By Mechelle Hankerson
Democrat Shelly Simonds says elections officials didn't follow procedure in a recount that could swing the balance of power in the House of Delegates, and she will ask a court to declare her the winner of the 94th District race, according to court documents she plans to file Wednesday.
The winner -- either Simonds or Republican Del. David Yancey -- was to be determined by a drawing at 11 a.m. in Richmond. After Simonds' comments Tuesday, it was postponed.
Simonds will ask the Newport News Circuit Court to reconsider the decision to count one disputed ballot in Yancey's favor last week and name her the winner.
Simonds' team planned to ask that the drawing be delayed and for an expedited decision from the court.
"While our planned drawing for tomorrow was in full compliance with the Code of Virginia, neutral election administrators should not be choosing election winners -- or influencing the next Speaker of the House," State Board of Elections Chairman James Alcorn said Tuesday via Twitter. The drawing is a last resort, he said, and any concerns regarding the election or recount should be resolved before it takes place.
"This will best serve the voters of HD94 and the rest of the Commonwealth," he said.
"At the end of the day, this is really about the integrity of elections in Virginia," Simonds said during a conference call with reporters.
If a recount can occur the way it has in the 94th District, challenges to election results would become a "revolving spiral of courtroom filings," she said.
But House Republicans stood by Yancey and the court's decision last week.
"The integrity of the process is without question," said Parker Slaybaugh, a spokesman for the House Republican Caucus.
After the Nov. 7 election, Yancey led Simonds by 10 votes. She requested a recount, which resulted in a win by one vote for her. The morning those results were supposed to be certified, Yancey's lawyers showed the court a ballot they thought should be counted.
On it, the voter filled in both candidates' bubbles. Simonds' bubble had a single diagonal slash mark through it. It originally was not counted for either candidate.
When more than one bubble is filled in, it's known as an "over vote" and voided. 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.
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.
Simonds and her lawyers say that Yancey's lawyers didn't follow Virginia recount procedures.
"My opponent didn't like the outcome, so he made an end run around the rules," Simonds said.
The filing says that at the end of the recount, all ballots had been counted or set aside following State Board of Elections rules, and officials picked by both candidates agreed the recount was complete.
The ballot in question should have been challenged at the end of the recount, not the next day, Simonds' filing states. It allowed Yancey's team to make an "opportunistic end run" around recount law, the filing states.
Under Virginia law, Simonds' filing says, votes in a recount can only be redetermined once.
In all, the ballot in question has been reviewed three times, according to the filing.
"This really breaks the recount process in Virginia if this precedent stands," said Simonds' lawyer, Ezra Reese.
Pilot writers Jordan Pascale and Amir Vera contributed to this story.
(c)2017 The Virginian-Pilot (Norfolk, Va.)