By Ann Zachariah


The victor in Virginia’s attorney general race was up in the air well into December.  Localities had until November 12 to turn in the results of the contest between Sen. Mark Obenshain and Sen. Mark Herring.  One of the delays in declaring a winner arose from a problem in Fairfax County, where a discrepancy in absentee votes was uncovered.  In the 8th District in Fairfax County, only 50 percent of absentee ballots that were requested were cast compared to 88 percent in the 10th District and 86 percent in the 11th District.

Once localities sent in their tallies to the state, the State Board of Elections will review the totals. The SBE had until November 25 to certify the results.  If the margin of victory is within one percent, the losing candidate can request a recount, as Obenshain has done.

Regarding absentee ballots, Virginia law states that the board “shall not reject the application of any individual because of an error or omission on any record or paper relating to the application, if such error or omission is not material in determining whether such individual is qualified to vote absentee.”  But in a recount, according to section 24.2-802 of the Code of Virginia, “the determination of the votes in a recount shall be based on votes cast in the election and shall not take into account (a) any absentee ballots or provisional ballots sought to be cast but ruled invalid and not cast in the election.”

Since this election is so close, would it be possible for a candidate to get his hands on rejected absentee ballots to ensure that no errors were made in determining the candidate’s eligibility?  As stated above, this is not possible in a recount.  It is possible, however, if the losing candidate contests the election.  A candidate may contest an election if the candidate believes there have been voting irregularities like fraud or problems with voting machines.  Another lesser-used option short of a contest that one of the AG candidates could have used, according to election attorney John Hardin Young, is filing suit in circuit court asserting that the city or county failed to properly count the ballots before the canvas results are certified by a county or city and sent to the State Board of Elections.

Absentee ballots represent a significant number of the voters.  In the November 2009 gubernatorial election, 88,189 absentee ballots were cast, and in the November 2012 general election 447,907 absentee ballots were cast.

In the 2009 House of Delegates election in Virginia’s 21st District, between City Councilman Ron Villanueva and Del. Bobby Mathieson, rejected absentee ballots were reexamined and led to a difference of several votes.  Mathieson was down by sixteen votes before rejected absentee votes and provisional ballots were reviewed during the canvassing period.  Only eleven rejected votes were inspected, although it was in the board’s discretion to examine more if it wanted to, according to Mr. Young.

It also would have been possible for Herring or Obenshain to file suit against Fairfax alleging that it improperly counted absentee ballots, which could have required the county to look at rejected absentee ballots. Without that option, the only way for rejected absentee ballots to get a second look would have been be a contest.

After going through the process, Obenshain conceded defeat to Herring on December 18. Herring was sworn in in January.

On that day the king travelled from buckingham palace to aldershot to review a parade have a glimpse here of troops
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