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Virginia Board of Elections postpones tie-breaking draw to allow court to hear Democrats' challenge

The Virginia Board of Elections is struggling to make a determination as to the winner of a pivotal assembly race. (Photo by Chip Somodevilla/Getty Images)

The ongoing saga of the single vote that could determine the balance of power in the Virginia House of Delegates took another twist on Wednesday, as the Virginia Board of Elections postponed a tie-breaking name draw to determine the winner of the race between incumbent Republican David Yancey and Democratic challenger Shelly Simonds.

If Simonds wins the race, Democrats will control the Virginia House; if Yancey wins, Republicans will retain control.

The initial tally showed Simonds clinging to a 10-vote lead. After a recount, Simonds still held a lead of a single vote, but attorneys for Yancey successfully argued that a single ballot that had been discarded should be counted as a vote for Yancey, leaving the race a tie. The disputed ballot had the ovals for both Simonds and Yancey filled in, but there was a slash through the oval for Simonds.

Yancey's lawyers successfully argued before the Board of Elections that this ballot clearly represented a vote for Yancey, making the race a tie. Under Virginia law, if a race ends in a tie, the winner will be determined by the drawing of lots.

The drawing had originally been scheduled for Wednesday morning at 11 a.m. local time; however, after Simonds' lawyers filed a challenge in Newport News Circuit Court, asking the court to overturn the Board of Elections' determination that the controversial ballot should be counted for Yancey. In light of the ongoing legal challenge, the Board of Elections' chairman, James Alcorn, determined it would be prudent to postpone the random drawing in order to allow Simonds' legal challenge to run its course, saying that the drawing of names should be used only as an "action of last resort."

The Virginia legislature does not reconvene until Jan. 10. It is unclear what action the Board of Elections would take if Simonds' legal challenge is not resolved by that date. If neither candidate is seated on that date due to ongoing legal wrangling, Republicans will hold a 50-49 advantage in the Virginia House.

Republicans held a 16-seat advantage in the lower chamber prior to the November elections, which saw Democrats make huge gains in both chambers.

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