A three-judge panel in Virginia decided Wednesday to count a ballot cast for a Republican in a race for the state’s House of Delegates that was decided by just one vote, meaning the contest is now a tie.
A recount completed Tuesday determined Democrat Shelly Simonds had defeated Republican incumbent David Yancey by just one vote. The race is being closely watched because control of the Virginia House of Delegates hinges on its outcome.
Judges on the Newport News Circuit Court determined Wednesday that a ballot on which the voter had marked the bubbles for both Yancey and Simonds, and then tried to clarify which one, should have been counted for Yancey rather than discarded during the recount.
The ballot in question apparently had marks for Yancey and Simonds, with a strike through Simonds’ name. The voter had also put a strike through their vote for Ed Gillespie, the Republican candidate for governor.
According to a provision in a Virginia law, a general assembly race that results in a tie is decided by the state Board of Elections determining a winner “by lot” ― meaning the winner is selected through a process like picking names out of a hat, drawing straws or flipping a coin. This means that control of the House of Delegates could hinge on a process that leaves the outcome up to chance.
If Simonds wins, the House of Delegates will be split 50-50 between Republicans and Democrats. If Yancey wins, Republicans will have a 51-49 majority in the chamber.
Speaking to reporters after the decision, Yancey declined to comment on the possibility of a coin toss, saying he was focused on Wednesday’s results and serving the people of his district. He said his understanding was that the Virginia Board of Elections would determine what happened next.
Republicans have controlled the Virginia House of Delegates for 17 years.
Marc Elias, an attorney for the Virginia Democratic Party, said in a statement that the court’s ruling was incorrect.
“Today’s decision by the court was wrong, and Delegate-elect Shelly Simonds should have been certified the winner. We are currently assessing all legal options before us as we fight for a just result,” Elias said. “The Republicans themselves had affirmed that this result was accurate yesterday before changing their minds today. After conceding this seat and their majority, they are now desperately trying to claw both back ‘like a snarling dog that won’t let go of a bone.’”
This article has been updated with additional details about the decision and comment from Elias.