Grave threats to electoral integrity are happening right now in Virginia, and we need help bringing national attention to some very concerning shenanigans by an incumbent Republican delegate, especially since the majority in Virginia’s state legislature hangs in the balance.
Many of you may already be familiar with the recent state elections here in Virginia, in which a blue wave unexpectedly helped Democrats pick up 15 House of Delegates seats, leading to Republicans retaining a very slim majority of just 51-49 in that chamber. The Democratic victories of election night were bittersweet for those of us who volunteered for Democrat Shelly Simonds’ campaign for Delegate here in the heavily gerrymandered 94th district in Newport News, because she ended up 10 votes behind Republican candidate David Yancey after all the absentee and provisional ballots were counted. We were headed for a recount. Being just 10 votes behind was disappointing but nonetheless an impressive finish for Simonds considering that she did not even enter the delegate race until August, just 3 months before the election (after Yancey reportedly pushed the previous Democratic challenger Zachary Wittkamp out by going after his small business / unnerving his investors). Simonds entered the race at the beginning of August almost $200,000 behind Yancey in fundraising. (http://www.dailypress.com/news/politics/shad-plank-blog/dp-nws-shad-plank-0923-story.html)
The recount occurred on Tuesday, Dec. 19. Shelly Simonds WON the recount by a single vote, catapulting her campaign into national headlines. She was going to become Democrat #50 in the Virginia House of Delegates, breaking the Republican majority and forcing a power sharing arrangement between Republicans and Democrats. (https://www.washingtonpost.com/local/virginia-politics/democrat-wins-va-house-seat-in-recount-by-single-vote-creating-50-50-tie-in-legislature/2017/12/19/3ff227ae-e43e-11e7-ab50-621fe0588340_story.html?utm_term=.824a089ebadd) Tuesday night and Wednesday morning, Simonds was interviewed by Lawrence O’Donnell, Joe Scarborough, and CNN about her one-vote victory and about the changes she hoped to help effect in Virginia as delegate, such as increased funding for public schools and increased access to affordable healthcare (including Medicaid expansion).
At a recount, any contested ballots that Democratic and Republican recount officials can’t agree on are supposed to be sealed away in separate envelopes for judges to view to make sure they don’t get mixed in with other ballots and become difficult to identify. At the recount for Simonds and Yancey on Dec. 19, there were ZERO contested ballots. Democratic and Republican recount officials came to agreement and signed off on every single ballot, so there were no contested ballots to show the panel of judges. Therefore the court hearing the following morning was supposed to be a formality. Even the Virginia House Republicans released a statement acknowledging Shelly Simonds as the victor and agreeing to power sharing in the House of Delegates. (http://thehill.com/homenews/campaign/365664-dem-appears-to-win-recount-in-key-virginia-house-race-by-single-vote) Simonds’ legal team was so certain that the court hearing was just a formality that her lawyer attended court on Wednesday without her.
But that morning in court, three-term Republican incumbent David Yancey and his legal team pulled quite a stunt. One of the Republican election officials that Yancey had selected for the recount, Kenneth Mallory, had written a letter overnight claiming that a ballot he’d reviewed and signed off on alongside his Democratic counterpart as an overvote (ambiguous vote for two candidates), he later believed after Simonds’ one-vote victory should have been a ballot for Yancey. In court, Yancey’s legal team argued that Mallory was inexperienced and felt intimidated during the recount. But according to the Daily Press, Mallory has actually been a Republican elections official since 2008, hardly making him inexperienced (http://www.dailypress.com/news/newport-news/dp-nws-94th-district-judge-certification-20171220-story.html). Also, I was seated at the table beside Mallory at the recount and I can attest that Mallory was cool, calm, and collected the day of the recount. I saw him carefully comparing the ballots in front of him to the 15-page packet of sample ballots provided to all recount officials by the Virginia Board of Elections to help identify overvotes and undervotes and clarifying what is and is not a valid vote in a recount. Yancey’s legislative aide Gretchen Heal claimed that Mallory’s letter was a “surprise” to Yancey’s team (http://www.dailypress.com/news/newport-news/dp-nws-newport-news-simonds-reaction-20171221-story.html). However, Yancey’s campaign office was seen crowded with people on Tuesday night after he lost the recount by one vote, drawing into question whether the letter was truly a “surprise” or a last ditch effort by Yancey’s team to overturn his one-vote loss and hang onto power.
