Virginia Attorney General election, 2013

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The Virginia attorney general election was held on November 5, 2013 following a Democratic primary election on June 11, 2013 and a Republican statewide convention on May 17-18, 2013.

Incumbent Ken Cuccinelli (R) opted to run for governor rather than seek a second term as attorney general in 2013.

Unofficial results on election night showed Mark Obenshain (R) leading Mark Herring (D) by less than 1,000 votes out of nearly 2.2 million cast. A week later, by the midnight deadline for local election boards to submit results to the state, Herring had taken the lead by an unofficial 164 votes. The State Board of Elections certified the results on November 25, 2013, announcing Herring had won by 165 votes.

Since the margin was equal to or less than 0.5 percent of the total vote, Obenshain, as the losing candidate, was entitled to request a publicly financed recount, which he did on November 27. The recount began on December 26, and Obenshain conceded two days later, in a news conference in Richmond. “It’s apparent that our campaign is going to come up a few votes short,” Obenshain told reporters. Herring's win gave Democrats control of the office for the first time in almost two decades.

Race background

In March 2013, Governing magazine rated Virginia's open attorney general seat as vulnerable prior to the election because incumbent Republican Ken Cuccinelli was not running for re-election.

The race to replace Cuccinelli began at the primary nomination stage; both the Republican convention and the Democratic primary were contested. On May 18, state Sen. Mark Obenshain and state Rep. Rob Bell competed for delegate votes at the Republican Party of Virginia's closed nominating convention, which Obenshain won. State Sen. Mark Herring defeated a former assistant U.S. attorney, Justin Fairfax, in the Democratic primary on June 11, 2013.

Polls showed Herring ahead of Obenshain by a slim margin in late October 2013. Several organizations engaged in satellite spending prior to the November election. This included:

• Planned Parenthood and Independence USA PAC (primarily funded by New York City Mayor Michael Bloomberg), which spent about $1 million to criticize Obenshain
• The National Rifle Association, which spent $500,000 to criticize Herring
• The Republican State Leadership Committee, which spent $2.6 million in support of Obenshain

The outcome of the election was initially too close to call, but after a recount, Herring won the seat by 907 votes out of 2,209,183 votes cast.

Deadline	Event
March 28	Last day to file candidacy for primary election
May 17-18	Republican primary convention
May 20	Voter registration deadline for primary election
June 11	Primary election, last day for non-party candidates to file candidacy
June 17	Last day for Independent candidates to file for general election
Oct. 15	Voter registration deadline for general election
Nov. 5	General election

Results

General election

Recount: Virginia Attorney General General Election, 2013
Party		Candidate	Vote %	Votes
	Democratic	Mark Herring (MOV post-recount +907)	50%	1,105,045
	Republican	Mark Obenshain	50%	1,104,138
Total Votes				2,209,183
Election Results Virginia State Board of Elections.

Virginia Attorney General General Election, 2013
Party		Candidate	Vote %	Votes
	Democratic	Mark Herring (MOV pre-recount +165)	49.9%	1,103,777
	Republican	Mark Obenshain	49.9%	1,103,612
	N/A	Write-In	0.2%	4,892
Total Votes				2,212,281
Election Results via Virginia State Board of Elections.

Recount

On November 25, 2013, the Virginia State Board of Elections certified the results of the attorney general race and declared Mark Herring (D) the winner. According to the certified vote totals, Herring defeated Mark Obenshain (R) by 165 votes out of 2.2 million cast. A publicly-financed recount was ordered for the week of December 16, and Obenshain conceded on December 18. Judge Beverly W. Snukals, oversaw the recount court as it evaluated the ballot submissions from localities. Ultimately, the court upheld Herring's victory. According to the official recount results posted by the Virginia SBE, Herring beat Obenshain by 907 votes—a wide margin, in comparison to 165 vote difference calculated prior to the recount.

Under state election law, the trailing candidate can request a recount if the margin of victory is less than 1 percent. If the margin is over half a percent, the candidate must pay for the recount. Local election boards had until November 19, 2013, to certify their results and pass them onto the Virginia State Board of Elections, who faced a November 25 certification deadline.

