STEPHEN C. PIEPGRASS 804.697.1320 telephone 804.698.5147 facsimile stephen.plepgrass@troutmansanders.com

TROUTMAN SANDERS

TROUTMAN SANDERS LLP Attorneys at Law

Troutman Sanders Building 1001 Haxall Point

P.O. Box 1122 (23218-1122) Richmond, Virginia 23219

804.697.1200 telephone troutmansanders.com

November 27, 2013

The Honorable Bevill M. Dean Clerk City of Richmond Circuit Court John Marshall Courts Building 400 North 9th Street Richmond, Virginia 23219

Re: Mark D. Obenshain, Petitioner v. Mark R. Herring, Respondent — Petition for Recount of Attorney General Election

Dear Mr. Dean:

Please find enclosed the original and a copy of the Petition for Recount of an Election, which we are filing on behalf of Mark D. Obenshain. Enclosed is a check made payable to the City of Richmond Circuit Court for $86.00 to cover the filing fees.

Counsel for Senator Herring has agreed to accept service of process. Our courier will wait for a filed stamped copy of the Petition so that it can be served immediately given the abbreviated schedule applicable to recounts.

You also will find enclosed for filing Petitioner's Memorandum in Support of Petition for Recount of an Election. I have enclosed a courtesy copy of the Petition and Memorandum in Support, which I would appreciate you bringing to the attention of Chief Judge Cavedo as soon as possible, as this is a matter requiring expedited review.

Please do not hesitate to contact me if you have any questions.

Sincerely,

Stephen C. iepgrass Enclosures

cc: Marc E. Elias, Esq. (by mail) Don Palmer, Secretary, State Board of Elections (by hand)

21566503v1

ATLANTA BEIJING CHICAGO HONG KONG NEW YORK NORFOLK ORANGE COUNTY PORTLAND

RALEIGH RICHMOND SAN DIEGO SHANGHAI TYSONS CORNER VIRGINIA BEACH WASHINGTON, DC

COVER SHEET FOR FILING CIVIL ACTIONS COMMONWEALTH OF VIRGINIA

Case No. (CLERK'S OFFICE USE ONLY)

City of Richmond

Circuit Court

Mark D. Obenshain viln re: PLAINTIFF(S)

Mark R. Herring

DEFENDANT(S)

I, the undersigned [ ] plaintiff [ ] defendant [x] attorney for [x] plaintiff [ ] defendant hereby notify the Clerk of Court that I am filing the following civil action. (Please indicate by checking box that most closely identifies the claim being asserted or relief sought.)

GENERAL CIVIL Subsequent Actions

[ ] Claim Impleading Third Party Defendant [ ] Monetary Damages [ ] No Monetary Damages

[ ] Counterclaim [ ] Monetary Damages [ ] No Monetary Damages

[ ] Cross Claim [ ] Interpleader [ ] Reinstatement (other than divorce or

driving privileges) [ ] Removal of Case to Federal Court

Business & Contract [ ] Attachment [ ] Confessed Judgment [ ] Contract Action [ ] Contract Specific Performance [ ] Detinue [ ] Garnishment

Property [ ] Annexation [ ] Condemnation [ ] Ejectment [ Encumber/Sell Real Estate [ ] Enforce Vendor's Lien [ ] Escheatment [ ] Establish Boundaries [ Landlord/Tenant

[ ] Unlawful Detainer [ ] Mechanics Lien [ ] Partition [ ] Quiet Title [ ] Termination of Mineral Rights

Tort [ ] Asbestos Litigation [ ] Compromise Settlement [ ] Intentional Tort [ ] Medical Malpractice [ ] Motor Vehicle Tort [ ] Product Liability [ ] Wrongful Death [ ] Other General Tort Liability

ADMINISTRATIVE LAW [ ] Appeal/Judicial Review of Decision of

(select one) [ ] ABC Board [ ] Board of Zoning [ ] Compensation Board [ ] DMV License Suspension [ ] Employee Grievance Decision [ ] Employment Commission [ Local Government [ ] Marine Resources Commission [ ] School Board [ ] Voter Registration [ ] Other Administrative Appeal

DOMESTIC/FAMILY [ ] Adoption

[ ] Adoption — Foreign [ ] Adult Protection [ ] Annulment

[ ] Annulment — Counterclaim/Responsive Pleading

[ ] Child Abuse and Neglect —Unfounded Complaint

[ ] Civil Contempt [ ] Divorce (select one)

[ ] Complaint — Contested* [ ] Complaint— Uncontested* [ ] Counterclaim/Responsive Pleading [ ] Reinstatement —

CustodyNisitation/Support/Equitable Distribution

[ ] Separate Maintenance [ ] Separate Maintenance Counterclaim

WRITS [ ] Certiorari [ ] Habeas Corpus [ ] Mandamus [ ] Prohibition [ ] Quo Warranto

PROBATE/WILLS AND TRUSTS [ ] Accounting [ ] Aid and Guidance [ ] Appointment (select one)

