On Thursday January 4, 2018 at 11:00 AM, in the teeth of inclement weather, a Board of Elections official drew Republican David Yancey’s name out of a stoneware bowl thus making Yancey the winner in the tied 94th House of Delegates race over Democrat Shelly Simonds. So what happens next? There has already been one recount in this race.
Many people assume that Simonds will be entitled to a second recount because Virginia Code § 24.2-674 states: “Any person who loses the determination by lot may petition for a recount pursuant to Article 1 (§ 24.2-800 et seq.) of Chapter 8 of this title.” However, in my opinion, this provision does not apply where there has already been a recount. In other words, this particular provision only applies in a case where there was a tie and the parties went straight to the drawing by lot without first going through a recount.
Please note that § 24.2-674 specifically states any recount shall be pursuant to Virginia Code (§ 24.2-800 et seq.) In this case the applicable provision is Virginia Code § 24.2-802. Subsection D of this provision clearly states: “There shall be only one redetermination of the vote in each precinct.” Since there has already been one redetermination, Simonds is not entitled to a second one.
As a minor matter. I believe § 24.2-802 was passed after § 24.2-674. There is a legal maxim that where statutes conflict a later passed statute takes precedence over a previously passed one. This is the principle of lex posterior derogat legi priori.
And let’s not forget, on Friday January 5, 2018, Reagan appointee Judge T.S. Ellis III of the Eastern District of Virginia will hold a hearing regarding a case brought by three voters in the 28th House of Delegates District who claim Judge Ellis should order a special election because a small number of voters were given the wrong ballot. That case pits Republican Bob Thomas who won the recount by 74 votes over Democrat Joshua Cole.
[…] had until January 16th to request another recount although there was some dispute as to whether or not that recount would be granted. She has vowed to run against Yancey for the […]
[…] afternoon, Shelly Simonds was still dithering about whether to call for a second recount which I previously pointed out she is not entitled to. Meanwhile calls continue to grow to abandon her Quixotic attempt to prolong […]
Dear Mr. Webster, I will readily acquiesce to your experience, wisdom and knowledge of the legal code (and I will readily admit, of these matters (and of many others,) that I am dumber than a box of rocks,) but I think the provisions that you mention can be understood in a different, but still reasoned fashion; and consequently, a different conclusion may be reached. First, it is not necessarily true that § 24.2-802 is in conflict with § 24.2-674, and therefore the principle of “lex posterior derogat legi priori” may not be applicable. The tie (in number of votes) that was discovered by the redetermination of the election necessitated a determination by lot. If you continue to read § 24.2-802, subsection D past “there shall be only one redetermination of the vote in each precinct,” you find [I have parsed the following text to what I believe is relevant,] “after determining all matters pertaining to the… redetermination of the vote… the court shall certify… the vote for each party to the recount and declare the person who received the higher number of votes to be… elected…” With this in mind, we can understand that the prohibition against more than one recount is based on the presumption that a redetermination will, in and of itself, provide the necessary information (i.e., who received more votes) to declare a winner. But this redetermination did not do that. It only determined that the election ended in a tie. It was the tie that necessitated the need for a new determination, (the determination by lot) that made the earlier redetermination irrelevant to the new determination and its results. Therefore, had the redetermination provided an election result that did not end in a tie, § 24.2-802 would hold. But since the recount only found a tie result (which in turn, afforded a determination by lot,) § 24.2-674 is germane, § 24.2-802 is irrelevant, and arguably, Ms. Simonds may be entitled to a second recount. Please accept my apologies for a fool’s strained logic and his incomprehension of the law. Cordially and Respectfully yours, N.B.
How many non-citizens, dead people, or people registered in multiple jurisdictions voted for the freaking Dem? Why was that not examined?
Just how would we do that?
Obviously, it should have been a coin flip. I am sure that Simonds will declare a paper drawing subject to all kinds of chicanery. By the way, I think Eric the half troll should now become a full troll.
And when the next recount ends in a tie, then we flip a coin, and then………???
Perhaps they should hold a drawing to determine whether there should be a recount.