WASHINGTON — A recount court has denied Democrat Shelly Simonds’ request to reconsider its finding that Virginia’s 94th District House race ended in a tie at 11,608 votes.
The ruling, issued Wednesday, means the random drawing scheduled to decide the outcome of the recount between Simonds and Republican Del. David Yancey is set to move forward as planned Thursday morning barring any snow-related delays. (The Department of Elections said no schedule changes had been made yet.)
Simonds had asked the court to review its decision to accept a later-than-usual challenge to a key ballot from a GOP recount official and count the ballot for Yancey to create a tie. The court found that its initial decision, a day after Simonds thought she had won election by a single vote, was correct.
“The right of a citizen to cast a free vote has been secured to us by the blood of patriots shed from Lexington and Concord to Selma, Alabama,” the three-judge panel wrote in an 11-page opinion Wednesday. “The manifest injustice against which we must always guard is the chance that a single vote may not be counted. It matters not the importance of the disposition of a ballot in a given election; it matters the dignity of the citizen, the integrity of the electoral process, and the destiny of our constitutional republic.”
The decision to count the ballot for Yancey was based on a small line through the bubble filled in for Simonds. Yancey’s bubble was also filled in.
“The issue was whether the line through the mark was a scratch out. Webster’s Third International Dictionary defines “scratch” as follows: “to cancel by drawing a line through,” the judges wrote.
“The Court does not find that its ruling counting the challenged ballot as a vote for the Respondent to be clear error or to cause manifest injustice,” the opinion said.
If Yancey ends up winning the seat, Republicans expect to have a 51-49 majority. If Simonds winds, the House would be split 50-50.
In either case though, it is not clear that the winner of the drawing will be seated when the House convenes Jan. 10 since Republicans have argued the loser of the drawing is entitled to a second recount.
In a statement after the ruling, Simonds asked Yancey to agree that the loser of the drawing would not request another recount. Later in the day, Yancey rejected that request.
If a second recount is underway when the session begins next week, neither candidate is expected to be seated for the key votes on the speaker of the house and rules of the body for the next two years.
Democrats hope a federal judge in a separate case might keep Republican Bob Thomas from being seated in the 28th District due to dozens of people who voted in the wrong races in the Fredericksburg area. A hearing in that lawsuit is scheduled Friday.
If the judge were to keep Thomas from being seated, the rules would be set through negotiations between Republicans and Democrats under a 49-49 tie.