FAIRFAX, Va. — Republicans want Virginia’s State Board of Elections to draw names from a bowl to decide the winner of a tied race in Newport News before the General Assembly session starts Jan. 10.
In a letter sent to the State Board of Elections Friday, House GOP lawyer Trevor Stanley asks on behalf of Republican Del. David Yancey that the drawing be held as soon as possible.
The letter argued that delaying the drawing that had originally been scheduled for Wednesday “circumvents the laws of this Commonwealth and, ultimately, deprives the people of House District 94 their rightful representative in the House of Delegates.”
The drawing was delayed after legal filings by Democrat Shelly Simonds, who has asked the recount court to reconsider and declare her the winner.
On Friday morning, James Alcorn, chairman of the Virginia State Board of Elections, said in a tweet that the board will draw the winner of the race on Thursday, Jan. 4, at 11 a.m. “unless the court system intervenes.”
Simonds has complained that a ballot — challenged later than usual by a Republican recount official and that ended up being counted for Yancey, creating the tie — should not have been considered or have been found to be a vote for Yancey.
Lawyers for Yancey also filed motions Friday opposing Simonds’ request that the recount court reconsider.
Yancey’s attorneys wrote that the tie result was proper, and the State Board of Elections should be directed to decide the result be random drawing as soon as possible.
House Republican leader Kirk Cox accused Simonds and the House Democratic Caucus of deliberately delaying a final outcome in the race in the hopes of reducing the number of Republicans in the House of Delegates on the first day of the session when key votes are needed to set the rules and select the next House speaker.
“We obviously believe the court got it right the first time,” Cox said. “They know they are wrong on the law.”
Republican lawyer Mark Braden said he had no doubt that the controversial ballot was meant to be for Yancey.
While Republicans would retain a 50-49 majority if no delegate were seated from Newport News for the start of the session, Democrats still hold out hope that at a hearing next week before a federal judge in Alexandria could order a new election in the 28th District that would prevent Republican Bob Thomas from being seated. If there is no delegate in the 28th or 94th District, the House would be tied 49-49 for those key decisions, which would require a power-sharing agreement.
Cox said that Gov. Terry McAuliffe’s final State of the Commonwealth address Jan. 10 and Lt. Gov. Ralph Northam’s inauguration as governor Jan. 13 could not happen if the House has not approved its operating rules.
Republicans do believe that the loser of the random drawing to break a tie is entitled to ask for another recount. Some legal experts had said the law is somewhat unclear as to whether that right applies when the tie is created by a recount in the first place.
That second recount could have been completed before Jan. 10 had the drawing been held as scheduled Wednesday, Cox said, but now he is not sure that there is enough time.
Still, “it may be what we have to do,” he said.
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