What Happens If the Vote Ends In a Tie?

one day after a recount flipped the results of the November 2017 race in the 94th District, a three-judge panel reconsidered one vote - and each candidate ended up with 11,608 votes
one day after a recount flipped the results of the November 2017 race in the 94th District, a three-judge panel reconsidered one vote - and each candidate ended up with 11,608 votes
Source: Daily Press (December 20, 2017)

One vote can make a difference. In 2017, the race for the House of Delegates seat in the 94th District ended up as a tie. The initial vote counts gave the Republican incumbent a 10-vote victory. The recount a month later ended with the Democratic challenger winning, with a margin of just one vote.

News coverage repeated the old adage "Every vote counts." If the recount was upheld and the Democratic challenger won, then the House of Delegates would end up with 50 Democrats and 50 Republicans. The winner of the race in the 94th District, and control of half of the General Assembly, came down to one vote.

The tabulating machines had recorded only the ballots where the bubble had been filled in. About 200 of the 33,000 ballots could not be read automatically by the machines. Election officials had to decide in the recount process how, or if, to count each of those ballots.

Most of the votes added in the recount involved ballots where the voter filled in the "D" to the right of the Democratic candidate's name, instead of the bubble on the left of the name. Both candidates gained votes in the recount, but the Democratic candidate gained 11 more than the Republican candidate. Since the original tally had placed the Republican candidate ahead by 10 votes, the effect was to flip the race and make the Democratic candidate the winner.1

The evening after the recount was completed, an election official had second thoughts about a particular ballot from the Warwick precinct. On that ballot, the voter had filled in the bubbles for both candidates for the House of Delegates seat. After a discussion of several minutes during the recount, neither candidate was awarded the vote since both bubbles had been filled in.

The recount official reconsidered his actions after going home, talked to lawyers for the Republican candidate, and decided the ballot should be counted. A voter had drawn a line through the name of the Democrat, but all other bubbles were clearly filled in for Republicans.

That evening, after the recount had been officially concluded, the recount official and the lawyers decided the ballot should be counted for the Republican incumbent.

the ballot that flipped an election back to tied in 2017
the ballot that flipped an election back to "tied" in 2017
Source: Virginia Public Access Project, Added Ballot and State Guidelines to Determine Voter Intent

They took that argument to the three-judge panel overseeing the recount process, and responsible for finally certifying the election for the House of Delegates race. The judges examined that particular ballot, made an independent judgment, and decided unanimously that it should be counted for the Republican incumbent rather than not counted.

Lawyers for the Democratic candidate had not come prepared to contest any of the other ballots tabulated in the recount the day before. As a result of adding one more vote for the Republican incumbent, each candidate ended up with 11,608 votes. The Democratic candidate later called the challenge a "stunt" and commented in frustration:2

The judges decided to allow my opponent to pull one vote and look at one vote and that is not part of the recount process. My team followed the rules of the recount process and the other side really didn’t.

The ruling of the three-judge court sent the election results to the State Board of Elections. State law calls for it to decide a tied race for state office "by lot." Local races are decided similarly, by local electoral boards.3

the 2017 election in the 94th District for the House of Delegates finished in an 11,608-11,608 tie vote
the 2017 election in the 94th District for the House of Delegates finished in an 11,608-11,608 tie vote
Source: Division of Legislative Services, Current District Maps

Less than half of the 52,753 registered voters had gone to the polls to vote in the 94th District race that finished in a tie. Each voter, or non-voter, had a chance to realize the impact of their individual choice in that race. One mother noted that her son had failed to go to the polls and cast a ballot:4

I couldn't get him off the couch... It was late. And he was tired from work. I bet he'll never do that again.

To select a winner for the 94th District seat in 2017 "by lot," the State Board of Elections chose to place the names of each candidate inside a film canister, a remnant of the days before digital cameras. The same process was used by the Board each election to decide the order of candidates on the ballot.5

On January 4, 2018, the canisters were swirled in a blue ceramic bowl, one was picked at random by the chair of the Virginia State Board of Elections, and then the vice-chair opened the second canister to prove both names had been placed in the bowl.