[ ] Guardian/Conservator [ ] Standby Guard'an/Conservator

[ ] Trust (select one) [ Impress/Decla [ ] Reformation

[ ] Will (select one) [ ] Construe [ ] Contested

MISCELLANEOUS [ ] Appointment (sele

[ Church Trustee [ ] Conservator of Peace [ ] Marriage Celebrant

[ ] Bond Forfeiture Appeal [ ] Declaratory Judgment [ ] Declare Death [ ] Driving Privileges (select one)

[ ] Reinstatement pursuant to § 46.2-427 [ ] Restoration—Habitual Offender or 3"I

Offense [ ] Expungement [ ] Firearms Rights — Restoration [ ] Forfeiture of U.S. Currency [ ] Freedom of Information [ ] Injunction [ ] Interdiction [ ] Interrogatory [ ] Judgment Lien-Bill to Enforce [ ] Law Enforcement/Public Official Petition [ ] Name Change [ ] Referendum Elections [ ] Sever Order [ ] Taxes (select one)

[ ] Correct Erroneous State/Local [ ] Delinquent

[ ] Vehicle Confiscation [ ] Voting Rights — Restoration [x] Other (please specify)

Petition for Recount

DECEIVED FILL CIRCUIT COURT

NOV 2 7 Zola

BEVILL M, DEAN, CLEF BY

[ ] Damages in the amount of $ are clai ed.

November 27, 2013 DATE [ ] PLAINTIFF [ DEFEND [-] ATTORNEY FOR. [-] PLAINTIFF

[ ] DEFENDANT

Stephen C. Piepgrass (VSB No. 71361) PRINT NAME

Troutman Sanders LLP, 1001 Haxall Point ADDRESS/TELEPHONE NUMBER OF SIGNATOR

P.O. Box 1122, Richmond, Virginia 23219 / (804) 697-1320

FORM CC-1416 (MASTER) PAGE ONE 10/12

"Contested" divorce means any of the following matters are in dispute: grounds of divorce, spousal support and maintenance, child custody and/or visitation, child support, property distribution or debt allocation. An "Uncontested" divorce is filed on no fault grounds and none of the above issues are in dispute.

Civil Action Type Codes (Clerk's Office Use Only)

Accounting ACCT Adoption ADOP Adoption — Foreign FORA Adult Protection PROT

ADD AMEX ANUL

Annulment — Counterclaim/Responsive Pleading... ACRP Appeal/Judicial Review

ABC Board ABC Board of Zoning ZONE Compensation Board ACOM DMV License Suspension JR Employment Commission EMP Employment Grievance Decision GRV Local Government GOVT Marine Resources MAR School Board JR Voter Registration AVOT Other Administrative Appeal AAPL

Appointment Conservator of Peace COP Church Trustee AOCT Guardian/Conservator APPT Marriage Celebrant ROMC Standby Guardian/Conservator STND

Asbestos Litigation AL Attachment ATT Bond Forfeiture Appeal BFA Child Abuse and Neglect — Unfounded Complaint CAN Civil Contempt CCON Claim Impleading Third Party Defendant—

Monetary Damages/No Monetary Damages CTP Complaint — (Miscellaneous) COM Compromise Settlement COMP Condemnation COND Confessed Judgment CJ Contract Action CNTR Contract Specific Performance PERF Counterclaim — Monetary Damages/No Monetary

Damages CC Cross Claim CROS Declaratory Judgment DECL Declare Death DDTH Detinue DET Divorce

Complaint — Contested/Uncontested DIV Counterclaim/Responsive Pleading DCRP Reinstatement — CustodyNisitation/Support/

Equitable Distribution CVS Driving Privileges

Reinstatement pursuant to § 46.2-427 DRIV Restoration — Habitual Offender or

3"1 Offense REST

Ejectment EJET Encumber/Sell Real Estate RE Enforce Vendor's Lien VEND Escheatment ESC Establish Boundaries ESTB Expungement XPUN Forfeiture of U.S. Currency FORF Freedom of Information FOI Garnishment GARN Injunction INS Intentional Tort ITOR Interdiction INTD Interpleader INTP Interrogatory INTR Judgment Lien — Bill to Enforce LIEN Landlord/Tenant LT Law Enforcement/Public Official Petition LEP Mechanics Lien MECH Medical Malpractice MED Motor Vehicle Tort MV Name Change NC Other General Tort Liability GTOR Partition PART Petition — (Miscellaneous) PET Product Liability PROD Quiet Title QT Referendum Elections ELEC Reinstatement (Other than divorce or driving

privileges) REIN Removal of Case to Federal Court REM Restore Firearms Rights — Felony RFRF Restore Firearms Rights —Review RFRR Separate Maintenance SEP Separate Maintenance — Counterclaim/Responsive

Pleading SCRP Sever Order SEVR Taxes

Correct Erroneous State/Local CTAX Delinquent DTAX

Termination of Mineral Rights MIN Trust — Impress/Declare TRST Trust — Reformation REFT Unlawful Detainer UD Vehicle Confiscation VEH Voting Rights — Restoration VOTE Will Construction CNST Will Contested WILL Writs

Certiorari WC Habeas Corpus WHC Mandamus WM Prohibition WP Quo Warranto WQW

Wrongful Death WD

Aid and Guidance Annexation Annulment

FORM CC-1416 (MASTER) PAGE TWO 07/13

NOV 27 2.0R23

Case No.

