NEWPORT NEWS, Va. — Which party will control Virginia’s House of Delegates next year remains far from certain after a Democratic candidate petitioned a court to declare her the winner of a race that is officially tied.
Shelly Simonds has asked a three-judge panel to reconsider its decision to strip her of a one-vote victory she appeared to win after a dramatic recount of last month’s election in Newport News. Her lawyers argue that the judges committed clear legal errors, including the counting of a ballot for her Republican opponent, incumbent Del. David Yancey, after the recount ended.
So far, the court has scheduled no hearings on the matter. But the petition was enough for state elections officials to delay a plan to draw names from a bowl on Wednesday to declare a winner. State law prescribes the “drawing of lots” to resolve a race that has been certified a tie by a recount court. In a statement Tuesday, however, the elections board said such a drawing should only be used as a last resort.
Even if the court upholds the tie vote and names are drawn from a bowl, legal experts say the loser can still petition for a second recount.
Virginia’s General Assembly convenes Jan. 10, with party control of the House of Delegates hanging in the balance. The Republicans hold a 51-49 seat edge, which could change once this race is decided. If Simonds wins the 94th District, Republicans and Democrats will be forced to share power. Or chaos could ensue.
Court clerk Gary Anderson said the judges received Simonds’ petition on Wednesday, but he could not say when a hearing might take place if the panel decides to consider it. Court officials have said any hearing will likely require some planning ahead of time.
Parker Slaybaugh, a spokesman for the House Republican leadership, said party leaders are still reviewing Simonds’ filing to determine if they will file a response in court.
Simonds appeared to have lost November’s election by 10 votes to Yancey. Then she appeared to have won a recount by a single vote last week. A day later, the recount court in Newport News declared a tie.
Simonds’ lawyers claim the court erred when it allowed Yancey’s campaign to challenge a ballot after the recount ended. The ballot was identified only after a Republican election official raised concerns the following day.
On the ballot in question, the voter had picked Republican candidates in statewide races. For the 94th District, the voter filled in the bubble for Yancey and the bubble for Simonds. But he or she also drew a single slash through the bubble for Simonds.
Simonds’ campaign argues it was not given the same chance to identify and challenge ballots post-recount. The lawyers also said the ballot counted for Yancey had two extraneous markings, which should disqualify it from the vote.
Simonds’ campaign added that a ballot can be like a “Rorschach Test” and urged the court to seek advice from the Department of Elections and Virginia State Board of Elections in interpreting the ballot.
Board chair James Alcorn said in an email that the only way for the board to provide such guidance “would be for us to hold a public meeting.”
“If the court requests guidance from the entire State Board, we would comply with any court order,” Alcorn said.
But Alcorn said recount courts typically seek advice from the Department of Elections’ staff.
If the court stands by its decision and the elections board draws names, the loser could still petition the same court for a second recount, according to Rebecca Green, co-director of William & Mary’s Election Law Program.
“Virginia statute permits the loser of the draw to petition for another recount,” Green said. “In that case, the same recount procedure would happen a second time, meaning candidates would presumably have a second chance to challenge overvotes and other ballots.”
Reached by phone on Wednesday, Simonds said a second recount would be “negative for our community.”
She said the process would likely “descend into every ballot being contested to the courts.”
“And instead of the citizens making the determination on questionable ballots, it would be the courts. It’s better to have that process led by fellow citizens.”
Whoever wins the 94th District race, the fight over control of the House may not end there. A lawsuit is pending over ballots in a hotly contested race in the 28th District in the Fredericksburg area.