Despite Republican efforts to invalidate votes that would favor Democratic attorney general candidate Mark Herring, Herring has officially won the Attorney General race by a thin margin, the State Board of Elections announced Monday.
But even though Herring has been elected to the position, that still doesn’t mean he will become Attorney General.
It is likely that Republican candidate Mark Obenshain will demand a recount; since only 165 votes decided this election, this demand would be entirely reasonable. But there is also the possibility that after a recount Obenshain will contest the race, in which case it will be subject to review by Virginia’s General Assembly. In Virginia, a losing candidate can contest a race if there was some irregularity in the management of the election that possibly changed the election’s outcome.
The burden of proof is on the losing candidate, but with a Republican majority in the General Assembly it’s possible that the General Assembly will accept minimal charges in order to discredit Herring’s win. If a losing candidate contests a race, the General Assembly not only has the power to decide if this contestation is fair; it also has the power to declare outright which candidate is the winner of the election.
This means that there is a real chance that Obenshain and the General Assembly will rob Herring of the attorney general position. Allowing a politically driven body to choose the winning candidate creates a strong possibility of party patronage, and it undermines direct democracy.
Historically, the attorney general has been elected through direct democracy — that is, the popular vote — and not representative democracy. Members of the General Assembly are also elected through direct democracy, so there is the argument that if the General Assembly decides the victor, that decision will be representative of what the people want. But when people vote in General Assembly elections they do so with the expectation that lawmakers will make legislative decisions, since that is the assembly’s primary function. People don’t vote for delegates and state senators with the expectation that the General Assembly will have final say in other elections; if they did, they might vote differently.
A voter might prefer the Republican candidate for the General Assembly and the Democratic candidate for the Attorney General or vice versa; these positions have different responsibilities, and voters don’t always vote based on their party affiliations. But in all likelihood, if elections are determined by the General Assembly, assemblymen will decide in favor of candidates from their own party. This is not necessarily representative of what voters want.
That doesn’t mean the General Assembly shouldn’t have jurisdiction over elections or that elections shouldn’t be contested. Contesting a race should be the right of a losing candidate, within appropriate restrictions. Elections are not always run well, and candidates should have the option to bring irregularities to the attention of their state’s legislative body; this is a helpful tool that can help ensure that our system of elections runs smoothly. But in this case this tool threatens to hinder direct democracy instead of helping it. The fact that the General Assembly can essentially appoint a candidate to an elected office — when an election has already determined a winner — is intolerable.
At most, if lawmakers find that the election was mishandled, the General Assembly should be restricted to calling for a special election. This is not a perfect response to a problematic election — voter turnout in special elections is not necessarily the same as in regular ones, and special elections cost the taxpayers more money. But this is certainly preferable to having the General Assembly declare a winner.
The populace of Virginia deserves to be governed by the leaders it actually elects. It will be unethical and unfair if this race is contested and the General Assembly decides to simply name Obenshain the attorney general based on its own authority. But even if the General Assembly handles the contestation of this race responsibly, the provision that allows the General Assembly to choose the winner should be dismantled immediately. It is undemocratic and unnecessary.
Dani Bernstein is an Opinion columnist for The Cavalier Daily. Her columns run Tuesdays.
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