Court Tosses Out One-Vote Victory in Recount That Had Briefly Ended a Republican Majority in Virginia

A three-judge panel declined to certify the recount of a key House race today, saying that a questionable ballot should be counted in favor of the Republican and tying a race that Democrats had thought they had won by a single vote.

“The court declares there is no winner in this election,” said Newport News Circuit Court Judge Bryant Sugg, after the judges 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’ name.

Election officials presiding over the five-hour recount on Tuesday had discarded that ballot. 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 court’s decision leaves the race for the 94th District tied at 11,608 votes each for Yancey and Simonds.

And it leaves the balance of power in the state legislature at 49-51, in favor of Republicans – at least for now.

In the case of a tie in a House race, state law says the winner is chosen by lot – essentially, a coin toss.

James Alcorn, the chairman of the state board of elections, said the winner will likely be chosen by drawing a name out of a glass bowl. He said he is conferring with staff to figure out the date and method.

But it doesn’t end there. If the loser of the coin toss is unhappy with that result, he or she can seek a second recount.

News of the court decision pulsed through political circles that, just a day before, had been roiled by the notion that Simonds had taken the seat from Yancey by a single vote in the recount, ending 17 years of Republican control of the lower chamber.

As he was leaving the courthouse Wednesday, Yancey said “the ruling today makes certain every vote in this historic election was counted.”

Republican leaders said they became aware of the suspect ballot after the recount had been completed Tuesday – and after both Republican and Democratic observers signed off on the process, and Republicans congratulated Simonds.

“During the recount, election officials were presented with an overvote,” said a statement from House GOP leaders Kirk Cox, Tim Hugo and Nick Rush. “One Republican official, and a recount observer, believed at the time the ballot was a clear vote for Delegate David Yancey. However, a Democratic official persuaded the Republican official to not count the ballot. This morning, the Republican official wrote a letter to the recount court explaining that he made the wrong decision yesterday, and that he believes the ballot should count for Delegate Yancey.”

“We asked the recount Court to consider this ballot,” they said. “After review, the recount court agreed to count the ballot for Delegate Yancey. The Court has confirmed the election result as a tie vote.”

“While it appeared yesterday that Shelly Simonds was elected, it’s obvious now that the result will remain unclear for a while longer,” they said.

Simonds, who appeared on national media as recently as Wednesday morning as the surprise victor of a tense recount that reset state politics, could not immediately be reached for comment.

It is not clear whether a final decision in the Simonds-Yancey matchup will settle control of the House of Delegates.

Even as the court was considering whether to certify Tuesday’s recount in the 94th House District, two other recounts are taking place this week – at least one of which may further reshuffle politics in Richmond.

On Wednesday, officials were recounting ballots cast in Richmond’s District 68, where the Democrat leads by 336 votes. And a recount is set for Thursday in Fredericksburg’s District 28, where the Republican leads by 82 votes. Democrats have challenged that race in federal court, where they are seeking a new election because more than 100 voters were mistakenly given ballots for the wrong legislative district.