The next morning, the judges received a letter from recount official Kenneth Mallory, chosen by Yancey’s team, saying that a ballot was tossed should have gone to Yancey. The voter had filled in the bubble next to Gillespie’s name, but also put an X through that bubble. She or he chose Republicans for two other statewide offices and had filled in the bubbles for both Yancey and Simonds. Simonds’ bubble had a slash through it.
Right before the hearing ended, Democrats said there was one ballot from Denbigh that they thought should be reviewed, but the judges said it was too late.
“It was really unfair that the Yancey team decided to pull this stunt and it made it unfair for our side because we were not prepared to be there with some other ballots to be considered,” Simonds said.
In the letter, Mallory wrote that he initially thought the ballot indicated a vote for Yancey. After a three- to four-minute debate, a recount official appointed by Simonds’ team convinced him that it shouldn’t be counted.
Yancey’s lawyer, Trevor Stanley, called Mallory Tuesday night, according to Gretchen Heal, Yancey’s legislative aide. Mallory then wrote the letter.
Heal said Simonds’ characterization wasn’t fair.
“I have empathy for (Simonds), I understand where she’s at, but the circumstances here — we didn’t go hunting this down,” Heal said Thursday. “It kind of happened beyond our purview, really.”
A lawyer for the Virginia House Democratic caucus, Marc Elias, said that the local court’s decision about the ballot was wrong and that he was assessing legal options. “The Republicans themselves had affirmed that this result was accurate yesterday before changing their minds today,” Mr. Elias said in a statement. “After conceding this seat and their majority, they are now desperately trying to claw both back.”
Ms. Simonds’s representative argued before the judges that the disputed ballot should not be counted because it was an example of an “overvote,” when multiple candidates for the same race are chosen. However, the Virginia Department of Elections, in a guide to hand-counting ballots, appears to address the issue, showing an example in which a voter marks two candidates but clarifies the intention using “an additional mark or marks that appear to indicate support.” In that case, the guide says, “the ballot shall be counted.”