But Yancey would have the last laugh. The Republican challenged in court a ballot that had previously been invalidated, arguing that the ballot should have been counted in his favor. A three-judge panel agreed, and the ballot was reinstated, bringing the final count to an exact tie of 11,608 votes for each candidate.
Election authorities held a tie-breaker on Jan. 4. That entailed inserting each candidates’ name in an opaque film canister and drawing one randomly from a bowl. Yancey won the drawing and the election. Simonds has since refused to concede and has indicated she may seek another recount or pursue “other legal options.”
After tasting sweet victory, it’s understandable why Simonds finds conceding so unpalatable, especially when simple chance played such a decisive and harsh role.
But a politician’s frustrated ambitions matter little to voters. They care more about election integrity, and, frankly, there is no evidence Simonds or her supporters were treated unfairly.
Consider the court’s decision to reinstate the previously invalidated ballot and ultimately tie the race. Democrats have cried foul, accusing the judges, all of whom were elected by a Republican legislature, of partisan bias. Simonds accused Republicans of violating recount rules, saying in a tweet it was “unfair that we couldn’t contest ballots but [Republicans] were allowed to.” Simonds also points out that since recount officials had signed the statement of results following the recount, the court was prohibited from considering the challenged ballot.
Simonds is wrong for three reasons.
First, Simonds’s sincerity in her accusations is doubtful. Only the day before the drawing, Simonds offered to Yancey that whatever the disposition of the drawing, both parties would treat the results as final. Yancey declined, but the offer is nonetheless telling: If Simonds truly believed she was legally and morally in the right, and in fact received more votes than Yancey, why would she be so eager to throw it all away — including a second recount — on the statistical equivalent of a one-time coin toss? What’s more, while she supposedly laments the possibility that come Wednesday, the 94th District may not have representation, she continuously shirks her duty to end the fiasco and concede a race she has now officially lost twice. That’s a sign of a stubborn politician, not a concerned public servant.
Second, her argument that Democrats did not have a chance to contest ballots is patently false. Virginia recount law permits each party to select its own recount officials, each of whom alone has sufficient power to challenge a ballot and submit it to the certifying court for review. Thus, regardless of party, each selected recount official has ample opportunity examine each ballot and, if necessary, mount a challenge.
Finally, to say the challenged ballot should be discarded because an inexperienced and confused recount official did not fill out the correct paperwork (specifically, Form SBE-802CB) is literally putting form over substance. In deciding to unseal the contested ballot for examination, the court was giving teeth to the principle that every vote matters. It’s a fantastic irony that Simonds has become an icon of voter participation when her fate rests entirely on her ability to suppress a vote clearly marked in favor of her opponent.
Speaking of, here is the challenged ballot. Dispense with any partisan loyalties and legal technicalities (not that Simonds would win via legal technicality; although the law[ holds “overvotes” (ballots marked for more than one candidate for the same office) as invalid, the law also deems valid those same ballots if they have additional clarifying marks, as is the case here) and be reasonable. The voter who cast this ballot clearly prefers Republicans. In every office where a partisan candidate is listed, the Republican candidate is marked. The single strike-through mark over Simonds’s name — the universal signal that a mistake was made — is found nowhere else on the ballot; only on the one office where it logically makes sense to insert a correction. This ballot was obviously a vote for Yancey.
Simonds needs to face reality. The election is over, and she lost. Nobody likes a sore loser, so for the good of her fellow Virginians, she should concede.