The Son of Hanging Chad: An Honest Look at What Happens Next

#VPBreaking: This is the actual disputed ballot that has now tied the #Virginia 94th House District race. pic.twitter.com/v9BLGFAdki

— The Virginian-Pilot (@virginianpilot) December 20, 2017

Virginia has been all over the news because of the drama currently taking place in the House District 94 recount that had, 1) the Republican winning, then, 2) a recount had the Democrat winning followed by, 3) Republicans filed suit over a questionable ballot which then caused, 4) the court to declare the ballot valid and the race a tie. That was going to be, 5) decided by drawing of names from a bowl until the last minute when, 6) Democrats filed a lawsuit declaring the questionable ballot as unacceptable.

And that’s where we are a few days before the new year.

In a nutshell, it all comes down to this:

If a three-judge panel affirms the questionable ballot is a vote for Mr. Yancey — as it did once before — the race would be deadlocked at 11,608 votes each, and a drawing of lots would be back on, as state law requires. If the ballot is thrown out, Ms. Simonds would be the winner by a single vote, and 17 years of Republican control of the House of Delegates would end.

When the New York Times took a look at what it described as Virginia’s voting mess, it noted that after the 2000 election between George W. Bush and Al Gore, this was never supposed to be able to happen again:

It was the electoral nightmare Virginia never wanted to experience: being host to a high-profile mess like the 2000 presidential election recount in Florida, with officials obsessing over questionable ballots as political power hangs in the balance.

So 17 years ago, the state began writing a guidebook on how to handle such situations. The latest edition includes pictographs of ballots marked in unconventional ways — names crossed out, several boxes checked, “My guy” scrawled over a candidate’s name.

That’s why Professor Rebecca Green, the co-director of the Election Law Program at William & Mary School of Law in Williamsburg, dubbed the current 94th District drama “the son of hanging chad.”

In reality, as noted in an earlier article by Bearing Drift’s Rick Sincere, the ballot in question should not have been accepted:

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).

That would make it appear to be an open-and-closed case but the court thought otherwise and we ended in a tied race. So where are we now?

PBS News Hour picks it up at this point:

So far, the court has scheduled no hearings on the matter. But the petition was enough for state elections officials to delay a plan to draw names from a bowl on Wednesday to declare a winner. State law prescribes the “drawing of lots” to resolve a race that has been certified a tie by a recount court. In a statement Tuesday, however, the elections board said such a drawing should only be used as a last resort.

Even if the court upholds the tie vote and names are drawn from a bowl, legal experts say the loser can still petition for a second recount.

Virginia’s General Assembly convenes Jan. 10, with party control of the House of Delegates hanging in the balance. The Republicans hold a 51-49 seat edge, which could change once this race is decided. If Simonds wins the 94th District, Republicans and Democrats will be forced to share power. Or chaos could ensue.

Court clerk Gary Anderson said the judges received Simonds’ petition on Wednesday, but he could not say when a hearing might take place if the panel decides to consider it. Court officials have said any hearing will likely require some planning ahead of time.

You can be sure that lawyers and the powers from both parties are busy in the background working any angle possible to make it work out for their side of the political aisle.

Which takes us back to the fact that the Republican Party of Virginia did not see this coming even though many signs were there that gave every indication it was going to be an uprising from women and those shocked at the election in November 2016 of Donald J. Trump. (Cue the Trump supporters once again rushing to his defense declaring that is not true.)

As a result, Virginia Republicans lost the 2017 Governor, Lieutenant Governor, and Attorney General positions to Democrats and then, in a shockwave that is still sending reverberations across the Commonwealth, 16 GOP delegates lost their races.

Let that sink in: 16. There was even talk in the pre-election days of November 7 that the GOP could pick up an extra seat for a super-majority. In absolutely no scenario was it suggested that a Democratic tsunami could hit RPV upside the head. And yet, with the huge losses, there have been no calls from higher-ups for a change in RPV leadership. It is one of the oddest things I’ve ever experienced in politics … huge losses for the party — the most in my memory — and yet the party appears prepared to allow John Whitbeck and John Findlay to remain.

The battle for control of the House will continue as Virginia Republicans cling to their diminishing power. Meanwhile, as the powers-that-be keep their heads stuck in the sand, Democrats continue building up their forces with an eye to 2018 and beyond. In light of the GOP’s refusal to listen or defend their long-time supporters but, rather, grovel to those who embrace the elements of white supremacy, alt-right, and neo-Nazism, not everyone thinks that’s a bad thing.

Stay tuned….