A recount in race for state attorney general had not been without recent precedent. In 2005, former Gov. Bob McDonnell ran for the office against Creigh Deeds. The first result showed McDonnell with a victory of 323 votes, out of over 1.9 million votes cast. Deeds went on to file for a recount, which began on December 20, 2005. After preliminary figures revealed 37 additional votes for McDonnell, Deeds conceded, giving McDonnell a 360-vote margin of victory.

In the event of a recount, elections officials double-check and re-add totals from voting machine records. During the 2005 recount, the returns from nine precincts were also examined by hand. The recount cannot take place until after the vote is certified by the Board of Elections. Once that occurs, the apparent losing candidate has ten calendar days to file a recount petition with the Circuit Court of the City of Richmond.

The recount court, which determines the procedures of the recount, consists of the Chief Judge of the Circuit Court where the recount petition was filed and two other judges appointed by the chief justice of the Supreme Court of Virginia. The court then appoints recount officials to represent the respective parties to the recount. Once all the votes cast are recounted, the court certifies the candidate with the most votes as the winner.

Tracking the count

See also: 2013 Recount review: Herring's win seals Democratic sweep in Virginia

See also: Race for Virginia Attorney General remains too close to call

Late Tuesday night of election day—November 5, 2013—Virginia Republican Party Chairman Pat Mullins sent out an email congratulating Mark Obenshain (R), although neither he nor Herring had claimed victory or conceded. "We want to make sure all precincts are accounted for and results are accurate, all absentee ballots are counted and every Virginian who cast a provisional ballot has their voice heard," Herring said. By Friday after election day, results were still inconclusive; it was reported that there were 8,363 absentee ballot requests in Fairfax County, but only 4,168 of those votes were counted. A return percentage of 50.3 was very low when neighboring districts 10 and 11 had a return rate of 88 percent and 86 percent, respectively. With it being a heavily Democratic area, it was expected that the approximately 3,000 ballots that had not been counted were likely to result in Herring taking the lead. Another discrepancy was found in the total number of absentee ballots cast. A pre-election news story by WUSA-9 showed Fairfax County reporting over 24,300 absentee ballots case, while the state Board of Elections’ site had reported just 22,484 absentee ballots cast as of November 7.

By the end of the weekend, it was reported that instead of absentee votes, the main problem in Fairfax began with a malfunctioning optical scan machine in the Mason Governmental Center on Columbia Pike. The machine began Tuesday in good shape but stopped working after 710 ballots had been cast. Those ballots were then fed into a working machine and voting continued on that machine. By the end of the day, that machine produced a total of 2,688 votes. When election results were counted, the county reported the 710 votes instead of the 2,688 votes and left 1,978 votes unreported. Bedford County also found sizable errors and added another 732 votes to the count after election night. The Republican-leaning county added 581 of those votes to Obenshain.

A major battle took place over provisional votes - ballots cast by people who did not have legally permissible ID at the polls. Voters who cast these ballots had until noon on November 8 to show proper ID to their local election board and explain why they cast a provisional vote. Board of Elections staff also reviewed every provisional vote and it was up to the Board to accept or reject each ballot. As of the evening of November 11, the Fairfax County Election Board had rejected 138 provisional ballots and accepted 172, with 183 left to evaluate. Just weeks before the election, the State Board of Elections initiated a purge of over 38,000 names from the voter rolls. Some local administrators reported finding hundreds of names that should not have been removed, which may have potentially increased the number of provisional ballots cast. Both campaigns urged voters to certify their ballots to ensure their vote was counted. Taking into account a rule change, the Fairfax County Electoral Board certified its results around midnight of November 12. In the end, the board upheld 271 of the freshly-scrutinized provisional ballots: 160 went to Herring and 103 to Obenshain. This boosted Herring to declare himself the race's victor, despite Obenshain's refusal to concede "the closest statewide election in Virginia history."

