RICHMOND — Republicans on Friday asked a three-judge panel in Virginia to stick by its decision to count a disputed ballot in a squeaker legislative race, a ruling that threw the contest — and control of the House of Delegates — into limbo.
House Republicans were responding to a motion Democrats had filed Wednesday, asking a recount court to reverse itself and declare Democratic challenger Shelly Simonds the winner over Del. David E. Yancey (Newport News) by a margin of one vote.
A win by Simonds would split the 100-seat House down the middle, forcing a rare power-sharing arrangement on a chamber that Republicans have controlled for 17 years.
Also Friday, the state Board of Elections announced that it will move ahead with plans to pick a winner through a random drawing at 11 a.m. Thursday unless the court signals its intention to weigh in.
A previously scheduled drawing — called off Wednesday as Simonds sought to toss the race back to the recount court — had attracted national attention as an unusual way to settle a highly consequential election. Board members said then that they would prefer to have the court decide the race.
But given that the recount court has been silent, that the board must give 24 hours' notice before meeting, and that the General Assembly session is looming, the Elections Board scheduled a drawing in case it comes to that. The board could still cancel at the last minute.
"Unless we hear from the court otherwise, we'll go ahead and pull a name out of the bowl," said Clara Belle Wheeler, the lone Republican on the three-member board.
The GOP enjoyed a 66-34 majority in Richmond's lower chamber heading into the Nov. 7 elections. But Democrats picked up at least 15 seats in a wave widely viewed as a rebuke to President Trump.
On Election Day, Yancey appeared to beat Simonds by 10 votes in the 94th legislative district. Then a Dec. 19 recount left Simonds ahead by a single vote, prompting Yancey to concede.
The next day, the three-judge recount court decided that a ballot declared ineligible during the recount should count for Yancey, tying the race at 11,608 votes apiece. The voter, whose identity is unknown, filled in bubbles on the paper ballot for Simonds and Yancey but also made a slanted mark across the Simonds bubble. The court ruled the extra mark was an effort to strike out the vote for Simonds.
Republicans have noted that the voter chose others from their party on the ballot, including Ed Gillespie, who ran unsuccessfully for governor against Lt. Gov. Ralph Northam (D).
But Democrats say that the voter's intent is unclear and that the ballot must be tossed as an "overvote," meaning two competing candidates were chosen. They note that the voter also made extra marks by Gillespie's name, drawing an "X" on the bubble as well as filling it in. Perhaps, they argue, the extra mark by Simonds's name was half of an "X," abandoned as the voter reverted to filling in bubbles.
If the board goes ahead with a drawing, the loser could request a second recount.
In the GOP response filed Friday, Yancey's attorney, Trevor M. Stanley, argued that Democrats had not brought forward any new facts for the court to consider.
He also argued that the court — assembled with judges from different jurisdictions solely for the purpose of overseeing the recount — had already been dissolved.
But Democrats showed no signs of backing down — even as Republicans said their time could run out to have a say on the House speakership and rules even if Simonds ultimately prevails.
Katie Baker, spokesman for the House Democratic Caucus, issued a statement saying "desperate" Republicans were trying to "steal the election" to hang on to the majority. She pushed back against Republican claims that Democrats were dragging out the process for tactical gain.
"Their suggestion that we're engaged in some elaborate House of Cards power ploy is laughable," she said. "We're spending our time writing power-sharing arrangements in full detail and hoping to get a face-to-face meeting with Republicans to decide how to govern."
If the outcome of the Yancey-Simonds race is not determined by the time the legislature convenes on Jan. 10, Republicans would control the chamber 50 to 49. If Yancey wins, the Republicans will retain their majority by the slimmest possible margin. Democrats could force power sharing if they prevail in Simonds' race or in another disputed contest. They would have to win both to take control.
In the other disputed race, Republican Bob Thomas defeated Democrat Joshua Cole by a margin of 73 votes. Democrats are suing for a new election because a registrar's apparent mistake caused 147 voters to cast ballots in the wrong race.
In a conference call with reporters, Del. M. Kirkland Cox (R-Colonial Heights) said the House will choose a speaker for the next two years and pass rules governing its operation on opening day, even if the Yancey-Simonds race remains in limbo.
Cox, who is in line to be speaker if the GOP retains control, dropped the title "speaker designee" in the immediate aftermath of the recount but used it again Friday.
"We plan to organize the House on the opening day, with the members who are sworn in and seated," Cox said. "We have a budget to balance, we have schools to improve, we have an opioid crisis to fight."
Cox also said the House must organize to pass a joint resolution with the Senate that, among other things, sets in motion the formal procedures for swearing in Northam three days later.
Baker said it was "disappointing" that the "House Republicans are using the inaugural festivities as a smokescreen to hang on to power. However, nothing could be more transparent than Del. Cox's decision to readopt the term 'speaker-designee.' "