A three-judge panel has rejected a request to reconsider its ruling on a recount in an election that could determine partisan control of the Virginia House.
The panel on Wednesday denied Democrat Shelly Simonds' request to undo its decision to count a contested ballot that tied the race during a dramatic recount of November's election.
In an 11 page decision the judges cite the sanctity of voting, writing “the right of a citizen to cast a free vote has been secured to us by the blood of patriots.
The decision goes on to say “the manifest injustice against which we must always guard is the chance that a single vote may not be counted.”
After the recount had taken place, but the before the results were certified, Simonds was ahead of Republican David Yancey by a single vote. Then a recount official expressed concern about a ballot that had been thrown out.
Simonds’ lawyers argued it was too late and that the ballot in question wasn’t clear. But in their opinion the judges disagreed on both counts. They say they hadn’t certified the results yet, so it wasn’t too late to raise a concern.
The ballot in question had bubbles filled in for both Simonds and Yancey, commonly referred to as an over vote. Over votes are thrown out.
But the judges say a mark through Simonds’ bubble counts as a scratch out, meaning the ballot was a vote for the Republican.
Their decision clears the way for Virginia election officials to randomly pick a winner in the contest. A drawing is scheduled for 11 a.m. Thursday in Richmond. The Chair of the Board of Elections will draw a name from a bowl.
If Simonds wins, the partisan split in the House of Delegates will be 50-50. If incumbent Delegate David Yancey wins, Republicans will have a 51-49 majority.
Virginia law says the loser of a random drawing can request a recount. Simonds has sent a letter to Yancey proposing they abide by the random drawing.
“I have no interest in prolonging this matter if it will deny the 94th District citizens representation at the beginning of session,” she writes.
The Newport News seat is not the only contested race. Democrats have filed a legal challenge in a close Fredericksburg-area race. A federal judge will hear a request for a re-election in that race Friday.