who cast provisional ballots from appearing on their behalf unless the voter is there in person. Whether that was a rule change or a clarification of existing practice is disputed–but the Fairfax County board also allowed voters who cast provisional ballots more time to appear in person and argue their eligibility than other counties. The county ultimately approved 271 provisional ballots–160 for Herring and 103 for Obenshain.

That discrepancy could be the basis for a court challenge, because legal experts believe the Supreme Court’s 2000 decision in Bush v. Gore requires jurisdictions within a state have to have uniform rules for counting votes. But if even if Obenshain loses in court, he could turn to the Virginia legislature with an election contest. The law states that Obenshain needn’t prove that Fairfax’s decision to allow more time for voters to argue their eligibility in order to go forward with an election contest, he need only “specific allegations which, if proven true, would have a probable impact on the outcome of the election.”

Nevertheless there is a substantial political risks to this approach. Virginia Republicans could incur a severe political backlash if Virginians see them as thwarting the will of the electorate or subverting the results of an election simply because they didn’t like the outcome. Between a recount and potential litigation, we’re also still a long way away from a potential election contest.

Yet a campaign to persuade voters that the close election was simply the result of Democratic shenanigans at the polls isn’t inconceivable, especially with a base convinced that in-person voter fraud, which is very rare, is a deciding factor in elections. If after all options have been exhausted, Obenshain decides he wants to take his case to the state legislature, the only thing stopping Republicans from ordering a new election or declaring him the winner would be fear of a political backlash or their own self-restraint.

I would not put much stock in GOP self-restraint. The Virginia GOP is now controlled by religious zealots, white supremacists and lunatics,  not exactly folks likely to argue for self-restraint, assuming they even know what it is.