As a new year dawns in Virginia, the problems and confusion of the House District 94 recount saga continue. The tale of HD-94 had already grown rather epic by the time Christmas rolled around, but this amazing journey took yet more detours last week—and it continues to careen into terra incognita.
The outcome of this election will determine (notwithstanding a federal lawsuit in House District 28, where at least 147 voters received incorrect ballots in a race the Republican won by just 73 votes) whether Republicans have a slim but real 51-49 majority in the House of Delegates when it convenes on Jan. 10, or if they’ll be forced to share power with Democrats in a chamber tied at 50 seats apiece. But with just eight days left until the Virginia General Assembly convenes, uncertainty persists.
How did we get here, anyway?
On Dec. 19, the recount for HD-94 got underway, and by the end of the day, Democrat Shelly Simonds’s 10-vote deficit had become a one-vote lead over Republican Del. David Yancey—a margin of victory seen in Virginia just once in the modern era, when Democrat Jim Scott prevailed over his opponent in 1991 by a single vote (earning him the nickname “Landslide Jim”). Crucially, none of the decisions that recount officials had made as to whether or how to tally the recounted ballots had been challenged by either campaign by the time the recount concluded, so the only thing left was for a three-judge panel to certify the decision the next day. Simonds’s victory would break the GOP’s majority in the House of Delegates, giving each party 50 members in the chamber.
But Virginia House Republicans weren’t going to let their two-decade-old majority go so easily. Yancey’s attorney contacted one of the recount observers, who claimed he’d had misgivings about one of the ballots that had been rejected as an “overvote”—bubbles next to both Simonds and Yancey had been filled in. The observer then wrote a letter to the judges who’d be finalizing the recount results. Even though challenges to recount ballot decisions are supposed to be made during the actual recount—and for many good reasons; more on these in a bit—Republicans waited until the next day to contest this ballot. Simonds and her Democratic attorneys received copies of the letter and notice of the intent to challenge that one ballot literally as they walked into the courtroom Wednesday morning.
After conferring, the judges decided to count the reject ballot as an additional vote for Yancey and certified the election results as a tie.
And here’s a fun fact about the judges overseeing this recount: These judges (and every other current judge in Virginia) were selected and approved for appointment (or reappointment) by Republicans in the legislature. One recount judge in particular—Bryant Sugg—was recommended for appointment to the Circuit Court by Yancey himself (and other lawmakers from the region) just three years ago. Some experts think Sugg should have recused himself and had another judge appointed to the recount panel, to avoid any hint of impropriety.
Originally, this questionable tie was to have been resolved during the final week of 2017, when officials at the Virginia State Board of Elections planned to convene on Dec. 27 to draw lots—in this case, pick out one of two opaque 35mm film canisters containing a slip of paper with Yancey’s or Simonds’s name from a 19th-century pitcher. (Yes, I’m serious.)
But the recount judges’ decision to count the ballot (which you can see here) was sufficiently problematic enough that Simonds’s attorneys filed a motion for the recount judges to reconsider their decision to count that day-late ballot for Yancey. Democrats also requested that the board of elections delay the drawing of lots until after the legal disputes have been settled, which the board in fact did, saying that “such a drawing should only be used as a last resort.”
The Democrats’ challenge to the recount panel’s decision made three strong arguments. First, the challenge to the ballot came after no fewer than six recount officials reviewed and rejected the ballot and after the results of the recount were finalized. Unless ballots remain in dispute at the end of the recount itself, the three-judge panel’s certification of results has historically been a formality, and indeed, at the end of the recount on Dec. 19, no ballots were in dispute. But that night, Yancey’s attorney contacted Kenneth Mallory, a Yancey-proposed recount official. Mallory wrote his letter questioning the ballot, and Democratic attorneys were ambushed by the challenge the next morning.
Second, the deviation from the typical recount process is problematic, to say the least. Recount officials must set aside disputed ballots and evaluate them together before officially recording them as “challenged.” That didn’t happen. By bypassing that process, Mallory prevented both the Republican and Democratic recount officials from weighing in; additionally the ballot itself was not set aside.
Instead, because the decision to reject this ballot was unanimous among the recount officials, the belatedly disputed ballot was put in a sealed box with all the other ballots from that same precinct. As a consequence, there’s no real way to determine if this is actually the ballot Mallory meant to challenge, or even how it was counted during the recount (for one candidate or another, or rejected). The outcome of an election—and the disposition of power in Virginia’s government—rests on the word of one feckless recount official (whose description of the process has been disputed by another recount observer).
Finally, the ballot should not have been counted for Yancey. (Again, you can take a gander here.) In the section of the ballot 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 actually runs counter to what’s indicated in the board of elections’ super-handy list of ballot examples for manual recounts. Based on this manual, the extra marking in the oval for Simons could even be construed as an “additional clarifying mark,” so if anything, the ballot could very well have counted for Simonds, and not Yancey. At a minimum, the ballot is so ambiguous that it simply shouldn't have been tallied for either side, as the recount officials themselves determined.
Republicans responded to the Democrats’ motion to reconsider two days later, when they asked the three-judge recount panel to stick by its decision. Also on Dec. 29, the elections board inexplicably changed course and announced that it would once again move forward with its plan to draw lots. Just a few days earlier, the board had insisted that any drawing should be a “last resort”; now officials are instead dictating to the courts, saying they will act “[u]nless the court system intervenes” by Thursday morning, when they plan to conduct their drawing.
Additionally, Virginia House Republicans have reportedly been trying to entice a few Democrats to vote for the Republican candidate when the chamber elects its speaker on Jan. 10. The lure has come in the form of plum committee assignments, which the speaker controls. Republicans are also issuing an embarrassing threat that if lawmakers fail to “organize” (elect a speaker, approve House rules, that sort of thing) on Jan. 10, that could somehow impact Gov.-elect Ralph Northam’s inauguration, since the event, though traditionally held on the outside portico and steps of the capitol building, is technically a joint session of the Virginia legislature.
So we may know the outcome of the election in HD-94 on Thursday, unless we don’t. This election veered out of little-explored territory and into uncharted waters when the three recount judges agreed to reconsider an already-recounted-and-rejected ballot, and it’s impossible to really know what’s going to happen next. Will the loser of the drawing contest the result? Will the judges reconsider their decision, delaying the drawing further? Will Republicans be in charge of the Virginia House when session convenes on Jan. 10?
Stay tuned!
