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VA House of Delegates Race now a Tie

The race that Doug Mataconis blogged about earlier today (A Political Earthquake In Virginia Thanks To A Single Vote) is now a tie (via WaPo):  Virginia court tosses out one-vote victory that briefly ended GOP majority in House.

A three- judge panel declined to certify the recount of a key House race today, saying that a questionable ballot should be counted in favor of the Republican and tying a race that Democrats had thought they had won by a single vote.

“The court declares there is no winner in this election,” said Newport News Circuit Court Judge Bryant L. Sugg, after the judges deliberated for more than two hours.

He said the ballot in question contained a mark for Democrat Shelly Simonds as well as a mark for Republican Del. David Yancey but that the voter had made another mark to strike out Simonds’ name.

Here’s the ballot in question:VA balllot

In my opinion, the voter intent is unclear insofar as it is really impossible to know who the voter was voting for in the House of Delegates box for sure.  One might infer a Republican preference, but there is no way to know for sure, and hence in my opinion the court should not be making inferences, although I will allow I do not know the legal standard in Virginia.  Normally clear voter intent is the standard.   Since the voter also made an extra mark on the vote for governor one could as reasonably assume that the vote for Simonds was the preference for House (but there is no way to know for sure, which is why I presume it was not counted originally).

I assume an additional level of appeal remains.  It is unclear as to the procedure if there is an actual tie.  Probably a coin flip or the equivalent.

Still, as has been widely noted today:  this is an object lesson in every vote counting.  (And, no doubt, one for the American government textbooks).

Update:  In case of a tie, VA law states:

If two or more persons have an equal number of votes for any county, city, town, or district office, and a higher number than any other person, the electoral board shall proceed publicly to determine by lot which of the candidates shall be declared elected.

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About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. Sleeping Dog says:

    As a young political junkie and Cow Hampshire resident at the time I was captivated by the 1974 John Durkin/Lou Wyman senate race that ended in a tie. This VA race reminds me of that. In NH, when voter intent could not be determined on four ballots, those were tossed and the Senate ordered a second election that Durkin won comfortably.

    Like or Dislike: Thumb up 1 Thumb down 0

  2. There seems to me to be a clear question of voter intent here.

    I think we can count on litigation to quickly follow here.

    Like or Dislike: Thumb up 6 Thumb down 0

  3. Mister Bluster says:

    I am always able to see sample marked ballots showing correct and incorrect markings at the polling place where I vote on Election Day.
    I’m pretty sure no vote for any candidate would be counted off this ballot in Makanda Township IL Precinct 4 since it says “vote for only one” and more than one candidate has marks of any kind in the “bubbles” by their names.

    Like or Dislike: Thumb up 4 Thumb down 0

  4. Mister Bluster says:

    I hope the fact that this election ballot is a matter of Public Record is appreciated by citizens.

    Like or Dislike: Thumb up 6 Thumb down 0

  5. MarkedMan says:

    Just remember that one George W Bush became president because of the infamous hanging chad. They were throwing out votes that were clearly punched for Gore, but had a tiny circle of paper still attached. There is no question that filling in bubble for both candidates, as happened in this case, would have had the ballot thrown out. Dems better not roll over on this.

    Like or Dislike: Thumb up 3 Thumb down 0

  6. Gustopher says:

    @Doug Mataconis: Is the standard clear voter intent, or probable voter intent?

    I don’t think that anyone would honestly be able to tell which candidate the voter in this case intended to vote for. I’m not even sure if they meant to vote for Gillespie for governor and then x-ed it out to vote for no one, or whether those marks are emphasis, or just messing up and filling it in improperly.

    I wouldn’t count this ballot for Governor or House of Delegates if the standard was clear voter intent. If the standard was probable voter intent, I might look at fact that it seems to be a party line Republican ballot.

    Let this be a lesson to us all: when you spoil your ballot, please be clear. Writing “this one” and putting an arrow in would make the intent a lot clearer.

    Like or Dislike: Thumb up 3 Thumb down 0

  7. PJ says:

    Can a ballot be used in political ads?

    Like or Dislike: Thumb up 0 Thumb down 0

  8. HarvardLaw92 says:

    This is what is known as a spoiled ballot.

    Like or Dislike: Thumb up 10 Thumb down 0

  9. MarkedMan says:

    The idea that this judge is looking at the voter’s past behavior rather than at the clearly spoilt ballot tells me they are a partisan Republican hack.

    Like or Dislike: Thumb up 3 Thumb down 0

  10. Gustopher says:

    @MarkedMan: where are you seeing that the judge is looking at the voter’s past behavior? How would they identify the voter or his or her past behavior?

    Like or Dislike: Thumb up 1 Thumb down 0

  11. JohnMcC says:

    @MarkedMan: OK, I didn’t read the WaPo story linked to by Dr Taylor. But what’s this about the ‘voter’s past behavior’? The ‘secret ballot’ isn’t actually in the Constitution but surely it’s so completely & universally observed that the particular voter and his/her past voting behavior is invisible.

