Election Tie Breakers — Coin Flips, Straw Draws, and More
Every now and then it happens. The polls have closed and the count begins. It’s a close race, and the lead shifts back and forth. Who would have thought that just one or two votes — perhaps your vote or mine — could make all the difference? Yet it can. Many races are very close. And sometimes, right at the end — with all the absentee ballots in and counted – the two candidates are tied. What happens then?
In a lot of places, it’s not a problem. There’ll be a runoff election, and in that runoff, there is usually a clear winner. But what if there’s not? Or what if a jurisdiction doesn’t provide for a runoff? Somebody must fill the office. How is the winner determined?
That happened in the Town Council election in Rock Hall, Md., in 2011. Council member Bob Willis was elected mayor, leaving his council seat vacant. In the race for the remaining council seats, two candidates — Brian Jones and Brian Nesspor — were tied, with 204 votes each, according to the Chestertown Spy.
Representing the Board of Elections, attorney Charles MacLeod offered the candidates the choice of a coin flip or drawing the high card from a deck. After some negotiation, the candidates agreed to the coin flip, on condition that the winner of the toss would support the loser’s being appointed to fill Willis’s vacant seat after being sworn in. A quarter was flipped, Nesspor called “heads,” and heads it was. Nesspor kept his promise to Jones, who was appointed to the open seat.
While MacLeod’s suggestion was an improvised answer to the tied Rock Hall council race, it wasn’t the first time in American history such a solution was used. In 2006, the Democratic primary in Alaska resulted in a tie vote between two candidates for a state house seat; according to a story on The Well News website, incumbent Carl Moses lost a coin flip to Bryce Edgmon, who went on to win the general election and rose to become speaker of the Alaska House of Representatives.
Virginia has a 1705 law stating that a tied election is to be settled by placing the tied candidates’ names in a ceramic bowl and drawing out the winner. The law came into play in 2017, when two candidates for the Virginia House of Delegates’ 94th District came out of the election with 11,608 votes apiece. At stake was not only the district seat, but the majority in the House of Delegates — if Democrat Shelly Simonds won, the parties would be tied at 50 seats apiece, and if Republican David Yancey won, his party would have a 51-49 seat advantage. The draw, by a member of the state board of elections, went in Yancey’s favor, and gave control of the House to the Republicans.
In fact, according to the National Conference of State Legislatures, there are currently 28 states where coin flips, drawing straws, or other random methods can be used to settle a tied election. Others choose to have the tie decided by some third party — the legislature, the governor, the state board of elections — or call for a new election to break the tie. Apparently, New Jersey is the only state where there is no legally designated method to resolve tie votes.
Our nation has never needed a coin flip — or the equivalent — in a presidential election, thanks to the Constitution’s 12th Amendment, which spells out the elaborate process for determining the presidential winner. While there have been some uncomfortably close races — remember the election in 2000 with the controversy over “hanging chads” in Florida? — our Constitution has so far managed to spare us that final bit of randomness. That too-close-to-call 2000 election was finally called by the Supreme Court, with Republican George W. Bush receiving the presidency rather than Democratic candidate Al Gore. Although not everybody was happy with that decision, at least it wasn’t a coin flip.
We all expect our representatives — whether on the town council, on the county school board, or in the U.S. Congress — to feel responsibility to all their constituents, even those who didn’t vote for them. The best way to avoid the awkwardness of tie votes is to remember that all votes are needed. You won’t always get your preferred candidate elected. Hopefully you won’t be represented by someone who just got lucky when a coin was in the air. And maybe your vote will be the one that breaks the tie and makes the difference.
Peter Heck is a Chestertown-based writer and editor, who spent 10 years at the Kent County News and three more with the Chestertown Spy. He is the author of 10 novels and co-author of four plays, a book reviewer for Asimov’s and Kirkus Reviews, and an incorrigible guitarist.
Jane Jewell is a writer, editor, photographer, and teacher. She has worked in news, publishing, and as the director of a national writer's group. She lives in Chestertown with her husband Peter Heck, a ginger cat named Riley, and a lot of books.
Common Sense for the Eastern Shore