Herring's original margin of victory was slim enough to activate Obenshain's right, as the losing candidate, to request a state-funded recount, which he did on November 27. The recount began on December 16 and Obenshain conceded two days later in a news conference in Richmond. While the three-member recount court had not yet finished tallying votes, unofficial totals from December 18 showed Herring had gained almost 800 votes. “It’s apparent that our campaign is going to come up a few votes short,” Obenshain told reporters. His loss gave Democrats control of the office for the first time in nearly two decades.

Democratic primary election

Attorney General of Virginia Democratic Primary Election, 2013
Candidate	Vote %	Votes
Mark Herring	51.7%	72,861
Justin Fairfax	48.3%	68,177
Total Votes		141,038
Election results via Virginia State Board of Elections.

Candidates

General election

• Mark Herring
• Mark Obenshain

Note: Recount likely

Primary election candidate list - Click "show"
Democratic primary election Mark Herring- State Senator Justin Fairfax - Former assistant U.S. attorney for the Eastern District of Virginia Republican primary convention Rob Bell-State House Delegate Mark Obenshain - State Senator

Nominating conventions

Nominating Conventions in Virginia

The candidate selection process in Virginia differs between the political parties. According to the Code of Virginia:

“The duly constituted authorities of the state political party shall have the right to determine the method by which a party nomination for a member of the United States Senate or for any statewide office shall be made. The duly constituted authorities of the political party for the district, county, city, or town in which any other office is to be filled shall have the right to determine the method by which a party nomination for that office shall be made.”

Democratic Party

The Democratic Party in Virginia used conventions to select nominees for statewide offices between 1981 and 2001 before shifting to primaries. The Virginia Democratic Party switched to the convention format for the 1981 election cycle to moderate the party after independent candidate Henry Howell won the 1977 primary. The nominating convention proved successful for Democrats in the 1980s with the election of Chuck Robb in 1981, Gerald Baliles in 1985 and Douglas Wilder in 1989. The change back to primaries in 2001 took place because of significant losses in state elections by the Democrats in 1993 and 1997. The Democratic Party did not hold a gubernatorial primary in the 2001 and 2005 election cycles as Mark Warner and Tim Kaine ran unopposed.

Republican Party

The Republican Party in Virginia has used conventions to select nominees for statewide offices for much of its history. Republicans have only used primaries to nominate candidates in 1949, 1989, 1997 and 2005. The convention process used in most elections draws from delegates selected by Republicans during municipal and county conventions. The number of delegates per county depends on the strength of the Republican Party in past elections.

Delegates cast their votes on separate ballots for each statewide office. Any candidates who are uncontested automatically receive the party’s nomination. Contested races start with a ballot to determine if a candidate can surpass the 50% threshold. A candidate who wins more than 50% of first-round ballots receives the nomination for that office. If the first round of ballots does not clear this threshold, the two candidates with the fewest votes are eliminated. The balloting process cuts candidates in each round until three candidates remain. A ballot is taken to eliminate a third-place finisher and a final ballot is taken between the two remaining candidates.

Polls

Attorney General of Virginia
Poll	Mark Herring (D)	Mark Obenshain (R)	Not sure	Margin of error	Sample size
Christopher Newport University Poll of Likely Voters (October 25-30, 2013)	43%	45%	12%	+/-3.0	1,038
Garin Hart Young Poll (October 22-23, 2013)	48%	45%	7%	+/-3.5	802
Washington Post/Abt-SRBI Poll (October 24-27, 2013)	49%	46%	3%	+/-4.5	762
Public Policy Poll (Early voters) (October 19-20, 26-27, 2013)	54%	42%	4%	+/--	1,433
Christopher Newport Poll (October 1-6, 2013)	45%	42%	14%	+/-3.1	886
Roanoke University Poll (September 30 - October 5, 2013)	35%	38%	26%	+/-3.0	1,046
Public Policy Poll (July 11-14, 2013)	38%	36%	25%	+/-4.0	601
Roanoke University Poll (July 8-14, 2013)	29%	33%	38%	+/-4.3	525
Public Policy Poll (May 24-28, 2013)	33%	32%	34%	+/-3.8	672
AVERAGES	41.56%	39.89%	18.11%	+/-2.24	862.78
Note: The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to [email protected].

