RICHMOND -- Determining Virginia's next attorney general is now in the hands of a special state court.
Over the next few weeks, a three-judge panel will set the ground rules for an official recount likely to be held in mid-December. The panel will then resolve disputes over votes that advocates for Mark Herring and Mark Obenshain will argue weren't properly recorded, tabulated or recognized the first time.
After that, the court effectively will decide which of those two state senators has won the state's top law enforcement office.
A tally of Nov. 5 ballots showed Obenshain trailing by 165 votes out of more than 2.2 million cast, a finish that legally enables the Republican to seek another count. Herring, a Democrat, was certified the winner in that contest by the State Board of Elections Monday.
While board chairman Charlie Judd agreed with it this week, he also expressed concern about the integrity of the count, citing the example of Fairfax County allowing provisional ballot voters more time than other localities to confirm their voting status as a reason for that.
As the recount approaches, the Fairfax situation could be one focus of Obenshain's legal effort. Asked about that on a Wednesday morning conference call, Obenshain attorney Ashley L. Taylor Jr. noted he anticipates raising concerns "about the handling of ballots in that jurisdiction and others."
Obenshain's lawyers on Wednesday submitted a recount petition in Richmond Circuit Court, setting up a process to be overseen by the chief judge of the Richmond court and two others appointed by the chief justice of Virginia's Supreme Court.
This recount is the second to occur in an attorney general race in less than a decade, though this year's will be broader in scope than the one in 2005 because a law change since then now requires a re-tabulation of all optical-scan ballots. The nonpartisan Virginia Public Access Project estimated 712,000 of those ballots were cast statewide this year.
Those not read by machine counters will be tallied by hand. Provisional and absentee ballots also will be counted by hand, and print outs of vote totals from touch-screen voting machines will be added up again.
Recounts tend to be one-day affairs in many of Virginia's 133 localities where vote totals will be inspected again, although some larger jurisdictions may need an additional day or two, explained Obenshain attorney Stephen C. Piepgrass.
Attorneys for Obenshain said they'll be looking for so-called "over votes" and "under votes" on some questioned ballots during a hand inspection process that could be critical in how the final count comes out.
An over vote occurs when a voter selected more than one candidate but made their preference for one clear on the ballot. An under vote, meanwhile, is one that may not have been counted by a machine because a selection was made by not registered when the ballot was scanned.
Blogger Ben Tribbett has projected a range of 25,000-50,000 under votes.
Vote disputes are expected to be central to the recount process in Fairfax County, where 271 provisional ballots were counted in the post-election canvass. They have drawn the ire of some Republicans, as well as Judd. Brian Schoeneman, the secretary of Fairfax's electoral board who happens to be a Republican, has defended the county's provisional processing, saying it complied with the law.
Piepgrass confirmed that the eligibility of provisional ballots included in the certified count "is not in question any more" under the law. What is in question, he said, is how they are tallied during the recount.
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