    Or has the recent election of Mr Trump changed that too?

    Like or Dislike: Thumb up 0 Thumb down 0

  12. Electroman says:

    @Mister Bluster: Wow, you live in Makanda? I spent many great hours in Giant City State Park there. Off-topic, I know.

    Like or Dislike: Thumb up 0 Thumb down 0

  13. Guarneri says:

    Sounds complicated. I suggest a duel at high noon.

    Like or Dislike: Thumb up 1 Thumb down 3

  14. HarvardLaw92 says:

    @Guarneri:

    Which one of us gets to shoot you? 😀

    Like or Dislike: Thumb up 7 Thumb down 0

  15. MarkedMan says:

    @JohnMcC: I phrased that badly. The judge didn’t consider past elections, he considered how the citizen voted elsewhere on the ballot. From TPM

    Yancey successfully challenged an uncounted ballot that he said should have been included in his total.

    His attorneys said the campaign believes one ballot meant for him was not counted. They cited concerns raised by a GOP election official who participated in the recount.

    The official, Kenneth Mallory, wrote that the ballot had both candidates’ names bubbled in for the 94th District race. He says the voter had chosen Republican candidates in every other race.

    Like or Dislike: Thumb up 0 Thumb down 0

  16. Mister Bluster says:

    @Electroman:..Giant City State Park
    I live in Makanda Township. Not the Village of Makanda where The Boardwalk is and the Annual Vulture Festival is celebrated.

    Like or Dislike: Thumb up 1 Thumb down 0

  17. KM says:

    Why was it originally counted for her if it was so “clearly” for Yancey then? A room full of recounters and lawyers called it for Simonds with this ballot. Strange how it’s the judges that are feeling iffy when it’s a close Dem when but everybody else seemed to think it was clearly Simonds’ ballot – and I promise you there were motivated Republicans in that room.

    Like or Dislike: Thumb up 0 Thumb down 0

  18. Guarneri says:

    @HarvardLaw92:

    I have no fear. They are like you guys, the gang that couldn’t shoot straight.

    Like or Dislike: Thumb up 0 Thumb down 6

  19. ptfe says:

    @KM: They discarded the selection originally. That’s why it’s only a 1-vote change and not a 2-vote change.

    Like or Dislike: Thumb up 0 Thumb down 1

  20. rachel says:

    @MarkedMan:

    He says the voter had chosen Republican candidates in every other race.

    Which means nothing. It’s not like voting a split ticket is unheard of, even in this current polarized environment.

    Like or Dislike: Thumb up 0 Thumb down 0

  21. HarvardLaw92 says:

    @Guarneri:

    Lol, I have a cabinet full of Purdeys, Holland & Hollands, and skeet trophies which argue otherwise. At least you wouldn’t suffer (much …)

    Don’t confuse being a liberal with not having a d*ck, m’kay? :-)

    Like or Dislike: Thumb up 6 Thumb down 0

  22. Just 'nutha ig'nint cracker says:

    @HarvardLaw92: Visited their websites. Beautiful guns and rifles. Conspicuous consumption at its finest, I must say. Wa!

    Like or Dislike: Thumb up 0 Thumb down 0

  23. iSeeDumbPeople says:

    So, this ballot was originally disregarded, but someone thought to ‘save’ it just in case? How did that happen? Did they start searching the tossed ballots for near misses? Can the Dems go fishing, too?

    Like or Dislike: Thumb up 1 Thumb down 0

  24. Ol' Nat says:

    At least by lot is Biblical! (-:

    Like or Dislike: Thumb up 1 Thumb down 0

  25. Tyrell says:

    Now they are planning to draw names out of “film cans”. I have some better ideas: the Chinese Christmas gift exchange deal (no offense to anyone), or a round robin double elimination tournament of corn holes.

    Like or Dislike: Thumb up 0 Thumb down 2

  26. MarkedMan says:

    @iSeeDumbPeople:

    So, this ballot was originally disregarded, but someone thought to ‘save’ it just in case? How did that happen? Did they start searching the tossed ballots for near misses? Can the Dems go fishing, too?

    1. “Disregarded.” Not “Discarded”.
    2. It is normal to save everything to do with an election until the results are finalized
    3. Yes
    4. Yes. No doubt they did.

    All of the above is exactly how a recount works.

    Like or Dislike: Thumb up 1 Thumb down 0

  27. gVOR08 says:

    IANAL and know nothing about VA law, but in a general way should the judges not be ruling on whether the election officials followed the law and established procedure and not reviewing individual ballots? I also know nothing about the legal resources and money available, but somehow I suspect that, as in Bush v Gore, the GOPs have more firepower availabe. And more willingness to apply that firepower regardless of ethical or factual constraints.

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