Democrat Shelly Simonds is challenging the Newport News Circuit Court ruling that counted a rejected ballot for her opponent, Republican incumbent David Yancey, to create a tie in their House of Delegates race. Unless Simonds prevails, the Virginia State Board of Elections will resolve the tie with a “name-drawing,” a surreal process that’s exactly what it sounds like. The drawing, which had been scheduled for Wednesday, has now been postponed in deference to Simond’s legal challenge.
Simonds makes three arguments, each one strong enough to win the case. The strongest points: The tardy ballot challenge and subsequent judicial review that created the tie were contrary to not only state law but the recount agreement itself—as well as Board of Elections guidance.
Much of the case hangs on a single ballot, not because of the ballot itself, but because of how it ended up being counted, recounted, and recounted again before being tallied for Yancey. See, according to Virginia law, “There shall be only one redetermination of the vote in each precinct.”
The first problem? It wasn’t until after recount officials certified the results—the disputed ballot was marked an “overvote” after being reviewed by six officials—that one of them, Kenneth Mallory, a Yancey-proposed recount official, decided to challenge the ballot in question. The impetus behind the belated decision to challenge the vote was, disturbingly enough, a push from Yancey’s legal counsel.
The second issue: When the circuit court re-reviewed that ballot pursuant to an invalid request, changing its designation from “overvote” to a vote for Yancey, it compounded that violation of the single-recount precept.
Recount officials are required to set aside disputed ballots, then re-review them together before officially recording them as challenged. Mallory bypassed that process, which would have ensured that both Simonds’ and Yancey’s chosen recount officials got to weigh in—and that the ballot was set aside if all agreed it should be challenged. The implications of these kinds of deviation are serious, as Simonds points out.
[A] timely challenge to a ballot ensures that it will be properly segregated, and that it will not be improperly double-counted. A ballot that is not challenged is merely placed in the sealed box with all other counted ballots and is not required to be segregated or separately marked. Thus, even if it were possible to determine with certainty which ballot in a precinct is subject to a late-filed challenge, there is no record of how a particular ballot was counted during the recount.
Finally, the ballot itself is a mess. That’s why it was counted as an overvote.
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 ballot manages to check every box for an overvote as described by the state board of elections—and stays out of the realm of exceptions granted to clear modifications to a vote, due to the confusing use of additional marks for both Gillespie and Simonds.
In sum: The post-recount challenge was invalid, the re-review was invalid, and the ballot itself was invalid. The one-recount policy is a good one when properly executed. Continuous recounting introduces ever-greater potential for error—and outside influence. Let’s hope the circuit court takes another shot at this critical question instead of leaving the fate of the state legislature to a name-drawing.
