Northwest Arkansas Democrat-Gazette
Court denies request to toss disputed Virginia ballot
RICHMOND, Va. — A recount court on Wednesday denied a request to reconsider its decision to count a disputed ballot for Republican David Yancey and declare a pivotal House race tied between Yancey and Democrat Shelly Simonds.
The decision — which Simonds cannot appeal — paves the way for the state board of elections to break the tie today by randomly selecting either Simonds or Yancey.
Virginia politicos will be watching closely for the outcome of the race, which could break the GOP’s hold on the House of Delegates.
But there might be less suspense there than meets the eye. Even if Simonds wins the drawing over Yancey — an outcome that would split the 100-member House of Delegates right down the middle — odds are the GOP will retain control of the chamber on Day 1 of the 2018 General Assembly session, when crucial votes for speaker and rules take place.
That’s because the candidate who loses the drawing is entitled to a recount, a process not likely to be completed before the legislature convenes Wednesday. And based on history, neither candidate would likely be seated if there is a pending recount, giving the GOP a 50-49 majority in the House when delegates pick a speaker for the next two years.
Once chosen, the speaker, who makes all committee appointments, may only be ousted by a two-thirds vote. So even after picking up at least 15 seats in a wave election widely seen as a rebuke to President Donald Trump, House Democrats will likely still have to deal with Kirk Cox, a Republican, as House speaker.
The House will also pass rules governing committees on Jan. 10, which are key to determining whether bills make it to the House floor. The rules, for instance, dictate whether committee membership reflects the partisan makeup of the chamber. If the GOP is in the majority on the first day, it could permit committees to be stacked with Republicans rather than reflect the chamber’s near-parity.
One bright spot for Democrats: The rules, while adopted for a two-year period, can be amended later by a simple majority vote.
House Democrats have begun to push for Simonds to be seated immediately if she wins, even if Yancey seeks a recount. But Republicans and some independent observers say there is no precedent for doing so.
“We would be shocked if the Republicans twice refused to seat the rightful winner of this election,” Katie Baker, communications director for the House Democratic Caucus, wrote in a text message. “If Delegate-elect Simonds were to win the toss, there is no reason to deny her from serving the people of her district.”
Simonds has also asked the three-judge panel that declared the race a tie to toss out a disputed ballot, cancel the drawing and award the seat to her. In a statement, she said she was “optimistic the court will do the right thing and rule in my favor before Thursday’s drawing.”
“However, I am disheartened that the Republicans would refuse to seat me even if I were to win a coin toss,” the statement continued. “How would I explain to my teenage daughters, ‘Mom won again, yet they’re still not letting her be a delegate?’”
This situation has come up before in the Virginia House.
In 2009, Alexandria, Va., lawyer Charniele Herring narrowly won a House seat in a special election but was not sworn in until a recount confirmed her victory nearly two weeks later. By then, the Democrat had missed about a quarter of the legislative session.
In 1998, Democrats re-elected Speaker Thomas Moss on the opening day of session — without input from three newly elected GOP delegates whose victories had not yet been certified by state elections officials. The new delegates gave the GOP 49 seats plus one Republican-friendly independent, cracking the Democrats’ 100-year hold on the chamber.
“Unfortunately, there’s not a good precedent for the Democrats,” said Mark Rozell, dean of the Schar School of Policy and Government of George Mason University. “You do that, you lose the right to complain.”