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.
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