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Virginia Recount Ends in Tie, Control of State Government to Be Determined by Drawing Lots

Virginia Governor-elect Ralph Northam, a Democrat.
Virginia Governor-elect Ralph Northam, a Democrat. Win McNamee/Getty Images

Democrats have lost their one-vote lead in a state election that will determine control over the Virginia House of Delegates. The race is now a tie, and the State Board of Elections will determine a winner by drawing lots. If Democrat Shelly Simonds wins, Democrats will break the GOP’s 20-year chokehold on power in the House. If Republican David Yancey wins, the GOP will retain unified control of the state legislature.

Simonds appeared to have triumphed on Tuesday afternoon after a recount determined that she had received 11,608 to Yancey’s 11,607.
(Before the recount, Yancey led by 10 votes.) But the result remained unofficial until it was certified by a three-judge panel. On Tuesday night, a Republican recount official appointed by Yancey’s side submitted a letter asserting that an additional ambiguous ballot that should have been counted for Yancey. On the ballot in question, a voter had filled in the bubbles next to both candidates, but placed a strike through the bubble next to Simonds’ name.

Initially, the ballot was not counted for either candidate. But the recount official wrote that, upon further consideration—and after consultation with GOP lawyer Trevor Stanley—he decided that the ballot expressed an intent to vote for Yancey.

The three-judge panel examined the ballot and agreed to count the vote for Yancey. Their decision made the race a tie, 11,608–11,608. Under Virginia law, if a race is tied, the election board draws lots to determine the winner. There’s no set procedure for drawing lots, but the State Board of Elections has suggested it will place both names in a small canister, put the canisters in a glass bowl, shake it up, and pull one name out. That candidate will be declared the winner. (In the past, the board has also broken ties by asking a blindfolded person to draw a name from a large cup.)

Virginia Republican leadership has already claimed that the loser of this process may request a second recount, apparently because the statute governing ties states that “any person who loses the determination by lot may petition for a recount.” However, this provision seems to pertain only to ties following the initial vote tally. A separate statute states: “There shall be only one redetermination of the vote in each precinct.” It also notes that “the recount proceeding shall be final and not subject to appeal.” This law would seem to control a situation, like this one, in which a recount results in a tie. Thus, whoever loses the drawing of lots should be legally barred from demanding a second recount and would probably see an appeal tossed out. Nevertheless, a race this close that’s decided by chance is almost certain to spawn litigation.

If Simonds is ultimately victorious, the Virginia House will be divided 50–50 between Republicans and Democrats. This split will force the parties to enter into a power-sharing agreement, giving Democrats an opportunity to push for Medicaid expansion, as well as more influence over judicial selection. (The General Assembly elects the state’s judges.)

If Simonds loses, incoming Democratic Gov. Ralph Northam will have to govern with both houses of the assembly controlled by slim Republican majorities. This divided government will not reflect the will of the voters. In November, Democratic candidates won the state’s total House vote by nine points. Thanks to gerrymandering, their ability to break Republicans’ grasp on the House has come down to pure chance. In a democracy, the outcome of a wave election should not depend upon names drawn from a fishbowl.

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