RICHMOND — Virginia politicos will be watching closely Thursday, when a tied legislative race that could break the GOP’s hold on the House of Delegates is scheduled to be decided in a random drawing
But there might be less suspense there than meets the eye.
Even if Democrat Shelly Simonds wins the drawing over Republican David Yancey — an outcome that would split the 100-member House of Delegates right down the middle — odds are the GOP will retain control of the chamber on Day 1 of the 2018 General Assembly session, when crucial votes for speaker and rules take place.
That’s because the candidate who loses the drawing is entitled to a recount, a process not likely to be completed before the legislature convenes on Jan. 10. And based on history, neither candidate would likely be seated if there is a pending recount, giving the GOP a 50-49 majority in the House when delegates pick a speaker for the next two years.
Once chosen, the speaker, who makes all committee appointments, may only be ousted by a two-thirds vote. So even after picking up at least 15 seats in a wave election widely seen as a rebuke to President Trump, House Democrats will likely still have to deal with Republican Del. Kirk Cox (Colonial Heights) as House speaker.
The House will also pass rules governing committees on Jan. 10, which are key to determining whether bills make it to the House floor. The rules, for instance, dictate whether committee membership reflects the partisan makeup of the chamber. If the GOP is in the majority on the first day, it could permit committees to be stacked with Republicans rather reflect the chamber’s near-parity.
One bright spot for Democrats: The rules, while adopted for a two-year period, can be amended later by a simple majority vote.
House Democrats have begun to push for Simonds to be seated immediately if she wins, even if Yancey seeks a recount. But Republicans and some independent observers say there is no precedent for doing so.
“We would be shocked if the Republicans twice refused to seat the rightful winner of this election,” texted Katie Baker, communications director for the House Democratic Caucus. “If Delegate-elect Simonds were to win the toss, there is no reason to deny her from serving the people of her district.”
Simonds has also asked the three-judge panel that declared the race a tieto toss out a disputed ballot, cancel the drawing and award the seat to her. In a written statement, she said she was “optimistic the court will do the right thing and rule in my favor before Thursday’s drawing.”
“However, I am disheartened that the Republicans would refuse to seat me even if I were to win a coin toss,” the statement continued. “How would I explain to my teenage daughters, ‘Mom won again, yet they’re still not letting her be a delegate?’”
This situation has come up before in the Virginia House.
In 2009, Alexandria lawyer Charniele Herring narrowly won a House seat in a special election but was not sworn in until a recount confirmed her victory nearly two weeks later. By then, the Democrat had missed about a quarter of the legislative session.
In 1998, Democrats reelected Speaker Thomas W. Moss Jr. on the opening day of session — without input from three newly elected GOP delegates whose victories had not yet been certified by state elections officials. The new delegates gave the GOP 49 seats plus one Republican-friendly independent, cracking the Democrats’ 100-year hold on the chamber.
“Unfortunately there’s not a good precedent for the Democrats,” said Mark J. Rozell, dean of the Schar School of Policy and Government of George Mason University. “You do that, you lose the right to complain.”
Rozell said there is a simple reason legislators cannot be seated before their victories are confirmed: “You don’t want the loser to be voting on legislation.” But he also said the situation poses political risk for Republicans if Democrats can convince the public that the GOP is engaging in a power grab.
Voters “will only know the Democrats won a huge wave election and the Republicans are desperately trying to save their slim majority” he said. “Whether fair or not — I would say not — that would be the overriding sentiment of most voters.”
Lawyers for Simonds convinced the state Board of Elections to call off a drawing scheduled for Dec. 27 as they asked the recount court to reconsider its decision. The court has not signaled its intentions. The board announced last week that it would proceed with the drawing Thursday if the court does not intervene by then.
“Bizarre strategy by Ds almost guarantees GOP control,” Del. Greg Habeeb (R-Salem) posted on Twitter.
Bob Holsworth, a longtime observer of Virginia politics, said “time was of the essence for the Democrats.”
“Why they went through this exercise of asking the same judges who had accepted the ballot to change their minds three days later is almost incomprehensible,” he said. “They put themselves into a position where they’re appealing to the compassion of the Republicans.”
On Election Day, Yancey appeared to beat Simonds by 10 votes in the 94th legislative district. A Dec. 19 recount left Simonds ahead by a single vote, prompting Yancey to concede.
The next day, the 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 agreed. 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.
In another disputed race, Republican Bob Thomas defeated Democrat Joshua Cole by a margin of 73 votes for the seat being vacated by retiring Speaker William J. Howell (R-Stafford). Democrats have asked a federal judge to order a new election because a registrar’s apparent mistake caused 147 voters to cast ballots in the wrong race.
Thomas, whose win has been certified by the state elections board, is expected to be seated on Jan. 10 — barring action in the federal lawsuit. A hearing in that case is scheduled for Friday in Alexandria.
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