The rather epic and unpredictable journey of the election in Virginia House District 94 has taken yet another turn. On Wednesday, a three-judge recount panel denied Democrat Shelly Simonds’ request to reconsider their decision that moved the race from a one-vote win for Simonds to a tie. This ruling clears the way for the race to be determined, in accordance with Virginia law, by the drawing of lots at 11 AM ET on Thursday.
The ruling is brief (you can read it for yourself here) and poorly addresses the concerns raised by Simonds’ attorneys.
The Democrats’ challenge to the recount panel’s decision made three strong arguments, which we’ve written about in more detail previously. The judges dismissed them all, though, ignoring the very real precedent they set by deviating from accepted recount rules and procedures by hiding behind the supposed “plain meaning” of the statutes at issue. In particular, the judges ruled that the challenge to the disputed ballot at the center of the case was not brought too late, even though it was made after the recount had concluded, and despite the fact that the ballot in question was not properly segregated from the rest.
The judges also attempted to justify their erroneous classification of the originally rejected ballot as a vote for Republican Del. David Yancey. The voter who cast this ballot in 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 State Board of Elections’ super-helpful 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 unanimously determined during the recount itself.
The recount judges weirdly rely on a dictionary’s definition of the word “scratch” (“to cancel by drawing a line through”) to declare that the line through the Simonds’ bubble was intended to indicate that the voter wanted to cast his ballot for Yancey. This assertion runs counter to the election board’s own guidelines:
(8) Any ballot that has any mark, as above, in the target area or candidate area for one candidate, and on which other marks in the target areas or candidate areas for any other candidates have been partially erased, scratched out, or otherwise obliterated, shall be counted as a vote for the candidate for which the mark was not erased, scratched out, or otherwise obliterated, provided no other candidate is similarly marked.
Here are examples the board of elections supplies:
Now let’s look at the supposed Yancey ballot:
No reasonable person would conclude that a small line through a bubble constitutes it being “scratched out.” The recount judges stretched to justify their erroneous decision to not discard the ballot as an overvote.
Simonds responded to the recount judges’ ruling by sending a letter to Yancey calling on him to “respect the result of the lot drawing” on Thursday. Yancey declined, and Simonds has pledged to “continue to fight” and says that “all options are still on the table.” The loser of Thursday’s drawing may opt to ask for yet another recount, which may or may not be permitted by state law. While one statute says that recount proceedings "shall be final and not subject to appeal," a separate statute says that whoever loses the drawing of lots may seek another recount.
So we may know the outcome of the election in the 94th District 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.
