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.