12/26/13: A victory for the Virginia Way, this time

This op-ed appeared in The Virginian-Pilot on the date shown.

IT TOOK EXTRA time, but the contest for Virginia’s attorney general is over. Mark Herring will be sworn in on Jan. 11, marking the first time since 1969 that Democrats hold all five statewide offices.

The recount process that started with Herring holding a slim, 165-vote lead over Mark Obenshain ended more abruptly than many thought it would.

The plan was for three localities — Alexandria, Chesapeake and Fairfax County  — to start recounting ballots at the start of last week, with the remaining localities to begin the next day. The recount was to be completed by midweek. The three-member recount court was to hear ballot challenges last Wednesday and Thursday and render its verdict Friday.

By last Wednesday afternoon, though, Herring’s lead had steadily risen, with the number of ballots challenged far too small to overcome the deficit. Obenshain held a press conference to publicly concede the contest.

Political watchers collectively let out a sigh of relief.

Since the Nov. 5 vote, there have been rumors that Obenshain would use a little known section of the Virginia Code that would allow someone other than the voters to decide the election.

Section 24.2-804 allows a candidate for governor, lieutenant governor or attorney general to contest the election, a provision available to candidates for the General Assembly under 24.2-803 and other contests under 24.2-806. In the case of the statewide offices, the unsuccessful candidate’s appeal is heard by the General Assembly.

Given the partisanship of the legislature, having it decide the winner would not have been in the best interests of democracy.

The last time it happened was in 1979, in a contest for a state Senate seat covering parts of Norfolk and Virginia Beach, which pitted incumbent Democrat Peter Babalas against Republican Meyera Oberndorf. In that election, there were reports of widespread voting machine malfunctions.

At that time, it was the Democrats who were in control of the legislature and, unsurprisingly, they awarded the seat to Babalas. Speculation was that the current Republican-controlled legislature would do the same and award the win to Obenshain.

Of course, November’s election had none of the problems like those in Norfolk in 1979. Plus, every electoral board in the state has a Republican majority, another quirk of Virginia’s laws. That didn’t stop some partisans from making disparaging remarks about the votes cast, including the chairman of the State Board of Elections.

Obenshain, though, put an end to all of it. In his concession speech, he thanked all of those involved for their “commitment to this electoral process.” He offered his help to Herring and said that governing is “about reaching common ground.”

Obenshain showed that, despite all of the differences, the Virginia Way is alive and well. I applaud him for this and for the campaign that he ran.

But the provision that would have allowed the joint body of the General Assembly to decide the election’s outcome needs to be fixed.

Like redistricting, this process should never be in the hands of the legislature. There should be an independent body — perhaps retired judges — to hear cases of election contests, like many other states have adopted.

The reasons for an election contest are valid: there may very well be times where circumstances, like malfunctioning machines, dictate another look at the results.

But it should never be left to partisans to make the decision.

The legislature, which convenes in January, should make fixing this a top priority.