More Overtime in 94th House of Delegates Race

The extended vote count in the 94th House of Delegates district grows curiouser and curiouser as the State Board of Elections has announced that its previously scheduled drawing of lots to determine the winner is now postponed pending a lawsuit filed by Democratic challenger Shelly A. Simonds.

Graham Moomaw has the story at the Richmond Times-Dispatch:

Virginia’s State Board of Elections has postponed a scheduled tiebreaker in a Newport News-area House of Delegates race after Democrat Shelly Simonds announced an eleventh-hour legal challenge asking the judges that oversaw last week’s recount to reverse themselves and declare her the winner.

Simonds is expected to file legal paperwork in Newport News Circuit Court Wednesday asking the three-judge recount panel in the 94th House District to reconsider its “erroneous” decision to count one additional ballot for Republican Del. David E. Yancey late in the recount process.

The elections board was scheduled to meet Wednesday in Richmond at 11 a.m. to break the tie by picking a name at random from a bowl. Heeding a request for a delay from Simonds’ attorneys, the board decided late Tuesday afternoon to postpone the meeting to an undetermined future date to give the court time to take up the legal challenge.

Moomaw added that a news release would be forthcoming from the State Board of Elections, but it has not been distributed at the time this article was published. The decision to postpone was made late in the day; an NPR interview with SBE chairman James Alcorn aired at 4:34 p.m., with Alcorn describing the process for the scheduled drawing as though nothing was amiss.

The case Simonds aims to make revolves around a single ballot that had initially been rejected but was reconsidered by the recount court, which deliberated for more than two hours before deciding to accept the ballot as one cast for incumbent David Yancey (R-HOD94).

There is no case law in Virginia establishing a legal precedent for challenging a recount court’s finding of a tie and the State Board of Elections’ procedure to determine an outcome by lot. We’re in uncharted territory here and the Newport News Circuit Court will find itself in an unusual, not to say unique, position in accepting Simonds’ challenge.

That said, she and her legal team may have a strong argument to make with regard to the questionable ballot, if they choose to make it.

Here is the ballot that was accepted at the last minute by the recount court, changing the results from a one-vote victory for Simonds to a tie between her and Yancey:

Note that the bubbles for both Simonds and Yancey were filled in, but a line seems to cross out the Simonds bubble. The judges ruled that, given that all other votes cast by the voter were for Republicans, his or her intent was to vote for Yancey even though filling in both bubbles constitutes an “overvote.” Recount court judges are empowered by statute to make determinations of “voter intent.”

Yet here’s the rub.

Assuming that all procedures on Election Day were properly followed — and I believe the recount court would make that stipulation — the intent of the voter was to let the overvote stand, rather than cast a ballot for either Yancey or Simonds.

This is why: When the voter filled out his ballot and took it to the scanner on Election Day, the scanner — a vote counting device — would have rejected the ballot. The Election Officer would have said to the voter, “The ballot was rejected because you marked more than one candidate in one of the contests. Would you still like to cast the vote as it is?” At that point, the voter could have chosen to spoil his ballot and get another, which he could fill out correctly, or he could say to the Election Officer, “Go ahead and submit it as-is.” Only then could the Election Officer override the scanning device and allow the ballot to go through with the overvote.

(I know this because, as a member of Charlottesville’s Electoral Board, I trained poll workers in these procedures in every election from 2008 — when we first used paper ballots and scanning machines — through 2015. We drummed it into them.)

In other words, the voter intended to cast the ballot with the overvote intact, and chose to let it be submitted in the knowledge that his vote in that race would not count.

That is why it was correct for the recount officials to set it aside as an invalid ballot initially, and incorrect for the Republican recount official to ask the court to reconsider that decision to reject the ballot (which was made along with a Democratic counterpart).

Simonds’ team has a case to make but, given the void of legal precedent, she may not be allowed to make it. In any event, after the SBE draws a name to break the tie, the losing candidate has an opportunity to ask for another recount.

We could be counting the votes in this election well into 2018, which means that, when the General Assembly convenes, there will be a temporary Republican majority in the House of Delegates of 50-49, with Kirk Cox as Speaker.

See also Press Release from GOP Caucus about House District 94 Lawsuit.