BEV BY

ERK

VIRGINIA:

IN THIL CIRCUIT COURT FOR THE CITY OF RICHMOND JOHN MARSHALL COURTS BUILDING

RECEIVED AND F ED CIRCUIT COW T

MARK D. OBENSHAIN, ) )

Petitioner, ) )

v. ) )

MARK R. HERRING, ) )

Respondent. ) )

Serve: ) Mark R. Herring ) c/o Marc E. Elias, Esq. ) Perkins Coie ) 700 Thirteenth Street N.W. ) Washington, D.C. 20005 ) )

PETITION FOR RECOUNT

Pursuant to Virginia Code §§ 24.2-800, 24.2-801 and 24.2-802, Petitioner Mark D.

Obenshain ("Senator Obenshain"), by counsel, petitions the Court for a recount of the ballots

cast for Attorney General of the Commonwealth of Virginia in the November 5, 2013 general

election (the "Attorney General Election"). In support of his petition, Senator Obenshain states

as follows:

INTRODUCTION

1. This is a recount proceeding, brought pursuant to Virginia law in order to

ascertain the results of the closest statewide race in Virginia history. In the 2013 race for

Attorney General, out of 2,212,281 votes cast, in 2,558 precincts across Virginia, an apparent

difference of only 165 votes separates the Republican and Democratic candidates. The need for

accuracy and public confidence in the outcome require that a recount be held.

JURISDICTION AND VENUE

2. Jurisdiction and venue for this statewide recount proceeding are in the Circuit

Court for the City of Richmond, as provided by Virginia Code § 24.2-801.

PARTIES

3. Petitioner, Senator Obenshain, was the Republican candidate for Attorney

General in the general election held on November 5, 2013.

4. Respondent, Mark R. Herring ("Senator Herring"), was the Democratic candidate

for Attorney General in the general election held on November 5, 2013.

CERTIFICATION BY STATE BOARD OF ELECTIONS

5. Pursuant to Virginia Code § 24.2-679, on November 25, 2013, the Virginia State

Board of Elections (the "Board") ascertained what appeared to be the result of the Attorney

General Election, certified the number of votes given to each candidate and certified the apparent

winner of that election.

6. More specifically, the Board certified the results of the Attorney General Election

as follows:

Mark D. Obenshain 1,103,612 votes

Mark R. Herring 1,103,777 votes

Write-ins 4,892 votes

Total Votes 2,212,281 votes

Based on these results, the Board certified Senator Herring as the winner of the Attorney General

Election. A copy of the Board's certification is attached hereto as Exhibit A.

2

• 7. As shown by the foregoing figures, the Board's certification reveals a difference

of 165 votes between the votes cast for Senator Obenshain and the votes cast for Senator

Herring, which is .007 percent of the total votes cast for these two candidates.

AUTHORIZATION FOR RECOUNT

8. Virginia Code § 24.2-800(B) provides, in relevant part, that:

When there is between any candidate apparently nominated or elected and any candidate apparently defeated a difference of not more than one percent of the total vote cast for the two such candidates as determined by the State Board or the electoral board, the defeated candidate may appeal from the determination of the State Board or the electoral board for a recount of the vote as set forth in this article.

9. Moreover, Virginia Code § 24.2-802(E) provides, in relevant part, that the

counties and cities of the Commonwealth shall be responsible for the costs of the recount when:

there was between the candidate apparently nominated or elected and the candidate petitioning for the recount a difference of not more than one-half of one percent of the total vote cast for the two such candidates as determined by the State Board or electoral board prior to the recount.

REQUEST FOR RECOUNT

10. Senator Obenshain appeals the Board's November 25, 2013 certification and

petitions for a recount of the votes and redetermination of the election results as provided by

Virginia Code §§ 24.2-800(B), 24.2-801 and 24.2-802.

11. Because the difference in votes cast for Senator Obenshain and Senator Herring is

less than one-half of one percent, pursuant to Virginia Code § 24.2-802(E), the counties and

cities of the Commonwealth of Virginia, not the candidates, shall bear the costs of the recount in

the Attorney General Election.

PRAYER FOR RELIEF

WHEREFORE, Senator Obenshain respectfully requests the following:

3

1. That a Court be appointed to have the ballots in the Attorney General Election

recounted and, in the case of mechanical or direct electronic voting devices, the vote

redetermined, pursuant to Code § 24.2-801, and that such Court sit in all respects as a court

appointed and sitting under Virginia Code §§ 24.2-805 and 24.2-806.

