Election chairman says drawing names is ‘last resort’ and concerns over recount should be resolved first in race between David Yancey and Shelly Simonds

This article is more than 2 years old

This article is more than 2 years old

Election officials in Virginia have postponed a plan to break a rare tied race by drawing names from a bowl. The draw had been set for Wednesday in Richmond.

How to settle Virginia's election tie? By drawing names from a bowl (or a hat) Read more

The Democrat in the tied House race, which affects which party controls the chamber, said on Tuesday she will ask a court to declare the tie invalid and her the winner.

Shelly Simonds and her lawyers said that among other errors, the court failed to follow state election law by allowing a ballot to be counted a day after a recount last week which gave her victory over incumbent Republican David Yancey by one vote. The Simonds campaign said it will ask the same court to reconsider its decision.

Explaining the postponement of the draw, James Alcorn, chairman of Virginia’s state board of elections, said in a series of tweets that drawing names “is an action of last resort”.



“Any substantive concerns regarding the election or recount should be resolved before a random drawing is conducted,” he wrote.

The race between Simonds and Yancey is for the 94th house of delegates district, in Newport News. If Simonds is declared the winner, it would split party control of Virginia’s house 50-50. A rare power-sharing agreement would have to be brokered. If no agreement could be reached, prolonged chaos could ensue.

Simonds appeared to have lost November’s election by 10 votes. Then she appeared to have won a recount by a single vote. A day later, a court declared a tie.

“At the end of the day, this is really about the integrity of elections in Virginia,” Simonds said in a conference call with reporters.

Ezra Reese, an attorney for Simonds, said on Tuesday that the court erred in following election law because it allowed an uncounted ballot to be challenged by Yancey’s campaign after the recount concluded.

Yancey’s attorneys told the court a Republican election official was “confused” about election guidelines. The official had let the vote remain uncounted before raising concerns the next day.

The court allowed Yancey’s attorneys to challenge the ballot.

On the ballot in question, the voter had picked Republican candidates in statewide races. For the 94th district, the voter filled in the bubble for Yancey and the bubble for Simonds. But he or she also drew a single slash through the bubble for Simonds.

Yancey’s attorneys argued that the ballot was clearly a vote for Yancey. Simonds’ attorneys disagreed. The court ultimately counted the vote for Yancey, which brought the tally to 11,608 votes each.

Gretchen Heal, a spokeswoman for the Yancey campaign, declined to comment on the Simonds campaign’s planned litigation. But Heal said Yancey stood by the arguments made last week by his attorneys.

Whoever wins the 94th district race, the fight over control of the House may not end there. A lawsuit is pending over the results of a hotly contested race in the 28th district in the Fredericksburg area.

Democrat Joshua Cole lost to Republican Bob Thomas by 82 votes in November and by 73 votes in a recount last week. But voters filed a lawsuit in federal court after at least 147 ballots were found to be assigned to the wrong districts.