Random selection of the film canister resulted in the Republican incumbent being chosen as the winner. The member of the House of Delegates from the 94th District, and partisan control of that half of the legislature for the 2018 session, was not decided until two months after the November 7, 2017 election. Just 40 minutes before the 2018 General Assembly opened, the Democratic candidate conceded the race.6

the chair of the Virginia State Board of Elections chose a film canister with the name of the 2017 winner of the 94th District election
the chair of the Virginia State Board of Elections chose a film canister with the name of the 2017 winner of the 94th District election
Source: Virginia State Board of Elections, State Board of Elections Meeting to Determine Winner of 94th House Seat

Six months later, the Virginia Department of Elections revealed an irregularity that might have affected the race. The Lee Hall precinct was a "split" precinct, with residents assigned to both the 93rd District and the 94th District of the House of Delegates. The state revealed, long after the election had been decided, that some residents in that particular precinct had been assigned to the wrong district.

In 2016, new streets had not been added to the map used by the Newport News registrar when it assigned seven apartment buildings to the 93rd District, apparently because the new buildings had addresses with Zip Code 23604. That is the dominant Zip Code for the 93rd District. Except for seven streets, all of the 94th District (where the tie vote occurred in 2017) uses Zip Code 23608.

In theory, Zip Codes are irrelevant to voting districts. In practice, local registrars who do not use Geographic Information System technology effectively may rely upon mailing addresses when assigning new residential buildings to a voting district. The seven apartment buildings assigned to the 93rd District instead of the 94th District were not on the edge of the two districts, so the mistake was not due to a error in reading maps.

26 people in seven apartment buildings voted in the 93rd instead of the 94th District in 2019, due to an error by the local registrar
26 people in seven apartment buildings voted in the 93rd instead of the 94th District in 2019, due to an error by the local registrar
Source: Newport News, GIS Map Viewer

Demographically, residents in the seven apartment buildings are primarily African-American. The Washington Post examined records of voting in Democratic and Republican primaries, public data which can indicate the political leanings of individual voters. Of the 26 misassigned voters, 17 had voted exclusively in Democratic primaries, one had voted in a Republican primary, and eight had not voted in a primary.

the seven apartment buildings are not on the edge of the 94th District
the seven apartment buildings are not on the edge of the 94th District
Source: Virgiia General Assembly, Who's My Legislator

That suggests the mistake cost the Democratic candidate enough votes to have won the election. After hearing the news, she commented:7

There are thousands of ways I could have won that election... So many different ways. You’ve just given me another 26 ways.

the seven apartment buildings are in Zip Code 23608, while most of the 94th House District is in Zip Code 23604
the seven apartment buildings are in Zip Code 23608, while most of the 94th House District is in Zip Code 23604
Source: ESRI, ArcGIS Online

The publicity over the tie vote for the 94th District seat in the House of Delegates obscured another election in 2017 that was decided by one vote. The initial report for the Fancy Gap District seat on the Carroll County School Board had the incumbent winning reelection by three votes, 501 to 498. After the recount, the final talley was 500-499.8

the 2017 election for the Fancy Gap District seat on the Carroll County School Board was decided by one vote
the 2017 election for the Fancy Gap District seat on the Carroll County School Board was decided by one vote
Source: ESRI, ArcGIS Online

the Fancy Gap District election in 2017 ended in a 500-499 vote
the Fancy Gap District election in 2017 ended in a 500-499 vote
Source: Carroll County School Board, School Board Members

If an election for Governor of Virginia ever ends in a tie vote after the inevitable recounts, the entire General Assembly will determine the winner. That process was defined in the 1850 constitution, which went into effect in 1851.

There was no need for a procedure in case of a tie vote until that third state constitution was adopted. Between 1776-1851, Virginia voters did not vote directly for the governor. Under the first two state constitutions, the members of the state legislature elected the leader of the state's executive branch.

the 1850 constitution defined the process for a vote of the entire General Assembly to select the governor in case of a tie vote
the 1850 constitution defined the process for a vote of the entire General Assembly to select the governor in case of a tie vote
Source: For Virginians: Government Matters, Constitution of 1851

the 1864 constitution adopted by the Restored Government of Virginia, and later constitutions, have perpetuated the process for selecting the governor in case of a tie vote
the 1864 constitution adopted by the Restored Government of Virginia, and later constitutions, have perpetuated the process for selecting the governor in case of a tie vote
Source: For Virginians: Government Matters, Constitution of 1864

in case of a tie vote for governor, the current constitution continues the selection process established in 1950
in case of a tie vote for governor, the current constitution continues the selection process established in 1950
Source: For Virginians: Government Matters, Constitution of 1971

Prior to the 2017 election, the last time a recount flipped the results of a race was in 1991, when recounts changed the winners of two House of Delegates races.