2. That the Chief Judge of this Court call a preliminary hearing, pursuant to Virginia

Code § 24.2-802, at which:

(a) The Court may dispose of motions and fix procedural rules, both subject to

review by the full Court;

(b) The Court shall review all security measures taken for all ballots and voting

devices and direct, as it deems necessary, all appropriate measures to ensure

proper security to conduct the recount;

(c) The Chief Judge, subject to review by the full Court, may set the place or

places for the recount and may order the delivery of election materials to a

central location and the transportation of voting devices to a central location

in each county or city under appropriate safeguards; and

(d) The Court may enter such orders as it deems appropriate.

3. That the Court hold such other hearings and address such other matters as

provided by Virginia Code § 24.2-802.

4. That the Court determine and certify to the Board the vote given to each candidate

and declare the person who received the higher number of votes to be elected Attorney General

pursuant to Virginia Code § 24.2-802.

5. That the Court grant other relief as it may deem appropriate and just.

4

MARK D. OBENSHAIN

By:

William H. Hurd (VSB # 16967) Ashley L. Taylor (VSB # 36521) Stephen C. Piepgrass (VSB # 71361) Anne Hampton Andrews (VSB # 81806) Troutman Sanders LLP 1001 Haxall Point Post Office Box 1122 Richmond, Virginia 23218-1122 Telephone: (804) 697-1320 Facsimile: (804) 698-5147 william.hurd@troutmansanders.corn ashley.taylor@troutmansanders.com stephen.piepgrass@troutmansanders.com annehampton.andrews@troutmansanders.com

Counsel for Mark D. Obenshain

21554308v1

5

EXHIBIT

Statement of the votes cast in the counties and cities of the Commonwealth of Virginia for Attorne General at the November 5, 2013 General Election. There were cast:

Mark R. HERRING

Mark D. OBENSHAIN Write-In

COUNTIES (D) (R) Votes Accomack 3,789 5,184 16 Albemarle 19,876 14,679 44 Alleghany 1,627 2,395 6 Amelia 1,448 2,721 7 Amherst 3,008 5,857 8 Appomattox 1,301 3,692 12 Arlington 49,919 16,694 192 Augusta 5,160 14,959 30 Bath 402 785 2 Bedford 6,141 18,631 38

Bland 432 1,368 2

Botetourt 2,920 8,342 20

Brunswick 2,677 1,760 3

Buchanan 1,529 3,209 4

Buckingham 1,813 2,226 3

Campbell 3,787 11,776 16

Caroline 3,973 3,722 23

Carroll 2,240 5,466 9

Charles City 1,581 927 3

Charlotte 1,350 2,296 3

Chesterfield 46,508 57,099 358

Clarke 2,150 2,708 5

Craig 425 1,178 2

Culpeper 4,231 7,567 20

Cumberland 1,243 1,603 4

Dickenson 1,184 2,213 6

Dinwiddie 3,502 3,810 13

Essex 1,445 1,618 2

Fairfax 184,963 117,425 695

Fauquier 7,883 12,936 41

Floyd 1,565 2,935 3

Fluvanna 3,533 4,241 15

Franklin 4,981 11,031 27

Frederick 6,859 13,525 30

Giles 1,521 3,330 9

Gloucester 3,752 7,338 16

Goochland 3,369 5,683 20

Grayson 1,476 3,277 0

Greene 1,850 3,414 12

Greensville 1,723 1,105 1

Halifax 3,778 5,779 17

Hanover 12,621 25,705 161

Henrico 56,503 45,580 321

Henry 4,653 8,487 20

Highland 288 602 0

Isle of Wight 4,867 7,134 24

Statement of the votes cast in the counties and cities of the Commonwealth of Virginia for Attorney General at the November 5, 2013 General Election. There were cast:

Mark R. HERRING

Mark D. OBENSHAIN Write-In

COUNTIES (0) (R) Votes James City 11,708 14,952 76 King and Queen 982 1,153 1 King George 2,462 4,125 16 King William 1,878 3,277 18 Lancaster 1,895 2,564 14 Lee 1,146 3,611 5 Loudoun 47,349 41,316 187 Louisa 3,907 5,907 21 Lunenburg 1,419 1,819 7

