A group of Democratic voters is asking a federal appeals court to block Republican Bob Thomas, who narrowly beat Democrat Joshua Cole, from taking his seat in light of revelations that scores of voters received the wrong ballot. A lower court judge already declined to do so, and it's unclear if the appeals court would intervene before Wednesday.
Meanwhile, Democrat Shelly Simonds, who lost a tied race in a different district when Republican David Yancey's name was drawn from a hat last week, could request a recount that would block him from taking his seat.
But on Monday, House Democratic Leader David J. Toscano (Charlottesville) seemed to suggest he isn't putting great faith in either of those two scenarios and is instead focused on the unexpected electoral inroads his party made in November when it flipped 15 seats.
"It appears that the partisan composition in the House will stand at 49 Democrats and 51 Republicans, numbers that many of us hoped for, but few would have predicted last summer," Toscano wrote in a letter to supporters on Monday.
Simonds and Cole, who "came so close and fought for every vote until the end, are to be commended," he added.
In an interview, Toscano said he didn't intend to suggest that Cole and Simonds reached the end of their battles. But Republicans pounced on the letter as evidence that the Democrats have given up.
"We've been moving forward with plans to seat Delegate-elect Bob Thomas and Delegate David Yancey, and we're glad Leader Toscano agrees with us that they should be seated and the work of governing should begin," said Parker Slaybaugh, a spokesman for Del. M. Kirkland Cox (Colonial Heights), the Republican choice for speaker. "This is a positive step toward setting the right kind of tone for what hopefully is a productive and bipartisan session."
Not so fast, Toscano retorted.
"We are not conceding anything yet," he said in an interview. "There is still a road to go before we get a clear majority, but we are fighting for every vote."
Toscano said his letter was meant to acknowledge the current reality that Republicans hold the advantage, but said that could still change with the ongoing litigation.
He also acknowledged his focus on Wednesday is sharing, rather than seizing, power. That would include rules ensuring Democratic representation on committee is on par with Republicans and that Democrats can appoint their own members to committees.
"We are working to try to come up with rules that will reflect that power dynamic that now exists in Richmond, which is close to parity," said Toscano.
Republicans also have a narrow majority in the state Senate, holding 21 seats to Democrats' 19. Voters swept Democrats into the three statewide offices, electing Ralph Northam as governor and Justin Fairfax as lieutenant governor, while re-electing Attorney General Mark Herring.
Del. Kenneth Plum (D-Fairfax), the most senior member of the House who sought to be speaker if Democrats won a majority or forced a power sharing deal, said the chances of a Democratic speaker are essentially gone.
"I hope what will come out of this is a recognition that Virginia is equally divided," Plum said in an interview. "Any person looking at circumstances says it calls for moderation and cooperation...."
Several Republicans said one of the best ways for Toscano to engender good will ahead of crucial Wednesday votes is by acknowledging defeat in the contested races — as they thought his letter to supporters did.
"It certainly reads to the average person that they now recognize the reality that they picked up a bunch of seats but not quite enough," said Del. Gregory D. Habeeb (R-Salem). "It would be a signal that we're going to be able to orderly organize."
Added Del. Timothy Hugo (R-Fairfax), who chairs the Republican caucus: "Each one of these lawsuits and actions they've taken have been incredible longshots."
Rachel Weiner contributed to this report