Control of Virginia’s legislature hung in limbo Wednesday after a three-judge panel declined to certify the recount of a key House race, saying that a questionable ballot should be counted in favor of the Republican and tying a race that Democrats thought they had won by a single vote.
“The court declares there is no winner in this election,” Newport News Circuit Court Judge Bryant L. Sugg said after the panel deliberated for more than two hours.
He said the ballot in question contained a mark for Democrat Shelly Simonds as well as a mark for Republican Del. David Yancey, but that the voter had made another mark to strike out Simonds’s name.
Officials presiding over the five-hour recount on Tuesday had discarded that ballot en route to a historic reversal of the original election outcome. Yancey had emerged from Election Day with a 10-vote lead in the 94th District, but the recount uncovered enough additional ballots for Simonds to give her a one-vote victory.
That seemed to set up the House for a rare 50-50 split between Republicans and Democrats, ending 17 years of GOP dominance and making headlines nationwide.
But Republicans challenged that decision in court Wednesday, saying the voter had selected every other Republican on the ballot and intended to vote for Yancey.
The judges — all of whom were elected by a Republican-controlled legislature — agreed, leaving the race tied at 11,608 votes each for Yancey and Simonds. The balance of power in the House stands at 50-49 in favor of Republicans until the Newport News race can be resolved.
State law says the winner of a tied House race will be determined by lot — leaving the fate of the chamber to what is essentially a coin toss.
James Alcorn, chairman of the State Board of Elections, said the winner will likely be chosen by placing names on slips of papers into two film canisters and then drawing the canisters from a glass bowl (or his bowler hat). He said he is conferring with staff to figure out the date and method.
Complicating the tiebreaking vote is the need to ensure that both a Democratic and Republican representative of the three-member elections board will be available during the holidays.
Judges have been in recess for two hours. Debating whether or not to count a ballot that looks somewhat like this. They would not allow photos of the actual ballot. pic.twitter.com/1GAJBWoTrM
— Jordan Pascale (@JWPascale) December 20, 2017
This is my best recreation of what the ballot that created a tie looked like. We got to see the ballot up close for several minutes but weren't allowed to take photos. This is recreated from the Newport News sample ballot. The real ballot was white. pic.twitter.com/LfcFBTDeum
— Jordan Pascale (@JWPascale) December 20, 2017
BREAKING: We obtained the actual ballot submitted to the court.
Dissect away.https://t.co/cQneTM0tUk pic.twitter.com/Eeq4mEOtd9— Jordan Pascale (@JWPascale) December 20, 2017
“We were not planning to get together in the next week,” said Alcorn, a Democrat appointed by outgoing Gov. Terry McAuliffe (D).
House Minority Leader David J. Toscano (Charlottesville) is vying with his party’s longest-serving member, Del. Kenneth R. Plum (Fairfax), for the speaker position.
After the court’s ruling threw the balance of power back toward Republicans, Plum said he thinks Democrats need to be realistic about what’s ahead.
“Irrespective of these last-minute backs and forths, it’s clear that the people are divided in their choice,” he said. “And I think what’s incumbent upon us is that we do a power-sharing arrangement [with Republicans] where we can get some work done.”