Madison 1,624 2,756 5

Mathews 1,205 2,214 2

Mecklenburg 2,868 4,411 1

Middlesex 1,458 2,376 5

Montgomery 11,039 11,978 42

Nelson 2,685 2,588 16

New Kent 2,412 4,791 33

Northampton 2,020 1,854 6

Northumberland 2,101 3,033 10

Nottoway 1,830 2,096 8

Orange 3,929 5,954 29

Page 1,942 4,095 8

Patrick 1,412 3,548 3

Pittsylvania 5,627 12,411 20

Powhatan 2,693 7,356 26

Prince Edward 2,680 2,453 11

Prince George 3,816 5,375 31

Prince William 52,109 44,163 179

Pulaski 2,709 5,298 10

Rappahannock 1,325 1,572 8

Richmond 836 1,393 6

Roanoke 10,122 20,550 67

Rockbridge 2,546 4,046 10

Rockingham 5,426 16,562 41

Russell 1,857 4,124 7

Scott 1,084 4,185 5

Shenandoah 3,555 7,918 27

Smyth 2,113 5,338 9

Southampton 2,307 2,737 1

Spotsylvania 13,002 18,298 68

Stafford 14,460 19,232 76

Surry 1,559 1,076 7

Sussex 1,816 1,373 1

Tazewell 2,474 7,268 6

Warren 3,484 6,087 20

Washington 3,767 10,547 16

Westmoreland 2,128 2,181 9

Statement of the votes cast in the counties and cities of the Commonwealth of Virginia for Attorney General at the November 5, 2013 General Election. There were cast:

Mark R. HERRING

Mark D. OBENSHAIN Write-In

COUNTIES (D) (R) Votes Wise 2,080 6,092 17 Wythe 2,226 5,408 21 York 8,062 12,857 63

TOTAL COUNTIES 746,980 850,330 3,538

CITIES

Alexandria 30,279 10,423 115 Bristol 1,205 2,740 9

Buena Vista 425 803 2

Charlottesville 9,797 2,506 14

Chesapeake 30,706 31,700 157

Colonial Heights 1,310 3,631 17

Covington 562 674 1

Danville 5,158 5,182 4

Emporia 945 653 2

Fairfax 4,150 2,948 9

Falls Church 3,613 1,281 8

Franklin 1,343 933 4

Fredericksburg 3,672 2,297 10

Galax 446 816 1

Hampton 24,557 11,731 73

Harrisonburg 4,063 3,877 19

Hopewell 2,530 2,685 15

Lexington 941 558 3

Lynchburg 8,126 11,448 37

Manassas 4,124 3,997 18

Manassas Park 1,178 921 5

Martinsville 1,788 1,543 8

Newport News 25,036 16,694 100

Norfolk 31,404 13,716 140

Norton 335 524 2

Petersburg 7,219 953 15

Poquoson 1,130 3,216 20

Portsmouth 17,655 7,784 77

Radford 1,401 1,500 4

Richmond 44,684 12,678 133

Roanoke 11,931 9,462 34

Salem 2,437 4,652 19

Staunton 3,004 3,345 14

• .44kordiegf ice Chairman - - 2rir

, eccetary

Statement of the votes cast In the counties and cities of the Commonwealth of Virginia for Attorney General at the November 5, 2013 General Election. There were cast:

Mark R. HERRING

Mark D. OBENSHAIN Write-In

CITIES (D) (R) Votes

Suffolk 12,887 10,825 27 Virginia Beach 49,209 57,260 202 Waynesboro 2,029 2,900 7 Williamsburg 2,770 1,508 18 Winchester 2,748 2,918 11

Total Cities 356,797 253,282 1,354 Total Counties 746,980 850,330 3,538 Aggregate 1,103,777 1,103,612 4,892

Total Votes Cast 2,212,281

We, the undersigned members of the State Board of Elections, do hereby certify that the foregoing statement is true and correct.

We further certify that at a meeting held on November 25, 2013, having examined the certified abstracts on file in the office of the State Board of Elections of the votes given in the counties and cities of the Commonwealth at the General Election held on November 5, 2013, for Attorney General and having made the foregoing statement of the whole number of votes so given, we ascertained and determined that

MARK R. HERRING

having received the greatest number of votes cast in said election was duly elected to the office of Attorney General from the Commonwealth of Virginia for the term prescribed by law.

Given under our hands at Richmond, V ia, this 25th day of November, 2013.

, Chairman

RECEIVED AND r CIRCUIT COU T

NOV 2 I L013

CLERK D.C.

VIRGINIA:

IN THE CIRCUIT COURT FOR THE CITY OF RICHMOND John Marshall Courts Building

MARK D. OBENSHAIN, ) )

Petitioner, ) )

v. ) )

MARK R. HERRING, ) )

Respondent. ) )

MEMORANDUM IN SUPPORT OF PETITION FOR RECOUNT

Petitioner Mark D. Obenshain, by counsel, in support of his Petition for Recount

("Petition") submits this memorandum to assist the Court in its supervision of the recount of the

vote cast for Attorney General of the Commonwealth of Virginia on Tuesday, November 5,

2013.

IntroductionI.

The 2013 race of Attorney General is the closest statewide race in Virginia history. Out

of more than two million votes cast, only 165 votes now appear to separate the Republican and

Democratic candidates. Given that razor-thin margin, the need for accuracy and public

confidence in the outcome require that a recount be held. Accordingly, the Petitioner, Senator

Obenshain, has formally called for a recount, as provided by Virginia Code §§ 24.2-800, -801

and -802.