The panel of three circuit court judges who convened the day after the recount — for what was widely understood to be a formality to certify the recount results — were all appointed by Republicans. David Yancey himself was instrumental in helping the head judge on the panel, Circuit Court Judge Bryant L. Sugg, get appointed to his position on the Circuit Court by the state legislature in 2014. (http://www.dailypress.com/news/newport-news/dp-nws-newport-news-sugg-recusal-20171221-story.html)
An image of the ballot that Yancey used as the ultimate Hail Mary in court is here. https://s3.amazonaws.com/vpap-production/media/photos/Visuals/DRhM54HVoAAdbgg+(1).jpg. As you can see, it is a very ambiguous ballot, with both Simonds’ and Yancey’s names bubbled in, and an unclear slash mark beside Simonds’ bubble. The voter also made slash marks through the bubble they filled in for Republican gubernatorial candidate Ed Gillespie, raising the possibility that the voter could have been using the slashes as clarifying marks on the ballot. The image of the ballot has gotten a lot of media attention at the state level, and some even at the national level (CNN’s Michael Smerconish posted a poll with it online (and for the record, most of the poll respondents felt it was a spoiled ballot)). Many who have viewed the ballot have weighed in to note that especially due to the slash marks / clarifying marks over Gillespie’s bubble, it is not possible to determine the voter’s intent. So it makes sense that the ballot was deemed an overvote (vote for two candidates) and dismissed by officials at the recount. In a Daily Press article, Colorado Elections Director Judd Choate noted that the ballot that the judges used to overturn the recount results in favor of Yancey would have been thrown out in Colorado as a spoiled ballot. “The ‘x’ and filled-in oval next to Republican gubernatorial candidate Ed Gillespie’s name, and the single line struck through the filled in oval next to Simonds’ name, when the oval next to Yancey’s name was also filled in don’t give a clear indication of the voter’s intent in either race,” he said. (http://www.dailypress.com/news/politics/dp-nws-elections-tie-20171221-story.html)
Shockingly, the judges ignored recount protocol that contested ballots are supposed to be identified DURING the recount and sealed away in separate envelopes. They ruled that the ballot was a vote for Yancey and declared the race a tie. (http://www.dailypress.com/news/newport-news/dp-the-94th-recount-20171219-photogallery.html)
“Just before the hearing ended, Simonds’ lawyer said there was a ballot in the Denbigh precinct that they had issues with. The judges said it was too late to review that ballot (www.dailypress.com/...).” So disturbingly, this panel of Republican-appointed judges seemed to believe that overvote ballots cherrypicked after the citizen-led recount had ended and officially been signed off on by both parties are only worthy of a second look if they benefit the Republican candidate….
The day after the judges’ ruling, local media reported on the revelation that Judge Sugg had benefitted from Yancey’s selection of Sugg for consideration by the state legislature for circuit court. This led many to question why Judge Sugg had not recused himself.
“If I were him and thought there was going to be any concern at all, I probably would have recused myself knowing there is no shortage of judges that could have done this,” Quentin Kidd, director of the Judy Ford Wason Center for Public Policy at Christopher Newport University told the Daily Press. “Sometimes you just have to be overly cautious in situations like this because the stakes in terms of public confidence in the process are too high.” (http://www.dailypress.com/news/newport-news/dp-nws-newport-news-sugg-recusal-20171221-story.html)
Absurdly, the Virginia State Board of Elections is now going to determine the delegate of the 94th district by “drawing lots” – pulling names out of a container. The drawing will take place on Wednesday in Richmond at 11 a.m. (https://www.elections.virginia.gov/Files/Media/ELECTMediaTechnicalAdvisory12-23-17.pdf)
It’s hard to imagine a less democratic way of choosing a delegate than a random drawing. Especially when the majority in the Virginia House of Delegates also hangs in the balance.
I think the only hope we have for electoral justice for district 94 is if we can get as many eyes as possible on this situation. Please, please help us bring more national attention to this.
In response to the electoral crisis that is going on in district 94, Newport News area progressives have organized two Rallies for Electoral Integrity that are planned for Wednesday at 11 a.m., at the same time as the random drawing by the Virginia Board of Elections. One will be in Richmond outside of the building where the VBOE’s drawing is taking place. The other will be here in Newport News at Yancey’s office. The Facebook events are https://www.facebook.com/events/136118517064208/ and https://www.facebook.com/events/140913303284019/. If any DailyKos readers in Virginia are able to join us for either rally, please do! We are hoping for as many people as possible at both rallies to make a point about electoral integrity in Virginia.
In addition to seeking electoral justice for Shelly Simonds, the rallies are also seeking justice for Democratic Delegate candidate Josh Cole in Virginia house district 28, where 147 voters were disenfranchised on Election Day when they were given the wrong ballots in a House race that Cole lost by only 73 votes, and it is unknown whether this major electoral error changed the outcome of the race. Attorneys for the Virginia House Democratic Caucus have asked a federal judge to call for a special election in the 28th district. (https://www.washingtonpost.com/local/virginia-politics/with-uncanny-twists-and-an-allegedly-rogue-registrar-virginia-house-left-in-limbo/2017/11/26/9c6d41fa-cfce-11e7-9d3a-bcbe2af58c3a_story.html?utm_term=.2b9aa890c490) This is likewise a big story for those concerned with free and fair elections.
I’ve been a casual reader of the DailyKos for the last 9 years, especially around election time, always as a reader not as a poster because I felt I didn’t have anything notable to write about. But this situation, I think, is one that progressives far beyond Virginia need to hear about. Please help us get all eyes on Virginia fast to try to stop this brazen power grab. Please share articles about what is happening here and if you live in Virginia, please share the Facebook events about the rallies on social media. Please feel free to share this.