WASHINGTON ― Adding another wrinkle in the dramatic race that could decide control of the Virginia House of Delegates, a Virginia court on Wednesday rejected a legal challenge in the contested District 94 seat. The move paves the way for the race to be decided by a name-drawing on Thursday morning.
Last week, Democrat Shelly Simonds filed a motion arguing that the three-judge panel should not have considered a previously uncounted ballot in favor of her Republican opponent, David Yancey.
A recount completed in December determined that Simonds had won by just one vote. But Yancey, the incumbent, later sued, and the court ruled in his favor, bringing the race to a tie.
Simonds alleged that Yancey’s disputed ballot should not have been counted, and Democrats argued that it was a “desperate effort to change the outcome and steal the election” from Simonds.
The judges on Wednesday defended their decision to consider the ballot.
“The right of a citizen to cast a free vote has been secured to us by the blood of patriots shed from Lexington and Concord to Selma, Alabama,” they wrote in their ruling. “The manifest injustice against which we must always guard is the chance that a single vote may not be counted. It matters not the importance of the disposition of a ballot in a given election; it matters the dignity of the citizen, the integrity of the electoral process, and the destiny of our constitutional republic.”
Virginia law indicates that state officials are supposed to break an electoral tie “by lot.” The Board of Elections originally scheduled a meeting to conduct a random name-drawing on Dec. 27 but postponed it because Simonds’ campaign filed the lawsuit just hours before the name-drawing.
“Drawing names is an action of last resort,” board Chairman James Alcorn said in a statement. “Any substantive concerns regarding the election or recount should be resolved before a random drawing is conducted.”
Some of the court’s judges were out of town for the holidays, making it unlikely they would have considered Simonds’ motion before this week.
If Simonds were to win the seat, Republicans would lose their majority in the House of Delegates for the first time in 17 years.
However, the matter may not be resolved when the legislature convenes on Jan. 10, as Virginia state law notes that the loser of Thursday’s name-drawing can request another recount.
In a statement on Wednesday’s ruling, Simonds asked Yancey “to enter into a mutual agreement that the loser of tomorrow’s drawing will not request a second recount, contest the election in the House of Delegates, or pursue any other action challenging the result.”
“I am disappointed by the court’s ruling, with which I disagree,” Simonds said. “However, I recognize that the people of the 94th District deserve to have representation on Jan. 10, and a second costly recount is not in their interest. I respectfully ask Delegate Yancey to enter into a mutual agreement that the loser of tomorrow’s drawing will not request a second recount, contest the election in the House of Delegates, or pursue any other action challenging the result. I have no interest in delaying this process, and I hope Delegate Yancey and House Republicans agree.”
Simonds tweeted later Wednesday that Yancey had declined her offer.
I will continue to fight. Yancey has declined my offer to make the draw tomorrow final, so I guess the only sure thing is that this won't be settled tomorrow. I'm sorry that my district may not have representation Jan 10 because of this.
— Shelly Simonds (@shelly_simonds) January 3, 2018
In a press call Wednesday evening, Simonds declined to say whether she would definitely ask for a recount if she lost the name-drawing. But since Yancey had declined her offer to make the drawing final, she said all legal options were on the table.
This article has been updated with further comment from Simonds about Yancey’s declining her offer to not contest the results of Thursday’s drawing and what happens after that.
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