STAFFORD, Va. — The last of four recounts in Virginia House of Delegates races ended Thursday with the status quo confirmed: Republican Bob Thomas defeated Democrat Joshua Cole by a margin of 73 votes.
But whether Thomas ultimately retains that seat in the 28th District — and Republicans their majority in the House — remains unclear, as the race is the subject of a pending federal court challenge.
Democrats are seeking a new election because more than 100 voters were given the wrong ballot on Election Day. A hearing on the case has been scheduled for Jan. 5, five days before the General Assembly is set to reconvene.
The recount held Thursday reduced Thomas's margin of victory over Cole from 82 votes to 75 votes. A three-judge recount court resolved two additional ballots in Cole's favor and certified Thomas as the winner.
"Unfortunately, I think I have run out of votes to contest," said Jeffrey Breit, an attorney for Cole, at the hearing.
Thomas, a Stafford County supervisor who didn't attend the recount, declared victory.
"I am honored to have a seat in this historic legislature, and I look forward to putting forth legislation that offers practical solutions to everyday issues," he said in a statement.
Cole, who appeared at the recount court, said that the race wasn't over and that he wouldn't rule out another option: contesting the election with the state legislature — a murky mechanism that hasn't been used in nearly four decades.
"The main fight for us is pushing for a special election," Cole said. "This has everything to do with making sure the people of the 28th District get a fair election. . . . This entire race is tainted."
Del. M. Kirkland Cox (R-Colonial Heights), whom Republicans have tapped as House speaker if they keep their majority, said the recount should end the disputes over election results in the 28th.
"Recounts within the parameters of the law are one thing, but fruitless litigation or contests only serve to delay us from our work and weaken this historic institution," Cox said.
Thomas and Cole were competing for an open seat. The district, which spans parts of Fredericksburg and Stafford County, is represented by Speaker William J. Howell (R), who is retiring.
But even with all ballots in all four disputed House races recounted, the fallout from Election Day continues.
In the 94th District, where Del. David E. Yancey (R-Newport News) led Democratic challenger Shelly Simonds by 10 votes, a recount on Tuesday reversed fortunes and made Simonds the winner by a single vote.
But on Wednesday, the recount court erased Simonds's lead by awarding a questionable ballot to Yancey, leaving the race tied. The state Board of Elections will break the tie by picking a name from a bowl Wednesday. The law allows the loser to seek a second recount.
Including the Thomas victory in the 28th, Republicans hold a 50-to-49 majority in the House of Delegates, with one race tied.
If Simonds wins the random drawing next week, the House will be split evenly 50 to 50, forcing a rare power-sharing arrangement between Republicans and Democrats.
Stafford County Chief Circuit Court Judge Overton Harris, who oversaw the recount court in the 28th District matchup between Thomas and Cole, initially barred media from Thursday's proceedings.
But after an appeal by an attorney for The Washington Post, the chief judge granted a petition for public access to the recount.
It was a largely cordial affair as high-speed voting machines processing ballots hummed, and teams of elections officials gathered around tables to hand-count the ballots that couldn't be read while partisan observers looked on.
Tense moments came as election officials struggled to make decisions on questionable ballots.
In one instance, a Republican attorney shouted at a Democratic observer to stop talking when she began weighing in on a ballot where the voter filled out circles for both Cole and Thomas but put an X through the Thomas vote. In another instance, Democratic attorneys urged an elections official to reconsider setting aside a ballot where a voter both filled out Cole's circle and wrote in his name.
Both ballots were eventually reviewed by the recount court and counted for Cole.
Breit, Cole's attorney, told judges that the proceedings were as "smooth as silk." Trevor Stanley, an attorney for Thomas, said local elections' officials did a "fantastic job."
Open-government advocates say barring reporters from the recount proceedings would have undermined public confidence in the elections.
"There is an intense interest in knowing about the results and knowing that the process is conducted fairly and accurately so (the public) can have confidence in the final outcome," said Megan Rhyne, executive director of the Virginia Coalition for Open Government. "The press is usually allowed in legal proceedings in some way. . . . The question is not 'Why should they be allowed?' The question is 'Why shouldn't they be allowed in?' "
Reporters observing the recount in the 94th District race between Yancey and Simonds were able to watch the discussion about a disputed ballot that later ended up being instrumental to the judges' decision that the race was tied.
Journalists covering the House District 40 recount, in which Del. Timothy D. Hugo (R-Fairfax) held onto his seat, captured the civility of a democratic process in a time of partisan tension.
Clara Belle Wheeler, a Republican member of the state Board of Elections, said media should be present. "It's sort of like being in the auxiliary box in the World Series. You can still see the batter, but you can't be calling balls and strikes," Wheeler said. "I see absolutely no reason why you would not have press behind the rope."