Va. AG: When voters don’t decide

By Joshua A. Douglas
November 18, 2013

Voters decide who wins an election, right? Not necessarily.

In fact, we may see partisan operatives determine the winner in the razor-thin race for Virginia’s attorney general. After the initial count, Democrat Mark Herring is ahead of Republican Mark Obenshain by a mere 164 votes out of 2.2 million. If Herring remains on top after a recount and any federal court litigation, then the next step is for the Republican candidate to initiate an “election contest” with the Virginia General Assembly.

This election contest is a procedure in which the losing candidate disputes the certified results. States have varying ways to resolve these controversies — and most use a process that allows partisans to determine the ultimate winner.

There are better solutions, however, than allowing a partisan legislature to decide. We can minimize ideology, actual or perceived, by creating a bipartisan entity that would resolve a post-election battle.

Yet in Virginia an election contest goes to the General Assembly sitting as a joint session, with the speaker of the House of Delegates presiding. Republicans now control a majority of the Virginia General Assembly seats — and have been pushing through a socially conservative agenda.

Some states allow their elected judiciaries to decide a disputed election. Still others have stranger processes. In Texas, for example, the governor decides an election contest for the state’s Presidential Electors. Imagine the presidential election coming down to Texas — the governor would then hold the key to determining the outcome.

When election administrators hold partisan positions, they will inevitably face pressure to render decisions that help their side.

Consider that Ohio’s highest election official, the secretary of state, has been mired in disputes during each of the past few election cycles — regardless of which party held the seat. Both Democrats and Republicans have been blamed because this is a systemic problem.

Even if decisions of election operatives are fair-minded, the public will likely view their actions as partisan. This undermines the integrity of the entire election system.

These problems are amplified when an election is extremely close. One enduring narrative of the 2000 presidential election is that the “conservative” majority of Supreme Court justices decided Bush v. Gore in favor of the Republican candidate, George W. Bush, on ideological grounds. Though not necessarily true as a legal matter, this narrative persists because of the ideological appearance of the process.

By contrast, the result of the 2008 Senate dispute in Minnesota between incumbent Republican Senator Norm Coleman and Democrat Al Franken was far less charged because of the bipartisan nature of the trial court that heard the case. One judge was Democratic-leaning, one was Republican-leaning and one was known to be an independent — all from different parts of the state. The state supreme court’s unanimous decision upholding the lower court’s ruling in favor of Franken reinforced the message that the initial decision was not ideological.

What will happen if the Virginia attorney general’s election goes to the General Assembly? The debate will likely become mired in partisanship — especially if the Republican legislative majority rules in favor of the Republican candidate.

Even if the General Assembly is correct in its ruling, it is unfair to the winning candidate — and the electoral process — to have that win sullied by claims of partisanship.

Minnesota’s outcome was widely accepted precisely because it was bipartisan, with equal representation for each major political party on the three-judge court.

Some states have similar procedures that take the decision away from partisan legislators and judges. In New Hampshire, for example, a five-member Ballot Law Commission resolves election contests. The New Hampshire speaker of the House and president of the Senate each select two members (one from each major party), and the governor selects the last person, who must be qualified in election procedure. Though it may be impossible to remove partisanship entirely, there are ways to at least minimize it by reforming who hears these disputes.

Virtually every news story about the Virginia attorney general race has included a designation of the partisan make-up of the County Board that resolved the initial disputes over counting the ballots. Stories about federal court litigation now usually state the party of the president who appointed the judge in charge of making the decision. If this election goes to the General Assembly, reports will inevitably include a discussion of the legislature’s partisan make-up. This is unfortunate.

We should decide these post-election controversies without actual or perceived ideology. Our nation is ever more closely divided. And elections reflect this, as they increasingly go into overtime. We must reconsider the procedures we use to resolve these disputes, to remove partisan decision-makers from the process.

PHOTO (TOP): Virginia General Assembly. WIKIPEDIA COMMONS

PHOTO (INSERT): Mark Herring   Courtesy of MARK HERRING FOR AG.COM





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What is the issue here?

Unless their is physical documentation of fraud, the person that has one vote more wins!

The American public is getting tired of republicans disenfranchising voters, of their political gerrymandering, running to the judiciary in tears when they do not win, and then attempting to legislate minority rule.

It is not the poor, the elderly, the infirmed or disabled, immigrants, nor college students who are lazy.

It is republicans who are lazy!

They feel they can just throw money at a campaign and expect to win, and demand to win.

Republicans are too lazy to knock on doors and speak to people about issues in an environment that is not comfortable to them. That they may find their policies are not conducive to them to continue to be a minority or regional party.

Republicans have unknowingly boxed themselves into their gerrymandered districts of no growth.

Posted by Flash1022 | Report as abusive

Perspective, please.

The General Assembly has had this power to resolve contested elections for some time now, yet never exercised it. Every presidential cycle, the Congress meets in joint session to accept or reject the Electoral College votes from each state, yet in two hundred years has never exercised that power to change the election results.

Our legislatures have all sorts of powers to commit any number of horrible crimes, and stealing the VA AG election should rank way down on anyone’s list of such potential crimes. They don’t do these things out of fear of the people’s reaction to flagrant abuses of power. While it is certainly true that such fear could fail, and the people’s reaction could fail, in preventing a particular abuse of power, there simply is no adequate replacement for the final judgment of the people at making a democracy work.

All power can be abused, and tempts those who hold it to that abuse. Government must be granted power. We can’t institutionalize away the problem. The best that the institutions of government can do in a democracy is to insure that all of the abuses of power inherent in any form of govt would have to occur openly, in public, with clear lines of responsibility.

That is exactly why the final say in contested elections has to rest with legislatures, not courts.

In the aftermath of FL 2000, the Republicans had a clear choice of forums in which to steal that election from Gore. They could have let the FL judicial process order a recount that would have probably left Gore in the lead, and resulted in a court-ordered EC tally of 25 Gore votes. The FL legislature and governor would then have forwarded a tally of 25 Bush votes based on the official returns. Then, when this competing set of tallies hit the joint session of Congress, they could have used their House and Senate majorities to accept the Bush tally and reject the Gore tally from FL. Instead they chose to use their SCOTUS majority to steal the thing.

They made that choice because the people of the US, at this moment in history, are inclined to defer to the judiciary, to let them do their thing behind closed doors without looking into the overall shoddiness and particular partisan bias of their decision-making process. Bush v Gore was a greater abuse of power than anything the General Assembly could conceivably do in the AG race, and it was that way precisely because judges get to abuse power freely in our system, without the intense skepticism that our legislatures, quite justly, receive, but which we fail, quite wrongly, to direct with equal intensity at our courts.

Perspective, please. If the General Assembly steals this race, it will have to do so quite openly. If the Ds cannot then harness the people’s rage to throw the bums out next election, then we have lost something much more irreplaceable than the AG’s office. The real concern here should be that Obenshain’s people will try to steal this in the courts, and at the State Electoral Board, where public scrutiny will be at a minimum, and our side won’t be able to mobilize public opinion as well following any abuse of power.

Posted by gtomkins | Report as abusive

Mr. Douglas, I like your opinion. Love.

Posted by 2Borknot2B | Report as abusive

Good and true gtomkins

I am waiting to know how the apathy to the abuse by republicans to bullying into minority rule, that is the failure of a democracy, will no longer be accepted by the majority.

Will it be legislatively, a great leader comes forward, or will it be explosive with either a calamity or revolution?

I am not hopeful to what republicans are doing to this country.

Their intent is to tear it down and build it to their image.

They have nothing to lose for their minority values.

Posted by Flash1022 | Report as abusive