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Va. recount in attorney general race begins Monday

RICHMOND, Va. (AP) -- The most extensive recount in modern Virginia political history will involve tens of thousands of people statewide to determine the state's next attorney general.

The recount begins Monday in Fairfax County and the cities of Alexandria and Chesapeake before moving to every jurisdiction in the state on Tuesday and Wednesday. Those three localities get a head start because of the extensive hand counting of ballots entailed in their recount or simply the sheer number of ballots and machines to be checked, which is the case in Fairfax County.

A three-judge recount court will convene on Thursday in Richmond to rule on challenged ballots that emerge from the re-tabulation.

Democrat Mark Herring should know by Friday if his 165-vote edge holds or if Republican Mark Obenshain has picked up enough votes to surpass his fellow state senator -- or closed it sufficiently to take it one step further.

Obenshain's camp has signaled the recount might not be the candidate's last gasp. They could play a rare, little-used card, taking the race to the General Assembly as a contested election and letting the Republican-majority body decide the race or call for a new election.

Regardless of how the contest ends, the outcome will be closely watched by both national political parties because the office of attorney general is often a launching pad for governor, as well as once reliably red Virginia's increasing importance as a swing state in presidential elections.

The State Board of Elections vowed the recount will be thorough, politically balanced and transparent.

"I think when you talk about fairness and transparency, at each stage there's different institutions involved that should provide confidence in the system," Secretary Don Palmer said in an interview with The Associated Press. "You have the election community involved, you have the political parties and you have the judicial system, and together I think that it will be a very thorough recount."

The recount will turn primarily on paper ballots -- one-fourth of the 2.2 million votes cast -- which are run through optical scan machines to record the votes. Sometimes they result in so-called overvotes and undervotes.

Those involve instances in which a ballot reflected votes for every candidate but one, or one on which opposing candidates for the same office each were marked off because of an errant stroke of a pencil. An undervote might entail, for example, a voter filling in the "O" of Obenshain instead of the oval on the ballot that should be marked.

The vote wouldn't be recorded, but could be in a recount.

Ballots with undervotes and overvotes are sent to the recount court as challenged votes if the voter's intent is unclear. The court is comprised of three judges from the Circuit Court bench.

"That's where you would most likely see an adjustment in the vote," said Edward B. Foley, who is director of the election law program at Ohio State University and is writing a book on disputed U.S. elections. "Hanging chads were a type of undervote."

The reference is to the 2000 presidential election race and the much-photographed examination of ballots by elections officials in Florida.

The State Board of Elections offers local election officials clear guidance on how to interpret those ballots.

"We have tried to set up all sorts of examples for local elections officials so when they are faced with these scenarios they have our guidance on whether a ballot should be counted or not be counted," Palmer said. "But we cannot think of every scenario. There will be things that they will see that we never thought of, or there's disagreement. People disagree on just about everything."

The recount court, which is scheduled to meet Monday, met for the first time on Dec. 9 to hear from attorneys for Obenshain and Herring before issuing rules for the recount. Most of the hearing focused on attempts by Obenshain's camp to open the spigot to more challenged ballots. One Obenshain proposal, for instance, would have allowed partisan observers posted at every locality to "suggest" to election officials which ballots should be decided by the court.

Herring's attorneys successfully opposed the proposal.

"I think the candidates and their lawyers are acting as you'd expect," Foley said. "The most important principle of a recount, if you're ahead, is certainly to limit the scope of the recount." The reverse is true if you're trailing, he said.

But Obenshain's attorneys have also been laying the groundwork for a contested election, which would send the election to the General Assembly to settle. A little-used state law passed in 1981 provides for a losing candidate to seek the option based on allegations of election irregularities that "would have a probable impact on the outcome of the election."

Observers can recall only one instance in the past three decades in which a contested election went to the General Assembly, and it did not involve a statewide race.

Obenshain's attorneys have sought election materials that, while not relevant to a recount, could be used as a basis for a contested election.

Their primary target has been Fairfax County, a Democratic stronghold. They have raised questions about the secure handling of ballots and the vetting of provisional ballots. Those are ballots cast in the wrong precinct or by someone lacking proper ID.

They could be building a case for a contested election.

Palmer, who estimated that tens of thousands will be involved in the recount statewide, didn't want to venture a guess on that prospect.

"That's outside our realm," he said.


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