By Laura Vozzella / The Washington Post
Lawyers for a Democrat locked in a tied Virginia House of Delegates race were preparing a lawsuit Tuesday, hoping to head off a name-drawing scheduled for Wednesday that will decide not only that race, but also which party controls the chamber.
In the suit, Democratic challenger Shelly Simonds will ask the Newport News Circuit Court to reverse its decision following a recount last week to count a disputed ballot for Republican incumbent David Yancey.
Simonds’ lawyers provided copies of the lawsuit but could not file it Tuesday because the court was closed.
Yancey appeared to beat Simonds by 10 votes on Election Day, but the Dec. 19 recount left Simonds ahead by a single vote.
The next day, a three-judge panel decided that a ballot that had been declared ineligible during the recount should count for Yancey, tying the race at 11,608 votes apiece. The ballot in question contained a mark for Simonds as well as a mark for Yancey, and an extra mark by Simonds’ name that the court ruled was an effort to strike out the mark in her favor.
If Simonds wins the seat, the House chamber will be split 50-50 between Republicans and Democrats, forcing the parties into a rare power-sharing arrangement. If Yancey wins, the Republicans will retain their majority by the slimmest possible margin.
The Democrat’s lawsuit asserts that the panel made a “clear legal error … [that] ran contrary to Virginia law” by counting the disputed ballot.
“[T]hese decisions were manifestly unjust and if followed by other recount courts, will create both unfair and inaccurate processes for future recounts,” the lawsuit claims.
A spokesman for House Republicans did not immediately respond to a request for comment.
A rarely invoked Virginia law requires tied elections to be settled by “lot.”
Members of the state election board are scheduled to gather in Richmond on Wednesday at 11 a.m. to draw the name of either Yancey or Simonds to represent the 94th House District, which encompasses part of the city of Newport News. Their names, written on paper and tucked inside two film canisters, will be plucked from a 180-year-old turquoise pitcher that was excavated from under long-buried stables in Richmond’s Capitol Square.
In a series of television interviews in recent days, Simonds had she was considering her legal options, including an appeal to the state Supreme Court. She accused Yancey of doing something “really sneaky” by pressing to have the disputed ballot counted.
Parker Slaybaugh, a spokesman for House Majority Leader R. Kirkland Cox, R-Colonial Heights, who becomes speaker if Republicans maintain control of the chamber, pushed back against that notion last week, saying, “Everybody played by the same rules here.”
The last — and perhaps only other — time the state settled a tied election by “lot” was in 1971, when candidates for a House seat in Fairfax – Republican William Moss and Democrat Jim Burch — each received 16,410 votes.
Moss won the seat after his name was drawn from a silver loving cup, according to a story in The Washington Post.
Virginia uses the same procedure several times a year to decide ballot order for candidates.
The lawsuit by Simonds focuses on a ballot that was discarded after last week’s five hour recount. The next day, Republicans challenged that decision in court, saying the unknown voter had selected every other Republican on the ballot and intended to vote for Yancey.
The judges — all of whom were elected by a Republican-controlled legislature — agreed.
The balance of power in the House stands at 50-49 in favor of Republicans until the Newport News race can be resolved.
The loser of the lot-drawing could also seek a second recount.
Before the Nov. 7 elections, Republicans outnumbered Democrats in that chamber by 66- 34. The GOP has a smaller, 21-19 edge in the state Senate, where ties votes can be broken by a Democratic lieutenant governor. With Democrat Ralph Northam set to take over as governor on Jan. 13, the party is primed to flex its newfound muscle.