Judges deny Democrats' request to undo recount decision in key Virginia House race

Democrat Shelly Simonds reacts to the news that she won the 94th District precincts by one vote after previously trailing incumbent David Yancey by ten votes post-election, following a recount Tuesday, Dec. 19, 2017, in Hampton, Va. (Joe Fudge/The Daily Press via AP)

A three-judge panel on Wednesday refused to reverse a decision that stripped the Democratic candidate of her apparent one-vote victory in the race for a House seat, meaning a winner will be chosen at random in a drawing.

The panel denied a request from Democrat Shelly Simonds to undo its decision to count a ballot in favor of Republican incumbent David Yancey in the November election — after a dramatic recount that had put Simonds up by one vote.

The move sets the stage for a Thursday morning tiebreak, with Virginia election officials picking a winner at random from a ceramic bowl.

The outcome could determine partisan control of the Virginia House of Delegates, the nation's oldest legislative body that was until recently in firm Republican control. Democrats rode a tidal wave powered by unhappiness with GOP President Donald Trump in last month's elections to erase Republicans' 66-34 advantage.

If Simonds wins, the partisan split will be 50-50. If Yancey wins, Republicans will have a 51-49 majority.

At the heart of the dispute in the race is a single ballot in which the voter filled in the bubble for both Simonds and Yancey. The voter also drew a single slash through the bubble for Simonds and picked Republican candidates in statewide races.

The ballot wasn't counted during the recount and was identified after a Republican election official raised concerns the following day.

The judges strongly defended their decision to count the ballot in their ruling Wednesday, saying "the right of a citizen to cast a free vote has been secured to us by the blood of patriots."

"The manifest injustice against which we must always guard is the chance that a single vote may not be counted," the judges wrote.

Simonds said she was disappointed with the court's ruling but was ready to draw the saga to a "positive conclusion." She sent a letter to Yancey asking him to agree that both sides would accept Thursday's random drawing as final, and not seek another recount.

Yancey did not immediately respond to Simonds' offer. If he were to lose Thursday's drawing and then ask for a recount, it could allow Republicans to start the 2018 legislative session next week at a 50-49 majority, which would let them pick a speaker and set committee assignments.

Adding another wrinkle: The Newport News seat is not the only contested House race. Democrats have filed a legal challenge in a close Fredericksburg-area where several voters were given the wrong ballots. A hearing in that case is set for Friday.

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