GOP's Mark Obenshain Concedes in Virginia

With recount nearly complete, attorney general win goes to Democrat Mark Herring

By John Riley
Published on December 18, 2013, 6:54pm | Comments

At a Richmond press conference Wednesday afternoon, Virginia state Sen. Mark Obenshain (R) conceded the attorney general's race to state Sen. Mark Herring (D). Herring's victory secures a Democratic – and strongly LGBT supportive – sweep of all statewide offices in the Old Dominion for the first time since 1989.

''The recount is almost over, and it's become apparent that our campaign is going to come up a few votes short,'' Obenshain told reports at the press conference. ''But this is not the time to contest the process or question the results.''

Obenshain noted that Herring's initial 165-vote margin of victory was one of the closest statewide contests in Virginia history. Saying that he had called Herring to congratulate him, Obenshain then praised the volunteers who had helped his campaign during the recount, his staff for ''sticking through the bitter end,'' longtime associates, Republican Party leaders, friends and his family for their support throughout the campaign and vowed to find common ground with Herring and Gov.-elect Terry McAuliffe (D). Obenshain then embarked on a two-minute exposition where he recited a makeshift stump speech espousing Republican ideals.

''The fight for limited government, personal responsibility and personal freedom is not over,'' Obenshain said, vowing to fight for what he called ''mainstream conservative principles.''

Herring, who ran on a pro-LGBT ''Equality Agenda'' as part of his platform for the state's top law-enforcement position, initially trailed Obenshain but took the lead following a re-canvass of votes that uncovered several tabulation errors in counties throughout the state, and, most notably, the omission of hundreds of absentee ballots from the state's 8th Congressional District, which includes large swaths of the Fairfax County, the state's most populous jurisdiction.

Under Virginia law, if the margin of victory of an election is within a point, the losing candidate may demand a recount at his own expense, and if the results are reversed because of the recount, the state assumes the costs. Given the closeness of the initial margin, Obenshain asked for a recount. As of 6:30 p.m. Tuesday, with more than 73 percent of votes recounted, including the bulk of votes from Northern Virginia, Herring had picked up 1,133 votes and Obenshain had picked up 432, giving Herring an overall lead of 866.

Bill Hurd, legal counsel for the Obenshain campaign during the recount, told reporters following the concession that he expected the State Board of Elections to finish its count sometime Wednesday, with the three-judge panel overseeing the recount to declare Herring the winner by week's end.

''We needed to find more votes than we did,'' Hurd joked.

Despite the concession, Hurd said the Obenshain campaign was not asking the court to discontinue the recount, as many local election officials had invested significant time and effort into ensuring all votes were counted and tabulated accurately.

Herring followed up Obenshain's press conference with one of his own early Wednesday evening.

''This margin may not turn out to be the slimmest in history – we've picked up a number of votes along the way – but I've still got folks calling me 'Landslide Herring,' and that's okay,'' Herring said. ''It was an extremely close election, and I want to reassure everyone that, as I said on the campaign trail, I will wake up each and every day, ready to fight for justice, equality and opportunity for all Virginians.''

Herring said he looked forward to cooperating with the staff of current Attorney General Ken Cuccinelli (R) – who lost his bid for governor – during his transition into office, as well as with McAuliffe and Lt. Gov.-elect Ralph Northam (D) once in office.

In response to reporters' questions about Virginia's constitutional ban on recognizing same-sex relationships and whether Virginia colleges and universities are allowed to institute nondiscrimination protections for LGBT students and employees, Herring said that Virginia only has ''one AG at a time,'' and promised to follow up with more announcements on policy at a future date, so as not to undermine Cuccinelli – who has earned an anti-LGBT reputation during his term – as he serves out his term as attorney general.

With respect to marriage equality, Herring said his supportive position was common knowledge, particularly during the campaign. Regarding the nondiscrimination policies of colleges and universities, Herring said his position has not changed, that he still feels Cuccinelli's 2010 opinion blocking LGBT-inclusive antidiscrimination policies was wrongly decided, and that he intends to change that policy when he takes office.

Meanwhile, possibly foreshadowing future fights over social issues, Pat Mullins, chairman of the Republican Party of Virginia, issued a statement congratulating Herring on his victory, but also stressing that ''Virginia was founded upon the rule of law, laws which you will be sworn to uphold and defend.''

''The coming days will be exciting for you and your team as you transition into office,'' Mullins wrote, in part. ''But let me also remind you that you have won office by the barest of margins, yet you are charged with being an Attorney General for all of Virginia. That means enforcing and defending all of Virginia's laws, not just the ones you like.''

Herring's elevation to the attorney general now puts control of the state Senate into question, as Democrats must hold onto Herring's District 33 seat in eastern Loudoun and western Fairfax counties, and win a Jan. 7 special election to replace Northam in a seat covering the Hampton Roads and Eastern Shore regions of the state, in order to keep the Senate evenly split, but with Northam serving as tiebreaker.

Herring said he will submit a letter of resignation to the Senate, effective Jan. 11. He said he would like to issue a letter similar to one issued by Northam that would allow him to keep his seat until January while still allowing a special election to replace him to move forward in a timely manner so that his constituents will not be without representation for an extended period of time.

A date for the special election to replace Herring has not yet been scheduled. Last month, Democrats selected Jennifer Wexton, who lost a close race for commonwealth's attorney of Loudoun County in 2011, to be the Democratic nominee in that election. On Monday, Republicans selected John Whitbeck, the Republican Committee chairman of Virginia's 10tha Congressional District and an unsuccessful primary challenger to Del. Randy Minchew (R-Loudoun, Clarke, Frederick counties) for his seat in the state House of Delegates. Former Del. Joe May (R-Loudoun, Clarke, Frederick counties), who lost his seat to a conservative primary challenger this cycle, has also entered the race but will run as an independent.