The three judges who declared a tie in the 94th District House of Delegates race denied a request from Democrat Shelly Simonds Wednesday to reconsider their decision and name her the winner.
They asserted that they followed all the rules and properly ruled a ballot as a vote for Republican incumbent Del. David Yancey, which officially tied up the race. That was one day after an election recount found that Simonds had beaten Yancey by a single vote, temporarily signaling a 50-50 share of power between Republicans and Democrats in the House of Delegates for the first time since 2000.
The judges’ decision to deny Simonds’ request came one day before the State Board of Elections is scheduled settle the election by drawing a name from a stoneware bowl in Richmond.
The drawing will go on as scheduled at 11 a.m. Thursday since the judges issued their decision, board chairman James Alcorn tweeted. The board will monitor the weather, he said, as forecasters issued a blizzard warning for Hampton Roads and 2 to 4 inches of snow for Richmond.
On Wednesday, Simonds asked Yancey to make a pact not to ask for a recount if he loses the draw, and not to contest the election or pursue further litigation. State law says the loser of a tiebreaker can ask for a recount, but it doesn’t specifically address what happens if the result of the recount is a tie.
“And we will both insist that the winner of the lot drawing be seated on January 10, whomever that may be,” Simonds wrote in a letter to Yancey. She added, “I have no interest in prolonging this matter if it will deny the 94th District citizens representation at the beginning of session.”
In a separate statement, Yancey declined that offer, which the state GOP called a proposed “backroom deal.”
“While I appreciate Ms. Simonds’ letter stating that she will not seek a recount following the outcome of tomorrow’s drawing, I have always said I will follow the process laid out in state law. I am not going to deny myself or the people of the 94th district due process simply because of the unnecessary delays that have got us to this point.”
The candidates said separately Wednesday that they haven’t decided whether they’ll ask for a recount if they lose Thursday’s draw. While Simonds wrote that she did not want to prolong the dispute, she also said in the letter that she disagreed with the judges’ ruling and is considering all of her legal options.
In response to a question during a conference call with reporters, Simonds said she wasn’t clear on whether the law allows the loser to ask for a recount after a tiebreaker, since it’s the result of a recount.
If Simonds wins the draw, Republicans and Democrats would likely share equal power in the House of Delegates. But, that also depends on what happens with a legal challenge in the 28th District, where Democrats have asked for a special election after more than 140 voters were handed the wrong ballot on election day.
Last week, Del. M. Kirkland Cox, R-Colonial Heights — who has been the apparent choice for speaker of the house — said the 94th seat would likely be unfilled by the first day of the legislative session on Jan. 10 because the loser of the draw could ask for a recount. If that were true, 50 Republicans and 49 Democrats would be there on Jan. 10, allowing Republicans to choose the speaker of their choice.
After the judges ruled Wednesday, Cox’s joint statement with Yancey said Simonds’ motion “was never based in the law, and instead unnecessarily cost the people of the 94th a week to resolve this election…. It also can’t go without noting that since Election Day, Democrats have submitted nearly a dozen filings in various courts trying to overturn election results. All of them have failed.”
In the opinion issued Wednesday, the judges — Newport News Circuit Court Chief Judge Bryant L. Sugg, Powhatan Circuit Court Chief Judge Paul W. Cella and Chesterfield Circuit Court Judge David E. Johnson — say they rightfully reviewed a ballot in court on Dec. 20, one day after the recount. They also said they properly counted the ballot as a vote for Yancey, which tied up the race.
On the morning the judges had to decide whether to certify the recount results, they read a letter from recount official Kenneth Mallory, who said that one of the ballots that his team decided not to count should have actually gone to Yancey. Both lawyers made arguments, and the judges deliberated for hours before deciding to actually look at the ballot, then rule it a vote for Yancey.
Last week, in her legal paperwork, Simonds had argued that a ballot can only be challenged during a recount, not in a letter the next day in court, based on how recount rules work. Those rules do lay out a process for challenging ballots: separate the questioned ballot from the rest in the precinct during the recount, and have the judges decide when they meet.
However, the judges called the law’s language “plain and unambiguous.” The law says that a “written statement of any one recount official challenging a ballot shall be sufficient to require its submission to the court.”
The judges further argue that there isn’t any language that says this written statement can only be submitted at a certain time.
Even more generally, the judges argued that it’s their job to “resolve disputes” in election recounts, as long as they’re consistent with the State Board of Elections standards.
In his letter, Mallory wrote that he “strongly” believed the ballot should go to Yancey even though he was convinced on the day of the recount that it was an overvote — a ballot with too many bubbles filled in, making it invalid.
It had bubbles filled in for both Yancey and Simonds, with a slash through the bubble for Simonds. There was also an X through a filled-in bubble for Republican gubernatorial candidate Ed Gillespie.
The judges cited the State Board of Elections’ guidelines on how marks are considered. When a ballot has marks in the “target area” for a candidate that are partially erased, scratched out or “otherwise obliterated,” the ballot should be a vote for the candidate whose mark wasn’t erased or scratched out.
Then, they use Webster’s Third International Dictionary to define a scratch: “to cancel by drawing a line through.”
Rule 5 in the ballot guide also says that any other “mark or marks in the target area or candidate area for one candidate only, including circling the target area and/or the candidate’s name or making a mark through the target area or candidate’s name, provided no other candidate for that office is similarly marked, shall be counted as a vote for that candidate.”
The judges don’t address that in their ruling.
The judges concluded that it was their duty to make sure each vote was counted, to the best of their ability.
”The right of a citizen to cast a free vote has been secured to us by the blood of patriots shed from Lexington and Concord to Selma, Alabama,” the judges’ opinion stated. “The manifest injustice against which we must always guard is the chance that a single vote may not be counted. It matters not the importance of the disposition of a ballot in a given election; it matters the dignity of the citizen, the integrity of the electoral process, and the destiny of our constitutional republic.”