The last statewide recount in Virginia was in 2005, presided over by Judge Theodore J.

Markow of this Court; however, in the intervening eight years, there have been substantial

changes to the law governing recounts, making the recount procedure more thorough and, in

some respects, more challenging to administer. This memorandum explains that procedure for

the benefit of the recount court.

II. Overview of the Statutory Provisions For a Recount

A. Certification by State Board of Elections

On November 25, 2013, the State Board of Elections (the "SBE"), pursuant to Code §

24.2-679, certified the following results for the Attorney General election held on November 5,

2013:

Mark D. Obenshain: 1,103,612

Mark R. Herring: 1,103,777

Write-ins: 4,892

Total votes: 2,212,281

Based on these figures, Senator Herring was certified by the SBE as the apparent winner.

At the same time, however, the Chairman of the SBE noted that his vote to certify the election is

"with question," and explained that he is "concerned with the integrity of the data."

Under Virginia law, an individual not certified as the winner of an election may seek a

recount where — as here — the difference in votes cast for the two candidates is not more than one

percent of the total votes cast for those candidates.' Va. Code § 24.2-800.

Pending before the Court is the Petition for Recount filed by Senator Obenshain pursuant

to Code § 24.2-800, based on the 165 vote difference between the certified totals for the two

candidates. As provided by Virginia law, the recount launched by Senator Ob.enshain's petition

must be resolved by this special three-judge court. Va. Code § 24.2-801.

The 165-vote difference is only .007 percent of the total votes cast for Senator Obenshain and Senator Herring.

2

B. Recount versus Contest

Virginia law also provides that an election may be contested. See Va. Code § 24.2-803.

The General Assembly resolves any election contest. The fundamental difference between the

two procedures is that a recount focuses on the ballots actually cast and determines the number

cast for each candidate (potentially yielding a different result due, for example, to uncounted

ballots, addition errors, transposition of numbers, etc.), while a contest challenges the integrity of

the election process (raising, for example, issues such as voter ineligibility, fraud, significant

departures on election day from prescribed procedures).2

Importantly, although a recount does not resolve challenges to the integrity of the election

process, a recount does allow for discovery of any evidence that could be used in a later contest.

Va. Code § 24.2-802(B) ("Commencing upon the filing of the recount, nothing shall prevent the

discovery or disclosure of any evidence that could be used pursuant to § 24.2-803 in contesting

the results of an election").

C. The Composition of the Court and Hearings

Under Virginia law, a petition for the recount of a statewide election must be filed in the

Circuit Court for the City of Richmond. The Chief Judge of this Court is designated to sit on the

recount court along with two other judges appointed by the Chief Justice of the Supreme Court

of Virginia. Va. Code § 24.2-801. The law contemplates at least three hearings: a preliminary

hearing before the Chief Judge, a motion and procedure hearing before the full Court, and a final

hearing before the full Court.

2 Thus, the recount shall consider only votes cast in the election. Va. Code § 24.2-802(B). The recount shall not take into consideration any absentee ballots or provisional ballots ruled invalid and not cast, nor shall it take into account ballots cast only for "administrative or test purposes and voided" or ballots "spoiled by a voter and replaced with a new ballot." Id.

3

(i) Preliminary Hearing. The statute calls for a preliminary hearing to be held

within seven calendar days of the filing of the Petition. Va. Code § 24.2-802(B). Senator

Obenshain filed his Petition on Wednesday, November 27, 2013. Thus, a preliminary hearing

should be held by Wednesday, December 4, 2013.

In anticipation of the preliminary hearing, counsel for the parties have agreed to a

schedule under which they will work together to identify areas of agreement and areas of

disagreement, if any, about the content of a Preliminary Order. Under this schedule, counsel for

Senator Obenshain will provide counsel for Senator Herring with the draft of a suggested

Preliminary Order on November 27; and counsel for Senator Herring will provide comments and

suggested changes on Monday, December 2. This will allow time for discussions between

counsel for the parties on December 3, with each side submitting to the other, by the evening of

that same day, any motions or other items planned for submission to the Court at the preliminary

hearing. Consistent with this cooperative approach, both parties have agreed that the preliminary

hearing should be held on December 4, 2013 (assuming, of course, that this date is acceptable to

the Court).

At the preliminary hearing, the Chief Judge shall permit parties and their counsel, under

the supervision of the local electoral oards, to have access to "pollbooks and other materials used

in the election for examination purposes." Va. Code § 24.2-802(B) (but noting that individual

ballots may not be so examined at this point).

In addition, the Chief Judge "shall review all security measures taken for all ballots and

voting devices and direct, as he deems necessary, all appropriate measures to ensure proper

security to conduct the recount." Id. In addition, subject to review by the full court, the Chief

Judge may:

4

• dispose of motions and establish rules of procedures;

• "set the place or places for the recount;" and

• order the "delivery of election materials to a central location and the

transportation of voting devices to a central location in each county or city

under appropriate safeguards."

Id.

