The first 50-50 power balance in 17 years for Virginia’s House of Delegates rested on a single vote, from a recount, for less than 24 hours. Now it could literally come down to drawing straws.
The election in the 94th District is now a tie after a three-judge panel ruled Wednesday that a ballot that was rejected during Tuesday’s recount should have gone to three-term incumbent Del. David Yancey, R-Newport News.
“Well, I hear my voters,” Yancey said after the hearing. “And also we had a lot of people who voted for us, some who I suspected crossed over who maybe were going to vote one way but then voted for me because of what we were able to do for them in the community, working for them,” Yancey said.
State law says that a certified tie vote must be decided “by lot,” or a set of objects that are drawn or thrown from a container to decide something. While judges were in recess, all kinds of suggestions were thrown around in court on Wednesday, including a coin-flip or drawing straws. Some joked it should be a physical contest, or maybe a duel.
Virginia Board of Elections Chairman James Alcorn tweeted Thursday night that barring some kind of legal challenge, the board could meet as early as Friday to decide. He told The Associated Press the board would probably pick the winner the same way it picks ballot order. He said each candidate’s name is placed into a separate film canister. The canisters are placed into a glass bowl and shaken up. The canister containing the winner’s name is pulled out at random by a board member.
The end result has a serious consequence.
On Tuesday, in a stunning reversal of election results, Democrat and Newport News School Board member Shelly Simonds picked up a net 11 votes during a recount she had requested, giving her 11,608 votes and Yancey 11,607. That single vote, if certified, would have meant a House of Delegates divided right down the party line with 50 Republicans and 50 Democrats — 16 of whom were newly elected in a wave of blue votes last month.
Recounts are still scheduled in the 28th and 68th Districts. In the 28th District, in the Fredericksburg area, Republican Bob Thomas leads Democrat Joshua Cole by 82 votes. Democrats have filed a federal lawsuit there, asking for a special election because of errors that led more than 140 voters to cast ballots in the wrong district.
In Richmond’s 68th District, Republican Del. G. Manoli Loupassi is losing to his Democratic challenger, Dawn Adams, by 336 votes.
In Newport News Tuesday evening, a recount official appointed by Yancey’s team, Kenneth Mallory, told his wife and parents that a vote from the Warwick precinct wasn’t counted, and he thought it should have gone to Yancey, according to a letter he sent to the Newport News registrar’s office and to Yancey’s lawyer. That letter was submitted during Wednesday’s final recount hearing in Newport News Circuit Court, starting an hourslong debate over whether it could even be viewed.
A copy of the ballot shows that a voter filled in a bubble for Republican candidates Ed Gillespie for governor, Jill Vogel for lieutenant governor and John Adams for attorney general. There is an apparent X marked through the bubble for Gillespie. The voter had also filled in bubbles for both Simonds and Yancey in the 94th District box, but there was a slash through Simonds’ bubble.
In a recount, a machine does most of the counting but spits out ballots that it can’t read — overvotes, or ballots with too many bubbles filled in; undervotes, those with no bubbles filled in; and write-ins. Recount officials review these ballots individually to see if they can determine what the voter’s intent was, like one clear circle around a candidate’s name.
Each party chooses half of the 16 recount officials.
When the ballot in question came up Tuesday afternoon, Mallory wrote that he “initially felt strongly” about it going for Yancey because it appeared to be a straight Republican ticket otherwise. His counterpart at the table, who was appointed by Simonds’ side, disagreed, saying it wasn’t possible to decide what the voter meant.
It was all happening at once, Mallory said, and he got confused. After a back-and-forth that lasted three to four minutes, according to election officials, Mallory agreed to accept the ballot as an overvote, which meant it was not counted. He claims he felt hurried in making the decision.
“I now question whether we handled this ballot correctly,” wrote Mallory, who said he has been an elections official since 2008 but has never served in a recount. “Even before we had finished the day, before we had finished our other precincts, I had questions and reservations about my decision to consider the ballot as an indiscernible overvote. I do not feel like I made the right decision in this case.”
Ezra Reese, an attorney representing Simonds, argued there’s a process for when recount officials can’t decide on a ballot: it gets separated from the rest, and the court makes the final call. That didn’t happen here.
Reese argued that the ballot should either be thrown out or go to Simonds. The voter put an X on Gillespie’s bubble and a slash over Simonds’ bubble. If one of those is considered a mark of approval, the other one should be, too, he said. However, if the marks aren’t enough to show what a voter wants, state law says it should be tossed, as it originally was.
Yancey’s attorney, Trevor M. Stanley, argued the recount isn’t over until the judges certify the votes and they want to make sure every vote is counted.
The judges deliberated for several hours over whether they should look at the ballot, whether anyone could be sure which ballot it was and, finally, what the markings on it really meant. In the end, they ruled: yes, yes and Yancey.
Democrats later said they had a ballot from the Denbigh precinct that should be reviewed, but the judges said it wasn’t submitted in time.
Simonds didn’t return calls for comment on Wednesday.
Electoral board members Sean Devlin and Wendell Barbour, who helped oversee the recount, identified the ballot in court on Wednesday before attorneys and judges viewed it.
In an interview later, Devlin said most of the ballots not counted by the tabulating machines were not marked for any candidate. Most of the votes Simonds picked up in the hand-count review of ballots were from people who filled in the “D” to the right of her name, instead of the bubble to the left, which is what the tabulating machines are designed to register, he said.
Another team reviewing ballots counted one for Simonds that was marked in the same way as the ballot judges ruled on Wednesday, Devlin said.
State law says the recount proceeding is final and not subject to appeal. However, Marc Elias, lawyer for the Virginia House Democratic Caucus, refused to back down just yet.
“Today’s decision by the court was wrong, and Delegate-elect Shelly Simonds should have been certified the winner,” Elias said in a statement. “We are currently assessing all legal options before us as we fight for a just result. The Republicans themselves had affirmed that this result was accurate yesterday before changing their minds today. After conceding this seat and their majority, they are now desperately trying to claw both back ‘like a snarling dog that won’t let go of a bone’ ” — a description Elias took from a Richmond Times-Dispatch editorial.
The House of Delegates’ Republican leadership issued a written statement that said, “While it appeared yesterday that Shelly Simonds was elected, it’s obvious now that the result will remain unclear for a while longer.
“As we have said consistently throughout this process, we are committed to an open, fair and honest election in which every lawful vote is counted.”
State law suggests a couple different things on what happens next.
Recount law states that once a court certifies the results of a recount, the local electoral board and the State Board of Elections certifies it.
But the part of the state code that talks about tiebreakers says General Assembly races are supposed to go straight to the State Board of Elections. That body “decides by lot which of them shall be declared elected.” They’re supposed to give candidates reasonable notice of when this will happen.
The state code doesn’t say what objects are to be used for the drawing or how it should be done. The loser of the draw, according to law, can request a recount — seemingly restarting the entire process.
Ties come up rarely, and when they do, it is generally in small elections where no more than a few hundred votes are cast. In 2014, in the small town of Hillsville, a vote for the Sulphur Springs Ward ended with an 89-89 tie. The Carroll County Electoral Board wrote the names of Bill Tate Jr. and Billy Walls on separate slips of paper, sealed them in separate envelopes, put them into a box and drew one at random.
Tate took the seat.
