On Wednesday, a day after a recount flipped Democrat Shelly Simonds' 10-vote deficit to a 1-vote lead, the three judges overseeing the process decided to count a ballot for Republican Del. David Yancey that had been rejected the previous day, throwing the race for Virginia's 94th House District into a tie. If the result stands, a winner would be chosen by drawing lots, likely next week but possibly later this week.
However, the latest outcome could very well change once again. Democrats haven't yet said how they'll proceed, but while one provision of state law says that recount proceedings "shall be final and not subject to appeal," that can't preclude litigation in federal court. Adding another wrinkle, a separate statute says that whoever loses the drawing of lots may seek another recount.
But whatever happens next, there are at least a couple of reasons why Wednesday's developments could get overturned. For one, there's the question of timeliness. Any objections to how the votes were tallied during the recount should have been brought up during the recount itself, but Yancey's team didn't raise its concerns about this uncounted ballot until Wednesday, when the panel of judges convened to finalize the results.
Then there's the ballot itself. Reporter Jordan Pascale obtained a copy of the actual ballot, which you can see here. In the race for delegate, the voter in question filled in ovals for both Simonds and Yancey, then appears to have made a slash through the bubble for Simonds (there’s also a squiggle leaking out of the right side of the bubble for Yancey). Making matters more confusing, the same voter darkened the bubble for Republican Ed Gillespie in the governor's race and crossed it out with an "X," while they filled in no other bubble in that contest. The judges determined that the voter intended to cast a ballot for Yancey, but that's far from clear.
The ultimate resolution to this race is as critical as they come: Republicans currently control 50 seats in the House of Delegates while Democrats have 49. If Simonds is the victor, then the GOP would be forced into a power-sharing arrangement with Democrats, something that happened once before, two decades ago. And there's still one other contest that remains unresolved: In the 28th District, Democrats have asked for a new election because at least 147 voters were given ballots for the wrong district, and Republican Bob Thomas leads Democrat Joshua Cole by just 82 votes. A hearing in that case is scheduled for Jan. 5.
