A good lawyer will keep every possible option on the table for his or her client and that’s exactly what Mark Obenshain’s legal team is doing in advance of the recount of the ballots cast in the attorney general race. Among those options? Contesting the possible outcome of the recount before the General Assembly:
…Obenshain attorney William H. Hurd said the campaign would need time to review them before the Dec. 23 deadline to contest the election with the General Assembly.
“Depending on what we see, we may wish to consider that possibility,” he said, noting that the Herring campaign might want to do the same if it were to lose the recount.
Hurd’s comments were the first indication by the campaign that it might invoke a little-known state law that allows the losing candidate in a recount to contest the result with the legislature. This year, such a move would leave the ultimate outcome of the race in the hands of a joint session of the GOP-dominated House and evenly split Senate.
Keeping the option of a contest open is part of Hurd’s job. Were he not considering it, he would be failing his client.
The basis for a contest appears to rest upon how ballots were handled in Fairfax county, where our own Brian Schoeneman was in the thick of the action in his role as an election official. Brian has been very open about the process the county used to count, canvass and secure its ballots. He has done, and continues to do, a fine job in that capacity.
But none of that may prevent a contest.
The assumption is that given the partisan make-up of the General Assembly, Mark Obenshain would be able to win a contest without much problem. Republicans would hear whatever evidence is presented and, regardless of its quality, hand the AG’s office to one of their own. This assumes much — not the least of which is that General Assembly members are little more than well dressed Pavlov’s dogs.
One could hope that in a hypothetical contest, the individual members would exercise their best judgement and reach a decision based upon facts. But there would also likely be outside pressure on them to make a ruling based solely upon party identification. That would be a fatal mistake.
Wooly-eyed partisans would cheer such an outcome, and say, perhaps with merit, that the other side would do it if they had the numbers. All that means is our politics are no better, and may be much worse, than spats between two-year olds.
The real damage, though, comes afterwards. Anointing a winner — even if it is allowed under Virginia law — carries with it the real possibility that the party selecting the new incumbent will suffer at the next election. Worse, whatever patina of cooperation exists between the parties today would be erased for good. There are those who prefer such an outcome, even yearn for it. But Virginia loses if that happens as the political class would descend into an orgy of destruction. You, me and the rest of the commonwealth will be the ones who suffer.
Mark Obenshain would do himself an immense deal of good by making sure that doesn’t occur. He is already well position to run for statewide office in 2017 if the recount does not go his way. His campaign was solid and he has the tools he needs to run, credibly and successfully, once again. At the top of the ticket.
If things go badly for Mark Herring in the recount, he, too, would be well-advised to let the result stand. Herring’s only incentive in contesting the results would be to put the General Assembly in a box. It might make sense for a Democratic strategist playing a very long game. But again, Virginia would lose.
Accept the recounts results and then get on with it. There will be plenty of fights to come in the next session.