The Code does not specify whether the date of the recount is established at the first or

second hearings. We suggest that a tentative date for the recount be selected at the preliminary

hearing, and we will work with counsel for Senator Herring to develop, if possible, a joint

recommendation, with December 18 and/or 19 being prominent possibilities.

(ii) Motions and Procedure Hearing. After the full court is appointed, "it shall call

a hearing at which all motions shall be disposed of and at which the rules of procedure shall be

fixed finally." Id. The Court "shall fix procedures that shall provide for the accurate

determination of votes in the election." Id.

(iii) Final Hearing. "At the conclusion of the recount of all precincts," the Court

shall hold a hearing where, "after allowing the parties to inspect questionable ballots, and after

hearing arguments, the Court shall rule on the validity of all questioned ballots and votes." Va.

Code § 24.7-802(D). The Court then certifies the results to the State Board of Elections and

declares the outcome of the election. Id.

D. Recount Teams and Coordinators

The actual recounting of the votes in each city and county is conducted, under the

supervision of the Court, by two-member teams of "recount officials," drawn from the officers of

election for that city or county. The members of these teams are chosen by the two candidates,

S

with each candidate selecting one member of each team. In each city and county, the work of the

recount teams is coordinated by a pair of recount coordinators, including one Republican and one

Democratic member of the local electoral board. Va. Code § 24.2-802(C).

Despite these bipartisan arrangements, the 2005 statewide recount recognized that the

recount officials and recount coordinators serve as officers of the court and the candidates were

expressly forbidden from conducting any "training" of the recount officials and recount

coordinators. See Deeds v. McDonnell, Case No. CH05001751-00, Supplemental Recount

Procedural Order (City of Richmond Dec. 14, 2005). Similarly, the 2005 candidates were

prohibited from conducting any ex parte written communication with recount officials and

recount coordinators (other than communications addressing only the time and place of the

recount, the time and place of any officially-prescribed training and similar administrative

matters). Id. Senator Obenshain believes that these measures were well-advised, and he will ask

the Court to adopt similar measures in the current recount.

Each candidate may, of course, train and communicate with his own recount observers,

who are entitled to observe all aspects of the recount, but who cannot actually handle ballots or

interfere with the recount. See Va. Code § 24.2-802(C).

E. Procedural Changes

Procedures have changed significantly since the last statewide recount. The law now

requires that all optical scan ballots be re-run through ballot tabulators. Va. Code § 24.2-

802(D)(3); see also 2008 Va. Acts 682. Those tabulators must be specially programmed to count

only the Attorney General's race and to set aside all ballots that contain an apparent undervote,3

3 "`Undervote' means a ballot on which a voter casts a vote for a lesser number of candidates or positions than the number for which he was lawfully entitled to vote." Va. Code § 24.2-802(I).

6

an apparent overvote,4 or a write-in vote. Id. All ballots thus set aside and all optical scan

ballots that the tabulator would not accept and all optical scan ballots for which a tabulator could

not be properly programmed must be counted manually. The Virginia Public Access Project

estimates that approximately 712,000 optical scan ballots (not including provisional and absentee

ballots) will need to be re-run as part of the recount. Update: Scope of Potential Recount,

Virginia Public Access Project (Nov. 25, 2013), http://www.vpap.org/updates/show/1415.

Observers from both political parties estimate that there are thousands of votes in the

undervote/overvote category in the 2013 election that now will be counted as part of the recount.

See, e.g., Kenric Ward, Deeds legislation could wipe out Herring's lead in AG race,

Watchdog. org, http ://watchdo g.org/117686/state-attorney- general/ (Nov. 25, 2013); Ben

Tribbett, 25,000 AG Ballots Still Left To Be Counted, Not Larry Sabato,

http://notlarrysabato.typepad.com/ (Nov. 25, 2013).

These changes in the law since 2005 have at least three major consequences for the

current recount:

First, in jurisdictions using optical scan ballots, more recount officials will be needed

than were used during the 2005 statewide recount. Counsel for Senator Obenshain will work

with counsel for Senator Herring and the SBE to provide the Court with recommended numbers

of officials for each jurisdiction.

Second, the manual counting of ballots now plays a central role. Given the number of

ballots that will be counted manually, and given the small margin between the two candidates,

the manual count may well decide the outcome of the election, and it is vital that uniform

counting standards be applied statewide. The SBE has adopted a set of standards — ballot

4 "`Overvote' means a ballot on which a voter casts a vote for a greater number of candidates or positions than the number for which he was lawfully entitled to vote." Va. Code § 24.2-802(I).

7

exemplars — to guide the manual counting of ballots, See Va. Code § 24.2-802(D)(1) ("The

recount officials shall hand count the ballots using the standards promulgated by the State Board.

