Control of the Virginia House of Delegates hangs in the balance after one of four scheduled election recounts ended in a tie Wednesday that must now move to the state board of elections, which will choose a winner by drawing a name at random.
Republicans are holding onto their majority in the lower chamber by a hair — they hold 50 seats to 49 seats held by Democrats. Two of the four races under the microscope could tip the balance — particularly the contest in the 94th House District, where Republican Del. David E. Yancey seemingly beat Democratic challenger Shelly Simonds on Election Day by just 10 votes. The recount that took place on Tuesday reversed that outcome, giving Simonds a one-vote edge over Yancey. But a three-judge panel erased that advantage on Wednesday after it counted a questionable ballot that had been set aside during the recount and gave the vote to Yancey. That left the race tied, with 11,608 votes each for Simonds and Yancey, sending it to the board of elections for what is, in essence, a coin toss.
The last of the four recounts is scheduled Thursday.
Election officials and representatives of the candidates who have participated in the recounts so far have been immersed in arcane election law as they try to decipher the intent of voters who didn’t properly fill out ballots. For example, if someone wrote “MY MAN” over the favored candidate’s name instead of filling in the adjacent circle, that ballot is valid, according to the state board of elections. But if a voter tried to rank candidates numerically, that ballot is considered improper.
Recounts rarely change results. But this year also saw more close House races than any other election in recent memory. And with the chamber currently split 51 to 49, with Republicans leading, a single Democratic pickup would force a power-sharing agreement while two more seats would allow the Democrats to take control for the first time since 1998.
Here’s a guide to how recounts work in Virginia, and what to watch for:
Which races are headed to recount?
Dec. 13 and 14: House District 40 where Del. Timothy D. Hugo (R-Fairfax) leads Democrat Donte Tanner by 106 votes.
Update: Hugo prevailed, with his lead shrinking to 99 votes.
Dec. 19: House District 94 where Del. David E. Yancey (R) leads Democrat Shelly Simonds by 10 votes.
Update: Court declined to certify with a tie outcome producing to winner
Dec. 20: House District 68 where Democrat Dawn Adams leads Del. G. Manoli Loupassi by 336 votes.
Dec. 21: House District 28 where Republican Bob Thomas leads Democrat Joshua Cole by 82 votes.
What actually happens during a recount?
Virginia voters fill out paper ballots, which are fed into electronic scanners and tallied by those machines. The ballots, which are secured in the office of the local elections clerk, are transported by sheriff’s deputies to the local courthouse (or another government building) for the recount.
There, the ballots are scanned once again by machines that have been tested in advance. Ballots that could not be read are hand-counted by two local election officials, who can be monitored by one observer from each party. Any members of the public and media can be present in the room, but they must be away from the tables where the actual recounts are conducted. (Update: The District 28 recount is closed to the press and general public.)
While improper tallies and ballots lost in machine jams could also be uncovered, veterans of recounts say ballots that were improperly completed tend to be the biggest source of missed votes.
“I would expect vote totals to change, not dramatically, but they will definitely change on both sides,” said Brian Schoeneman, a Republican and former secretary of the Fairfax County’s electoral board during two recounts. “The district with the 10 votes is the one everyone should be paying attention to because it has the most chance of flipping.”
How do you figure out a voter’s intent?
Even if Virginians filled out their ballots incorrectly, their votes can be tallied if their choice of candidate is clear. Virginia elections officials lay out dozens of possible scenarios involving creative votes and whether they should be counted in a 15-page manual.
In general, if a voter shows they prefer one candidate over the others, their vote is counted. Exceptions include if voters ranked multiple candidates, or if they wrote in a candidate who was already on the ballot.
Here are some examples from the manual (all involving hypothetical candidates):
What if observers disagree on a voter’s intent?
They almost assuredly will.
Disputes over whether a ballot should be counted first go to top elections officials in the room during the recount. Further appeals are handled by the three-judge recount court that has the final say and resolves disputes shortly after the tallying is complete.
What about other issues involving ballots?
The recount is limited to the ballots that were counted. That means disputes over absentee ballots that arrived late or voters who were turned away at the polls will not be part of the recount. And while elections officials discovered hundreds of Fredericksburg-area voters were given the wrong ballots in two districts including the 28th, the issue of misassigned voters is part of a pending federal lawsuit and will not be part of the recount.
What happens after the end of the recount?
The battle for the House of Delegates likely won’t be over even after the recounts.
A federal judge has set a Jan. 5 hearing for the case where Democrats are seeking a new election in District 28 over the issue of more than 100 voters who were given ballots to vote in the wrong district. Losing candidates also have an opportunity to contest the election results with the state legislature, a rarely-used and murky process.
Republicans and Democrats alike aren’t sure how things would unfold with contested elections reaching the General Assembly. Lawmakers last recall such an instance in 1979 when a losing Republican Senate candidate got nowhere with a Democratic-controlled state Senate.
Have recounts swung House races before?
A generation ago. But an analysis by the nonpartisan Virginia Public Access Project shows the six most recent House recounts resulted in few votes changed and no outcomes flipped. The most recent recount, House District 86 in 2013, had the biggest swing with the Republican victor’s margin shrinking by 22 votes, as the use of paper ballots (and the likelihood for missed votes) expanded.
Two apparent House losers became winners in recounts in 1991. Democrat Jim Scott picked up votes during a recount, turning a 17-vote loss into a one-vote win and earning the nickname “Landslide Jim.” Also that year Republican Peter Wray turned a one-vote loss into a seven-vote win after officials discovered a nine on voting machine printout was misread as a zero, according to VPAP.
What’s different about this year?
Virginia fully shed its touch-screen voting machines in recent years in favor of paper ballots. While that leaves a more reliable record to double-check results, it also increases the likelihood of improperly completed ballots.