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Va. House Dems asking court to reconsider decision declaring race a tie

Democrat Shelly Simonds is calling on the Virginia Board of Elections to delay a drawing to randomly pick the winner of the tied race for a House of Delegates seat scheduled to take place on Wednesday, as she asks a circuit court to reconsider its recount on a single ballot.

Simonds plans to argue that election officials failed to properly follow state procedure in a recount, according to Tuesday reports that cite documents Simonds plans to file.

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Simonds reportedly wants Newport News Circuit Court to reconsider counting one ballot that went in favor of her opponent, GOP incumbent Del. David Yancey, a move that would effectively give her a victory in the currently tied contest.

The vote of just one contested ballot holds the power to not only determine the outcome of the 94th District election but also swing the balance of power in Virginia's House of Delegates.

Her appeal comes just before the Board of Elections is set to draw the winner of the race at 11 a.m. Wednesday.

The Circuit Court will not hear the appeal until just hours before the drawing is scheduled because it is closed Tuesday in observation of the Christmas holiday.

Yancey originally appeared to beat Simonds by 10 votes on Election Day; but after a recount, Simonds seemed to win the race by just one vote.

A three-judge panel then ruled a day after the recount that a ballot that had previously been deemed ineligible actually counted toward Yancey, producing a tie between the two candidates.

The judges who weighed in on the recount were all elected by a Republican-controlled legislature, The Washington Post reported.

In a lawsuit, Simonds’s lawyers say the panel’s decision is a “clear legal error,” running “contrary to Virginia law.” They argue that the previously tossed-out ballot can only be included in the final tally at the end of a recount — not redetermined the next day.

“This was not only contrary to the plain language of Virginia law, but was also contrary to the language that counsel for Mr. Yancey insisted be included in the Recount Consent Order,” the filing says, according to The Virginian-Pilot.

Simonds has indicated that she will press the issue if the ballot for Yancey remains in play, including an appeal to the state Supreme Court.

If Simonds wins the seat, the House chamber will be evenly split between parties, leaving Republican and Democratic delegates in an equal power-sharing situation. But, if Yancey wins, Republicans will continue to have razor-thin majority control of the chamber.

Virginia state law states that tied races are decided “by lot.”

— Updated: 3:07 p.m.