Hypothetical general election match-up (May 2013)

Attorney General of Virginia - 2013 Hypothetical General Election Match-up
Poll	Justin Fairfax (D)	Mark Obenshain (R)	Not sure	Margin of error	Sample size
Public Policy Polling (May 24-28, 2013)	30%	32%	38%	+/-3.8	672
Note: The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to [email protected].

Democratic primary (May 2013)

Attorney General of Virginia - 2013 Democratic Primary Race
Poll	Justin Fairfax	Mark Herring	Undecided	Margin of error	Sample size
Public Policy Polling (May 24-28, 2013)	19%	22%	59%	+/-5.5	322
Note: The polls above may not reflect all polls that have been conducted in this race. Those displayed are a random sampling chosen by Ballotpedia staff. If you would like to nominate another poll for inclusion in the table, send an email to [email protected].

Campaign sites & media

Mark Herring

• Mark Herring - Official Campaign Website

Facebook

Twitter

YouTube

"Family" - Herring's first 2013 campaign ad addresses the state senator's decision to back a transportation funding bill in order to "to get folks out of their cars and home to their families." Released September 27, 2013

Mark Obenshain

• Mark Obenshain - Official Campaign Website

Facebook

Twitter

YouTube

"Mark and Tucker" features Obenshain's daughter touting his record advocating for "mandatory life sentences for child predators and protecting families from abusive spouses." Released September 24, 2013

"Trust," the second ad of his campaign, recaps message of previous ad, highlighting Obenshain's toughness on handling domestic violence and sex crimes. Released October 1, 2013

In "Truth," supporters praise Obenshain as a prosecutor and protector of woman and families, disputes related attacks from opponent Mark Herring's campaign. Released October 16, 2013

Campaign finance

The Virginia State Board of Elections administers campaign finance law and maintains all records online.

For the primary election:

• First Pre-Primary -- due by June 3
  
• 8-Day Pre-Primary report -- due by June 3, 2013
  
• Post-Primary report -- due by July 15, 2013
  

For the general election:

• First Pre-General report -- due by October 15, 2013
  
• 8-Day Pre-General report -- due by October 28, 2013
• Post-General report -- due by December 5, 2013
  

Mark Herring

Mark Herring Campaign Finance Reports
Report	Date Filed	Beginning Balance	Total Contributions for Reporting Period	Expenditures	Cash on Hand
Post-Primary Report	July 15, 2013	$229,180.18	$206,361.40	$(666,172.95)	$127,680.99
8 Day Pre-General Report	October 28, 2013	$1,398,910.90	$664,243.82	$(1,591,252.96)	$471,901.76
			Running totals
			$870,605.22	$(2,257,425.91)

Mark Obenshain

Mark Obenshain Campaign Finance Reports
Report	Date Filed	Beginning Balance	Total Contributions for Reporting Period	Expenditures	Cash on Hand
Post-Primary Report	July 15, 2013	$68,132.75	$479,915.89	$(745,285.67)	$487,044.36
8 Day Pre-General Report	October 28, 2013	$320,221.30	$2,547,469.22	$(2,616,065.77)	$251,624.75
			Running totals
			$3,027,385.11	$(3,361,351.44)

Endorsements

Mark Herring

Herring's 2013 attorney general campaign was endorsed by The Washington Post, former Virginia House Minority Leader Ward Armstrong, former Virginia Democratic Party Chairman Brian Moran, in addition to the following list of public officials:

• Members of the State Senate:

Sen. George Barker (Fairfax)
Sen. Chuck Colgan (Prince William)
Sen. Adam Ebbin (Alexandria)
Sen. John Edwards (Roanoke)
Sen. Barbara Favola (Arlington)
Fmr. Sen. Edd Houck (Spotsylvania)
Sen. Janet Howell (Fairfax)
Sen. Mamie Locke (Hampton)
Sen. Louise Lucas (Portsmouth)
Sen. Dave Marsden (Fairfax)
Sen. Henry Marsh (Richmond)
Sen. Donald McEachin (Henrico)
Sen. John Miller (Newport News)
Sen. Phil Puckett (Russell)
Fmr. Sen. Patsy Ticer (Alexandria)
Fmr. Sen. Mary Margaret Whipple (Arlington)

