The last time Virginia pulled a name out of a hat to decide an election, Stephen Burns was a newly minted voter, so jazzed about getting the franchise that he was willing to jump through many hoops to pick his state legislators.
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Burns had meant to vote a straight Republican ticket, supporting the party’s push under Gov. Linwood Holton (R) to end segregation. But after filling out the ballot, which at the time did not identify General Assembly candidates by party, he realized he’d accidentally voted for two Democrats in what was then a multi-member House of Delegates district.
He neatly crossed out the Democrats’ names, then added a note: “Do not desire to vote for these two.”
It was all for naught.
Election judges ruled that Burns had “defaced” his ballot with the extra markings, and they tossed it out, even after he publicly came forward to explain his blunder. The ruling left the race for a Fairfax House seat dead even, leading to a tiebreaking drawing from a silver loving cup.
His candidate won. So in the end, no harm done. But the episode has been on Burns’s mind lately as Virginia grapples once again with a tied House race, a disputed ballot with extra markings and the prospect of letting the luck of the draw settle it all. Barring court intervention, the contest will be decided in Richmond on Thursday when a name is plucked from a turquoise, 19th-century pitcher. And this time, a lot more is riding on the outcome than the occupant of a single House seat. Control of the chamber hangs in the balance.
A win by Democratic challenger Shelly Simonds would split the 100-seat House down the middle, forcing a rare power-sharing arrangement in a chamber Republicans have controlled for 17 years. If incumbent Del. David E. Yancey (R-Newport News) prevails, the GOP would hold a 51-49 majority.
Burns says the political import of the current fight is of no interest him, now a 64-year-old political independent and nuclear regulatory commissioner. He has not lived in Virginia since the 1970s, raising his family in Maryland then moving with his wife to the District as empty-nesters.
But something about the Yancey-Simonds saga nags at Burns: His ballot was thrown out even though he went to great lengths to make his intentions clear. Yet the ballot at the center of the current fight — with bubbles filled in for both candidates, plus a slanted line across one bubble — seems harder, if not impossible to decipher. And still, that ballot was counted.
“I’ve been following the news of the tie vote in the Virginia House of Delegates race, not because I am keenly interested in Virginia politics, but because I myself voted in a tie election in Virginia and challenged the discarding of my ballot that would have broken the tie,” Burns wrote in an email to The Washington Post. “If my case still carries any precedent, it’s hard to see how the … [recount judges] validated the ballot that resulted in Mr. Yancey pulling into a tie with Ms. Simonds. Like mine, that ballot marked two boxes, but the voter didn’t even attempt to provide any clarification. If mine was considered ‘defaced’ and was thereby rejected, I don’t see how the one on which this race rests could be considered valid.”
Clara Belle Wheeler, the lone Republican on Virginia’s three-member Board of Elections, said the state has changed its recount guidelines. Since Virginia has moved away from touch-screen voting machines in recent years and back to paper ballots that can be physically reviewed, the guidelines have directed vote counters to divine the voter’s intent whenever possible.
“Now you can take into consideration the voter’s intent because everybody’s got paper,” she said.
If it’s fair game to interpret the voter’s intent these days, the question remains: Just what was that Yancey-Simonds voter trying to do on that ballot?
The voter, whose identity is unknown, filled in bubbles on the paper ballot for Simonds and Yancey but also made a slanted mark across the Simonds bubble. Was that an attempt to strike out the Simonds vote? Or was it half of an “X,” abandoned as the voter reverted to filling in bubbles? In a vote counted for Ed Gillespie, the GOP’s unsuccessful candidate for governor, the voter drew an “X” over the bubble in addition to filling it in.
After puzzling over the disputed ballot for hours on Dec. 19, three judges decided the extra mark was meant to nix the vote for Simonds. They counted the ballot for Yancey, an interpretation the GOP embraced. Democrats say it looks like an “overvote,” meaning an improper vote for both candidates, and should be tossed. They asked the judges to reconsider, causing the Elections Board to call off a planned drawing last week. The board said it will go ahead with the drawing Thursday unless the court acts.
Whatever the outcome, the battle drove Burns to the “family heirloom file” to reflect on his own role in Virginia’s last — and perhaps only — luck-of-the-draw election tiebreaker.
He looked through letters he wrote his folks from college, where he met his wife, Joan. News clippings about their son, Christopher, who followed his parents to Colgate, studied abroad in India and upon his return founded a cricket club on campus. Articles about their daughter, Allison, a 2003 field hockey champ at Montgomery County’s Springbrook High School. Mixed in with all that, he found a copy of The Post from Dec. 25, 1971.
Burns went out in the family car that Christmas Day to fetch extra copies from a 7-Eleven and wound up causing a fender bender in the parking lot. His parents weren’t even that mad about the car because right there on the front of the Metro section was a story all about him.
“Youth, 18, Says He Cast Vote That, Thrown Out, Tied Race,” read the headline. Underneath was a photo of him, dark hair swooped to one side, posing with a pen or pencil akin to what he used to fill out his ill-fated ballot.
Republican William H. Moss had a one-vote lead over Democrat Jim Burch for the sixth at-large seat in what was then a six-member district. But in a recount, judges decided to toss out a ballot with extra markings, which they deemed “defacement.” The result was a tie, 16,410 votes apiece.
Burns, back from college for Christmas break, realized the disputed ballot was his and went public.
“I thought that if I stepped forward and explained why I marked through the names, I could clear up some of the confusion and my vote could still count,” he said in that Christmas Day article. “I wanted to vote a straight GOP ballot because I felt the General Assembly needs to be a more two-party operation. The Democrats have been entrenched there for too long.”
Moss took up for his voter.
“I don’t think the court should take away this young man’s vote,” Moss, who died in 1981, told the paper. “This is the first time he has marked a ballot. He doesn’t want to be disenfranchised. He wants his vote to count.”
So did Mary Ann Innis, one of the judges Moss had selected for the recount.
“The two lines were drawn very meticulously,” she said. “It was clear enough to us who the vote was intended for. It seems to me that defacing a ballot would mean writing a dirty word or something on it.”
But the judges were not persuaded to count it. Then as now, state election law called for breaking ties by random drawing. The names were placed in sealed envelopes, and a blindfolded Elections Board chairman plucked one from a silver loving cup.
Moss was the winner. He served just one term before losing his reelection bid two years later.
Burns says that in his “old age,” he has become more sympathetic to the election judges who rejected his ballot.
“I understand the argument,” he said. “I can understand this, ‘If you make the mistake, it’s almost too bad.’ It’s clearer or easier to make a determination [to reject] without trying to interpret lines and things like that.”
But in a way, that makes it even harder for him to square what happened to his ballot with current events.
“Given what my experience was,” he said, “it’s hard for me to understand why that particular ballot should be good.”
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