Wednesday, January 26, 2022

‘No real rules’ on how to break a tie, W&M election law expert says

Pictured on left, Shelly Simonds, on right Del. David Yancey

When the Board of Elections meets Wednesday to decide the winner of a state House race in Newport News, more than just one seat will hang in the balance.

So will the power structure in Richmond, including whether Republicans retain a slender majority or whether the House will be tied 50-50 between the GOP and Democrats.

The contest is currently tied between Del. David Yancey and Shelly Simonds, the Democratic challenger.

That makes for a rare event, according to an election law expert at William & Mary Law School.

“Who would ever have imagined?” said Professor Rebecca Green, who specializes in election law. “You can’t make this stuff up.”

Though election law is extensively codified in Virginia, existing law and regulations don’t provide a lot of guidance for the scenario in the 94th district, where a three-judge panel declared a tie on the heels of a recount, which had found Simonds won by one vote.

“There are no real rules here,” said Green. “All we really know is they have to draw by lot,” she added, referring a code provision commonly construed to mean the board must decide by chance — such as flipping a coin or drawing straws.

Without more specific guidance, Green said, much about the process of determining the winner falls within the board’s discretion.

That includes which method of chance to use — such as putting names on slips of paper in a vessel of some kind and shaking it.

“I think we know it has to be done in public,” Green said.

It’s also unclear whether the board must give the news media access to the event, Green said – though, she added, she’d be surprised if media coverage were not allowed.

“It’s just a crazy set of circumstances,” Green said.

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Joan Quigley
Joan Quigley is a former Miami Herald business reporter, a graduate of Columbia Journalism School and an attorney. Her writing has appeared in the Washington Post, TIME.com, nationalgeographic.com and Talking Points Memo. Her recent book, Just Another Southern Town: Mary Church Terrell and the Struggle for Racial Justice in the Nation’s Capital, was shortlisted for the 2017 Mark Lynton History Prize. Her first book, The Day the Earth Caved In: An American Mining Tragedy, won the 2005 J. Anthony Lukas Work-in-Progress Award.

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