Tied Virginia Race (and Control of the House) to Be Decided at Random Today

by | January 4, 2018

By Jordan Pascale

The winner of the 94th House District race will be chosen at random by drawing names Thursday in Richmond.

Wednesday afternoon, a three-judge panel filed an order that denied an attempt to re-hear arguments about a contested ballot, clearing the way for the drawing.

It's unlikely a random tiebreaker has ever had this much political impact -- though a Republican speaker taking the gavel may be inevitable. More on that later.

Republican Del. David Yancey and challenger Democrat Shelly Simonds both have 11,608 votes after a roller coaster series of events.

At 11 a.m. a Board of Elections member will pull the winner's name out of a ceramic bowl from Virginia artist Steven Glass.

So far, there are no plans to delay the drawing due to weather, but officials will be monitoring the weather. Richmond is expected to get far less snow -- 1 to 3 inches -- than Hampton Roads.

We'll be streaming live at Facebook.com/virginianpilot, so you don't have to leave your home or office chair.

 

How will the winner be decided?

The tiebreaker, which is open to the public, will be in the West Reading Room of the Patrick Henry Building, 1111 E. Broad St., Richmond.

It's one of the largest rooms available on Capitol Square. Board of Elections officials expect high interest from the media and the public because of the rarity and importance of the event.

A Board of Elections member will print out names of the two candidates on separate slips of paper.

The slips will then be put into old film canisters and placed into the pitcher.

The canisters are mixed up and then Board Chairman James Alcorn will pull out one of the canisters. Whoever's name is on the slip of paper inside wins.

The other slip will be pulled out to show that both candidates names were included.

 

How did we get here?

A close election, a recount, a last-minute change by judges on a previously uncounted ballot and an ensuing battle in court.

On Nov. 7, Yancey won the election by 10 votes.

Simonds asked for a recount and on Dec. 19 she gained a net of 11 votes, making her the winner by a single vote.

The next day, a panel of three judges, which has to certify the results, heard arguments from Yancey's lawyers that one recount observer had second thoughts about a ballot. It was previously not counted for either candidate, and had both candidates' bubbles filled in. Simonds' bubble had a single diagonal slash mark through it.

When more than one bubble is filled in, it's known as an "over vote" and voided. To complicate matters, the same ballot had a bubble for gubernatorial candidate Ed Gillespie filled in with an X over it. The rest of the ballot was filled in regularly for Republicans.

But a three-judge panel decided the slash mark meant the voter didn't want to vote for Simonds.

It tied the election, 11,608 to 11,608, forcing the tiebreaker.

Many Democrats have argued the judges made the wrong call. Others have said head judge Bryant Sugg had potential conflicts of interest because he was appointed by a Republican General Assembly and Yancey and other Hampton Roads-area delegates had a part in recommending him to the bench.

Last week, both candidates filed court documents in Newport News to support their side. Simonds wanted the court to reconsider its decision and declare her the winner because she argued judges did not follow recount protocol.

Yancey agreed with the court and called for the drawing to happen.

After nearly a week of silence, Wednesday's filing from the judges ensured the drawing will go on. Judges wrote they were in their right to look at the ballot and said they followed Board of Election guidelines on determining the voter's intention.

"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," judges wrote. "The manifest injustice in 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 electoral process, and the destiny of our constitutional republic."

 

Why is this so important?

It will determine which party controls the lower chamber of the General Assembly. For nearly 20 years, Republicans have had a stronghold on the House.

If Simonds wins, it would be tied 50-50 and the parties would have to share power. It would likely mean a more cooperative body -- or one that bickers over issues often. There's no tiebreaker for votes in the House. If a bill doesn't get 51 votes, it automatically fails.

The General Assembly session begins Jan. 10.

If Democrats do get 50 seats, they still have a bit of work to do to get their policies passed. The Senate has a 21-19 Republican advantage, so Democrats would have to sway a Republican to vote on their side. In the Senate, the lieutenant governor, incoming Democrat Justin Fairfax, can break ties. Democratic Gov.-Elect Ralph Northam could then sign bills into law.

 

What happens next?

The winner will be seated in the House -- unless the loser objects, which is likely to happen.

Then, it could go back to another recount. It's unknown when or how that process would work.

Regardless, no one would be seated until the recount was over.

Del. Kirk Cox, who is vying to be Speaker, said no one would be seated in the event of a recount, giving Republicans at 50-49 advantage on opening day and Cox the speakership.

In a letter sent Wednesday, Simonds asked Yancey to a mutual agreement that they both respect the result of the drawing.

"We will both agree that there will be no further requests for recounts, no election contest, and no further litigation. And we will both insist that the winner of the lot drawing be seated on January 10, whomever that may be.

"This proposal is simple, clean, and will bring the quickest resolution to this election. And most importantly, it will ensure that our friends and neighbors (in the 94th District) have a voice in the House of Delegates on January 10."

Yancey's camp has yet to respond.

(c)2018 The Virginian-Pilot (Norfolk, Va.)