RICHMOND, Va. (WTVR) – Let me state it plainly: The Governor is right [see his statement highlighted below], Mr. Obenshain’s recount lawyers are amateurs when it comes to politics even though are very talented at the legal business.
Top flight lawyers all. But a recount is a political event, not a legal event.
So while Obenshain got the right lawyers for the legal part, he got absolutely the wrong ones for the political part.
They have recently hinted at the possibility of asking the Virginia General Assembly to decide the outcome of the race for Attorney General if they come up short a third straight time when a three-judge court hears their arguments and counts the ballots once again later this month.
If Herring comes up on top again – he currently leads by 165 votes, the closest margin ever for a statewide race – Obenshain has the constitutional right to ask the Virginia General Assembly to overrule the State Board of Elections and the Court.
Moreover, the legislative branches’ right to rule on the outcome of an election is constitutional. Therefore it is not subject to review in a state court although Herring could bring a federal court challenge. Talk about a Mess!
Here is what the Governor said yesterday:
“To get to that level where you essentially have the legislature make a decision as to whom the winner is, there would have to be evidence that the credibility of the election was called into question in some way that created a lack of confidence among the citizens,” McDonnell said in an interview with Norfolk radio station WNIS. “I think we are a long way away from that.”
Notice how the Governor sugar coated the bottom line message.
So let the Goldman Action Give It To Your Straight, No Ice, “Neat” as James Bond liked to say:
Obenshain’s lawyers are rank amateurs, totally out of the depth, AND IN THE PROCESS of ruining their client’s chance to be GOVERNOR.
That’s right. Since two-party competition got to Virginia, eight individuals have been elected Attorney General to date. ALL eight ran for Governor, seven winning their respective party’s nomination, one losing in the era’s most historic primary.
So we know for a fact that Mr. Obenshain intended to run for Governor in 2017 if elected and if the situation allowed.
BUT EVEN IF HE LOSES TO HERRING after the recount, history says he is still the GOP FRONT RUNNER for their gubernatorial nominee in 2017! In this era, there have been two close attorney general’s races. Four years later, the loser got his party’s gubernatorial nomination.
Right now, all the GOP may have his Obenshain in 2017.
Republican Governor McDonnell knows that. He is trying to send Obenshain and his lawyers a message: Don’t blow your image dude.
McDonnell knows it.
Conservative thinker and writer Stormin’ Norman Leahy gets it.
But not the $400 an hour lawyers for Obenshain. Veiled threats don’t work on judges.
Indeed, the whole Obenshain Recount strategy has been baffling from jump street.
“I think we are a long way away from that,” the governor said.
In that regard, the governor is being kind. A long way right now is the distance from here to the Big Apple.
A long way right now from asking the Virginia General Assembly to overturn the election results determined by a three-judge court after two previous counts of the ballots is the distance from here to Moscow, if not Mars.
Yes, Mr. Obenshain has a right – indeed he should insist on his right – to make sure he didn’t get screwed, that he lost fair and square if indeed he did lose. The same for Mr. Herring were the electoral shoe on the other foot. In that regard, his lawyers should be zealous advocates.
But having a right – and using it the right way – are two different things.
WHAT SHOULD OBENSHAIN HAVE DONE FROM JUMP STREET?
That’s easy really.
1. Hire a Democratic lawyer to lead his recount team. Why? The first thing he needed to do was take the politics out of the challenge to the best extent possible. Since Obenshain is not a charity case, you can get a big firm to handle it. The legal eagles don’t have to be Virginian either. But every one of these firms has a Democratic top dog, that’s the way things are done.
2. As with the Al Gore recount, you need to start from jump street making the whole thing AS A PR MATTER, about making sure every vote is counted as best and as accurately as possible. This is your mantra. Yes, the circumstances are different. But not the PR spin.
3. THE OBENSHAIN TEAM DOESN’T DIRECTLY CHALLENGE THE FAIRFAX RESULTS AS THEY DID. Rather, you get together a high profile group of registrars or former registrars favorable to the GOP candidate’s cause and they are the public face to any such challenge. They do it as a matter of professionalism, yada, yada, yada. It ain’t rocket science.
4. Obenshain travels the state in high profile events saying he feels obligated to make sure his people have their rights defended, they worked hard for him, yada, yada, yada. It’s not a “me” thing, but a “we” thing. He loves his state, yada, yada, yada. He will not do anything to hurt it, yada, yada, yada. It is the 4th of July everywhere he goes.
5. THE OBENSHAIN LEGAL TEAM MAKES CLEAR WHAT THE THREE-JUDGE COURT IS NOT GOING TO CONSIDER. This is the key to creating the political climate to allow a “contest” before the General Assembly if at all possible. Remember: Such a contest is almost guaranteed to fail if you bring it even under the best of circumstances.
BUT LAYING THE GROUND WORK FOR SUCH A CHALLENGE MIGHT HELP OBENSHAIN IF PROPERLY DONE even though never brought!
In 1960, Richard Nixon complained about having the election stolen from him by Chicago Mayor Dick Daley. It is now folklore. EXCEPT IT WASN’T TRUE.
And Nixon knew it. Even if you give Nixon all of Illinois electoral votes [which he claimed Daley's ballot stuffing tipped to Kennedy], Nixon still loses! JFK still has a majority of electoral votes!
Nixon knew that. But saying he was cheated helped keep his presidential ambitions alive since it suggested he could actually win such a national contest. 8 years later, Nixon got a second chance as GOP voters viewed him as their best choice for winning back the White House. Nixon was still viewed as a winner even though he won the nomination without any serious challenge in a primary to prove his vote getting ability remained.
Compare this to the situation in Washington State where the loser of the GUV race by roughly the same number of votes as Obenshain went to court, fought the thing all the way, a sore loser. He got crushed in a rematch. Admittedly, these are two different examples and the politics were far different.
BUT THE POLITICS IS THIS: Obenshain could help his image – and thus his chances in 2017 – if he appears to have been cheated yet accepts the loss for the good of the Commonwealth.
In effect, this turns a necessity – he ain’t likely to win anyway – into a virtue.
That’s the right strategy right now for him.
But if your lawyers are just worried about making legal arguments including constitutional ones, then they may be piling up billable hours at the client’s expense.
Governor McDonnell therefore decided to send his party and its presumptive 2017 nominee a message: In politics, you got to learn how, if necessary, to turn lemons into lemonade.
Obenshain’s lawyers may have some good legal arguments. But right now, they are losing the case in the court of public opinion.
In the end, that is the most important jury to their client by far.
Paul Goldman is in no way affiliated with WTVR. His comments are his own, and do not reflect the views of WTVR or any related entity. Neither WTVR nor any of its employees or agents participated in any way with the preparation of Mr. Goldman’s comments.