• Members of the House of Delegates:

Fmr. Del. Ward Armstrong (Henry)
Del. Mayme BaCote (Newport News)
Del. Bob Brink (Arlington)
Del. David Bulova (Fairfax)
Del. Eileen Filler-Corn (Fairfax)
Del. Charniele Herring (Alexandria)
Del. Patrick Hope (Arlington)
Del. Algie Howell (Norfolk)
Del. Matthew James (Portsmouth)
Del. Joe Johnson (Abingdon)
Del. Rob Krupicka (Alexandria)
Del. Alfonso Lopez (Alexandria)
Del. Delores McQuinn (Richmond)
Del. Joe Morrissey (Henrico)
Del. Ken Plum (Fairfax)
Del. Mark Sickles (Fairfax)
Del. Lionell Spruill (Chesapeake)
Del. David Toscano (Charlottesville)
Del. Luke Torian (Prince William)
Fmr. Del. Katherine Waddell (Richmond)
Del. Vivian Watts (Fairfax)

• Mayors:

Hon. David Bowers (Roanoke)
Hon. Trent Crewe (Wytheville)
Hon. Paul Fraim (Norfolk)
Hon. Michael Gillette (Lynchburg)
Hon. Earnie Porta (Occoquan)
Hon. Kristen Umstattd (Leesburg)
Hon. Molly Ward (Hampton)

• County Supervisors:

Fmr. Sup. Hon. Susan Buckley (Loudoun)
Hon. John Foust (Fairfax)
Hon. Penelope Gross (Fairfax)
Hon. Gerald Hyland (Fairfax)
Hon. John Jenkins (Prince William)
Hon. Fred Luntsford (Wise)
Hon. Jeff McKay (Fairfax)
Hon. Tyrone Nelson (Henrico)
Fmr. Sup. Hon. John Peace (Wise)
Hon. Frank Principi (Prince William)
Hon. Ronnie Short (Wise)
Hon. Frank Thornton (Henrico)

For a complete list of Herring's endorsements, visit his official campaign website.

Mark Obenshain

Obenshain's 2013 attorney general campaign was endorsed by the following individuals and organizations:

• The Richmond Times-Dispatch
• The Republican State Leadership Committee
• Vietnam veteran Hispanic activists Luis R. Quinonez and Daniel P. Cortez
• Sheriff Octavia Johnson (R-Roanoke City)
• Sheriff Jack Stutts (D-City of Franklin and Southampton County)
• Hampton Roads Business Leaders: Mayor Will Sessoms, Bruce Thompson, Suzzy Kelly, Tom Frantz, and John O. 'Dubby' Wynne

News

• Update: Virginia attorney general race looks destined for recount November 13, 2013
• Vote totals continue to shift in race for Virginia Attorney General November 8, 2013
• Race for Virginia Attorney General remains too close to call November 6, 2013
• State executive official elections results, 2013
• State executive officials 2013 election preview October 27, 2013
• 2013 Primary election review: Democratic Senators Northam and Herring advance to general election June 12, 2013
• Election preview: Virginia Democrats gear up for state executive primaries June 10, 2013
• 2013 Convention review: Obenshain and Jackson join Cuccinelli on GOP statewide ticket May 20, 2013
• 2013 Convention preview: Virginia Republicans set to nominate state executives this weekend May 17, 2013
• Ballots are set for Virginia state executive primary and convention April 10, 2013

See also

• Attorney General of Virginia

External links

Suggest a link

• Virginia State Board of Elections
• Mark Herring - Official Campaign Website
• Rob Bell - Official Campaign Website
• Mark Obenshain - Official Campaign Website
• Justin Fairfax - Official Campaign Website