On Thursday, the Virginia Board of Elections drew lots to determine the winner in a tied race for the House of Delegates. The board drew Republican David Yancey’s name from a lovely ceramic bowl, declaring him the winner over Democrat Shelly Simonds. If this outcome holds, Republicans will maintain control of the House of Delegates, 51–49. Democrats won the aggregate House vote by nearly 10 points, but an incredibly effective GOP gerrymander appears to have deprived them of a majority.
Following the initial vote count in November, Yancey, the incumbent, held a 10-vote lead over Simonds. But a December recount found that, in fact, Simonds had won by a single vote, splitting the House 50–50. Before the recount could be certified by a three-judge panel pursuant to state law, a Republican recount official appointed by Yancey’s side gave the court a letter stating that an additional ballot should have been counted for Yancey. The voter had filled in the bubbles next to both Yancey and Simonds’ name, but had voted Republican across the board, and made a mark through Simonds’ bubble. According to the recount official, the ballot should be counted for Yancey.
The three-judge panel agreed. Its decision left the race in a deadlock, with both candidates receiving 11,608 votes. Simonds sued, alleging that the recount official had waited too long to assert his objection. But a court ruled against her, allowing the elections board to choose the winner by lots. It selected Yancey and certified him as the winner.
Simonds has not yet revealed her next move—if she has one—but it seems probable that she will demand another recount. After the first recount, Virginia Republican leadership claimed that the loser of the lot-drawing may request a second recount, citing a statute which states that “any person who loses the determination by lot may petition for a recount.” However, as I explained in December:
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.
Thus, there is a strong chance that Yancey will soon take his seat in the House, preserving Republican control over the Virginia legislature.
This outcome may well prevent Democratic Gov. Ralph Northam from expanding Medicaid in the state, as Republicans will hold both the speakership and committee chairs. It will also significantly diminish Democrats’ influence over judicial selections. (In Virginia, the legislature chooses state judges.) And, perhaps most obviously, Simonds’ defeat serves as a stark reminder of the power of gerrymanders. Republicans drew House districts along partisan lines to ensure that Democrats could never seize the chamber. Even in the face of a massive blue wave, they appear to have succeeded.
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