. ."); 1 VAC 20-80 (incorporating by reference "Ballot Examples for Handcouriting Paper-

Based Ballots for Virginia Elections or Recounts" adopted August 2001, revised May 2002,

November 2005, and June 2007). There will, of course, be occasions when there will be

differences of opinion on how these standards should be applied to particular ballots. In the

interest of unifoimity, Senator Obenshain will ask that, if there is any doubt about how a ballot

should be counted, the ballot should be sent to the Court for review by counsel for the parties and

a decision by the Court. Indeed, Code § 24.2-800 and the procedures adopted by the SBE call

for any "challenged" ballots to undergo precisely this sort of review by counsel and judicial

determination.5

Third, in 2005 the recount was conducted in a single day. This was possible because,

under the law then in effect, results from precincts using optical scanners were mainly

determined by reviewing the tapes printed on election night. Optical scan ballots were not rerun

unless the Court so ordered. In the 2005 recount, the Court ordered the rerunning of optical scan

ballots in a few precincts. Now that the law requires rerunning all optical scan ballots in all

jurisdictions, it is not yet clear whether every jurisdiction will be able to complete this task

accurately and efficiently in a single day. Some larger jurisdictions — including, notably, Fairfax

5

Code § 24.2-800(D) provides:

[The recount officials . • . shall submit the ballots or the statement of results used, as to the validity of which questions exist, to the court. The written statement of any one recount official challenging a ballot shall be sufficient to require its submission to the court....

At the conclusion of the recount of all precincts, after allowing the parties to inspect the questioned ballots, and after hearing arguments, the court shall rule on the validity of all questioned ballots and votes.

8

County — may require two days to complete the recount, a complicating factor that may

necessitate particular attention to logistics and ballot security measures.

In. Supporting Roles by Various Government Agencies

A. The State Board of Elections

The SBE is, of course, an integral part of any statewide recount. Not only does it have in

place a well-developed communications network with registrars and local electoral boards, but it

also has been tasked by the General Assembly with developing procedures for recounts.

Specifically, the SBE has been tasked with:

promulgat[ing] standards for (i) the proper handling and security of voting and counting devices, ballots, and other materials required for a recount, (ii) accurate determination of votes based upon objective evidence and taking into account the counting device and form of ballots approved for use in the Commonwealth, and (iii) any other matters that will promote a timely and accurate resolution of the recount.

Va. Code § 24.2-802.

Pursuant to this statutory mandate, the •SBE has adopted regulations governing

preparations for the recount, see 1 VAC 20-80-20, as well as detailed procedural guidelines

specifying how recounts may be efficiently conducted. See Virginia State Board of Elections,

Virginia Election Recount Step-by-Step Instructions (rev'd August 1, 2012), available at

http ://to wnhall.virginia. gov/L/View0D oc. cfrn ?gdid=5050.

The SBE already has begun training registrars and electoral board members on what to

expect from a recount and it will continue to play an essential role in continuing this training, as

well as providing training for local recount officials and coordinators.

Lastly, during the 2005 recount, the SBE retained an independent accounting firm to

assist in tabulating the results of the recount under the supervision of the Court. The Court may

wish to pursue a similar course of action in the current recount.

9

B. Law Enforcement

The Virginia State Police and local sheriffs also have a role to play in ensuring that the

recount proceeds smoothly. During the 2005 recount, the State Police were tasked with bringing

the official results and other election materials — including challenged ballots — from each of the

localities to the City of Richmond Circuit Court. The Court may want the State Police to play

this role again in this election recount.

Given the potential for inclement weather during the day(s) of the recount, it may be

prudent to task local sheriffs' departments with providing transportation for those recount

officials and recount coordinators who would otherwise be unable to travel to the venue(s) of

their local recount. Again, this was a procedure used in 2005 and that this Court may wish to

implement again.

Conclusion

All Virginians have an interest in a recount that is efficient, transparent and accurate.

Senator Obenshain looks foiward to working with the Court, Senator Herring, the SBE, local

electoral officials and others to ensure that this result is achieved.

Respectfully submitted,

MARK D. OBENSHAIN

By: Counsel

10

William H. Hurd (VSB No. 16769) Ashley L. Taylor, Jr. (VSB No. 36521) Stephen C. Piepgrass (VSB No. 71361) Anne Hampton Andrews (VSB No. 81806) Troutman Sanders LLP 1001 Haxall Point Post Office Box 1122 Richmond, VA 23218-1122 Telephone: (804) 697-1320 Facsimile: (804) 698-5147 william.hurd@troutmansanders.eom ashley.taylor@troutrnansanders corn stephen.piepgrass@troutmansanders.com atmehampton.andrews@troutmansanders.com

Counsel for Mark D. Obenshain

CERTIFICATE OF SERVICE

hereby certify that a true copy of the foregoing was sent by e-mail and U.S. Mail to the

following counsel for Respondent Mark R. Herring:

Marc E. Elias, Esq. Perkins Coie 700 Thirteenth Street N.W. Washington, D.C. 20005

274̀-̀ This, the day of November, 2013.

21553421v2

11 67426.000002 RICHMOND 15743600