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Virginia’s rethinking that whole “drawing names out of a hat to decide an election” deal

A legal challenge brews over one disputed ballot.

by Carter Sherman
Dec 27 2017, 2:00pm

Virginia may not draw names out of a hat to decide a state election after all.

The Virginia State Board of Elections chairman announced Tuesday that it would postpone drawing lots to decide a race that could end state Republicans' 17-year grip on the House of Delegates, after the Democratic candidate said she plans to challenge a court’s ruling in a recount last week.

The November race for Virginia’s 94th district was originally called for Republican incumbent David Yancey, who’d apparently defeated Democrat Shelly Simonds by just 10 votes. That would’ve kept the House just barely under Republican control, with a 51-49 split, following a blue wave that saw Democrats win seats across the state last month.

Last Tuesday, however, a recount declared that Simonds had won by a single vote. Then, on Wednesday, a panel of three judges in the city of Newport News ruled that a ballot that had marks for both candidates was actually a vote for Yancey. (The voter filled in the bubbles next to both Simonds and Yancey’s names but also drew a line through Simonds' name, according to the Richmond Times-Gazette. The voter also voted for Republicans in the attorney general and lieutenant governor’s race.)

READ: Democrat Ralph Northam wins Virginia governor's race

That ruling left the race a dead-even tie between Simonds and Yancey. And under Virginia law, ties are to be decided “by lot.”

The law is silent on exactly how lots are supposed to be drawn, but on Wednesday, the state's Board of Elections chairman, James Alcorn, tweeted an article announcing the tie and remarked, “We should find a nice hat for the occasion.”

The lots could also be drawn out of a glass bowl, a film canister, or Alcorn’s own bowler hat, he also told the Washington Post. He also suggested to the Times-Gazette that he hadn’t totally ruled out using a colonial tricorn hat.

But it appears the country may now never know what type of lot-dispensing container Alcorn chose to use to decide the fate of the Virginian electorate.

READ: Can the resistance actually win elections? Virginia is the test

Simonds and her lawyer said Tuesday that she would file a motion to challenge the tie, since they believe the judges made a mistake in using the doubly-marked ballot — which was originally uncounted — in the recount effort. Yancey’s team had argued to the judges that the ballot only went uncounted because one election official was initially “confused” over the proper protocol.

Alcorn tweeted that the lot-drawing would be postponed while the court weighs Simonds’ argument, because the drawing had only been an act “of last resort.”

If Simonds succeeds, Virginia’s House of Delegates will be split 50-50 between Republicans and Democrats. Before the November elections, Republicans held 66 seats in the House.