Posted by on November 26, 2013 in Blog

By Maha Sayed
Legal Fellow

Following a three-week certification process in what is considered the closest statewide contest in modern Virginia history, the State Board of Elections announced on Monday that Democrat Mark R. Herring is Virginia’s next Attorney General. According to the final certified results, Herring defeated Republican Mark D. Obenshain by a mere 165 votes out of more than 2 million cast. The certified tally was Herring 1,103,777, Obenshain 1,103,612. Since Election Day on November 5, the count has fluctuated between the two candidates as local election boards across Virginia reviewed both the original ballots reported and previously uncounted provisional ballots. However, because the margin is less than one percent, Obenshain will likely request a recount, which means it could take until late December to determine whether a Democrat or Republican will fill the office of what is often viewed as a steppingstone to the Governor’s office. In an election of this scale, it is extremely rare for provisional ballots to take on such a consequential role in the outcome of the race. 

Although Obenshain maintained the lead by a razor-thin margin of 186 votes with 100% precincts reported on November 6, the count steadily swayed after localities began certifying provisional ballots and after a number of errors were reported across the state including errors in absentee ballots in Fairfax County.

The 2002 Help America Vote Act established provisional ballots as a method to streamline rules for American elections and permit voters whose eligibility cannot be determined at the polling site to cast a ballot.  Almost a week after Election Day, Herring assumed a slight lead over Republican Mark D. Obenshain, after picking up 117 previously uncounted votes in Richmond on Monday, November 11. Herring’s lead came after Richmond election officials discovered more than 200 uncounted votes from election night, largely from a single voting machine. By Tuesday, the focus shifted to Fairfax County where election officials verified the 493 provisional ballots cast by individuals who were not on the electoral rolls or did not have proper ID. The results from provisional ballots cast in Fairfax County proved determinative in Herring’s lead over Obenshain.

Under Virginia election law, the losing candidate in a statewide race may request a recount if the margin is one percent or less. Recounts are overseen by the courts, and officials only count the ballots that were previously cast. An unsuccessful candidate may contest the certified results of the recount, but any election contest is decided by the state Legislature where officials may call into question a voter’s eligibility to vote or any alleged irregularities that would have an impact on the outcome of the election.  Although the possibility that a partisan body would determine the outcome of an election appears troubling, it would be highly unlikely for that to occur in this case.

Regardless of the outcome, the Herring-Obenshain race ultimately came down to provisional ballots. Herring has maintained close ties to the Arab American and Muslim American communities, and has been a strong advocate on issues impacting ethnic and social minorities such as immigration reform and healthcare. The extremely narrow margin between the candidates and the role of provisional ballots further underscore the importance of Get out the Vote (GOTV) initiatives, such as Arab American Institute’s Yalla Vote campaign, which are designed to increase voter participation and awareness among communities across the country.  The unprecedented narrow margin of the attorney general race in Virginia therefore provides an ideal example of how an individual vote can influence the overall outcome of a major election in the United States.    



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