Control of Virginia House of Delegates Still Hangs in the Balance

After Virginia's state and local elections on November 7, there were four extremely close House of Delegates' races.  Here is what happened and the status of each of them:

• 28th District: Republican Bob Thomas led Democrat Joshua Cole by 82 votes after the election.  After a recount, Thomas' margin of victory narrowed to 73 votes.  However, Democratic voters in the district, through leading Democratic attorney Marc Elias, have filed suit regarding 147 ballots cast in the wrong district, asking for a new election.  A hearing is scheduled in this case on Friday, January 5.
• 40th District: On election night, Democrat Donte Tanner led incumbent Republican Tim Hugo by 68 votes.  During the canvass the next morning, 183 votes for Hugo were discovered that were not counted due to human error, giving Hugo a 115 vote lead.  After all votes were counted and a brief recount, Hugo won the seat by a 99-vote margin.
• 68th District: After the election, Democrat Dawn Adams led incumbent Republican G. Manoli Loupassi by 336 votes.  After a recount, the margin of Adams' victory increased to 347.
• 94th District: After Election Day, incumbent Republican David Yancey led Democrat Shelly Simonds by 12 votes, which was certified as a 10-vote lead.  
• After a recount, Simonds led by one vote, but Yancey challenged a ballot that was excluded, arguing that it should be counted.  The three-judge recount panel determined on December 20 that the ballot should be counted, resulting in a tied vote.  
• Virginia law provides for decision by lot in the event of a tie, and the Virginia State Board of Elections planned to conduct the drawing (by placing the names in two identical old film canisters and selecting one from a bowl) on December 27.  The drawing was delayed after Simonds filed a petition to reverse  the decision to count the disputed ballot.  
• On January 2, the Virginia SBE re-scheduled the drawing for tomorrow (Thursday, January 4) at 11:00 AM.
• This afternoon, the court denied Simonds' petition to have the ballot not counted, so the race remains tied.  
• After the ruling, Simonds pledged not to challenge the result of the random drawing, asking Yancey to pledge the same, which he refused.  After the refusal, Simonds also said she would keep her legal options open.

One House seat has not yet been decided (but could be tomorrow), and two are currently under litigation.  Delegates are scheduled to be sworn in for the new session on January 10.  Currently, the balance in the Virginia House is 50 Republicans to 49 Democrats, with the 94th District outstanding.  If the House is tied, the parties would have to broker a power-sharing agreement.  If the 94th is still unresolved on January 10, a Republican speaker and leadership would be elected based on the Republican majority, even if Simonds eventually wins, leading to a tied House.

What can we learn from this?  

• First, it is actually true that every vote counts.  
• Second, election integrity and smooth election administration matter.  Take the canvass in the 40th District.  Often canvasses are seemingly formulaic processes to verify the votes, but in the Hugo-Tanner race, the canvass uncovered two significant errors that completely changed the winner of the election.  These errors would not have been caught without a thorough process of double-checking the results and sharp-eyed election workers taking their jobs seriously.  
• Third, well-trainied election officials and proper election administration are key, especially in close elections.  
• Fourth, while extremely close elections and lengthy post-election procedures and litigation may seem rare, it is vital that parties and candidates be well-prepared for such events in advance of Election Day.  
• Fifth, attorneys have very important roles to play at every point of this process.  Attorneys resolved problems on Election Day, represented candidates and parties, observed the canvasses and recounts, and are litigating fast-moving cases raising novel issues of law.

We will continue to follow and report on the outcome of these races in Virginia.