One race involved a House of Delegates race in Fairfax County for the 53rd District. The initial vote count had Jim Scott losing to David G. Sanders by 17 votes. Del. Scott became known as "Landslide Jim" because he ended up after the recount as the winner by one vote. He went on to be re-elected 10 times, until retiring in 2013.9

Landslide Jim Scott won the 1991 race for the 53rd District of the House of Delegates by one vote, after the recount
"Landslide Jim" Scott won the 1991 race for the 53rd District of the House of Delegates by one vote, after the recount
Source: Virginia State Board of Elections, Official Election Results 1991

The other 1991 race involved the 58th District around Charlottesville. The Democratic candidate was declared the winner on election night by one vote, 8,554 to 8,553. The recount determined that Greene County officials had confused a "9" with a "0." The Republican, Peter T. Way, went on to serve two terms in the House of Delegates before retiring in 1997.10

a recount changed the winner of the 1991 race in the 58th District of the House of Delegates
a recount changed the winner of the 1991 race in the 58th District of the House of Delegates
Source: Virginia State Board of Elections, Official Election Results 1991

The mechanism for breaking a tie has changed since the 1971 race for the 19th District seat in the House of Delegates. At the time, Virginia had multi-member districts; the 100 members in the House of Delegates were elected from a total of just 49 separate districts. Six people were elected from District 19, and after the initial tally Republican William H. Moss was in seventh place behind Democrat Jim Burch.

Moss demanded a recount. Election officials discarded one write-in ballot they labelled as "defaced" and ultimately certified that each candidate had received 16,410 votes.11

The voter who had cast the ballot was an 18-year old student at Colgate University, Stephen Burns. He figured out that the defaced ballot discarded in the recount was his, and contacted the Washington Post.

The newspaper revisited the experience with Stephen Burns in 2017, after the Newport News election results were affected by judges who chose to count rather than exclude a "defaced" ballot:12

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.” 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.

in 1971, there was a tie vote for the sixth person to be elected from the 19th District on the House of Delegates
in 1971, there was a tie vote for the sixth person to be elected from the 19th District on the House of Delegates
Source: Virginia State Board of Elections, 1971 House of Delegates General Election - District 19

The election had been held on November 2, 1971, and it took almost two months to choose the winner. On December 29, the State Board of Elections placed the names of the two candidates into a large silver cup. The cup had once been part of the silver service on the USS Virginia, a battleship built at Newport News in 1906 and decommissioned after World War I.

a large cup from the former USS Virginia was pulled from the silver collection at the Executive Mansion in 1971 and used to break a tie vote
a large cup from the former USS Virginia was pulled from the silver collection at the Executive Mansion in 1971 and used to break a tie vote
Source: Naval History and Heritage Command, NH 105770 USS Virginia

A blindfold covered the eyes of the chair of the State Board of Elections, who reached into the cup and selected the name of the winner. The winner of the race, selected at random, agreed with the loser's comment:13

It’s a bad way to decide any election... There should have been a runoff to let the people decide.

the 1971 tie vote in the race for the House of Delegates 19th District earned an asterisk in the official records
the 1971 tie vote in the race for the House of Delegates 19th District earned an asterisk in the official records
Source: Virginia State Board of Elections, Official Election Results, 1971 (p.29)

In 2014, there was an 89-89 tie for the Sulphur Springs District seat on the Hillsville town council. The Carroll County Electoral Board placed names of each candidate in an envelope, shuffled them, and selected the winner. The challenger (who had previously served as mayor) replaced the incumbent, who noted afterwards:14

At least this way, we know that no one was liked more than the other, or hated more than the other.

the 2014 election for the Sulphur Springs District seat on the Hillsville town council ended in an 89-89 tie
the 2014 election for the Sulphur Springs District seat on the Hillsville town council ended in an 89-89 tie
Source: ESRI, ArcGIS Online

The City of Williamsburg has chosen a unique way to select a winner "by lot" that reflects the colonial heritage of that city. In case of a tie, an election official selects names at random from a tri-cornered hat. The draw-from-the-hat process was used in a 1986 race for City Council that ended in a tie.

In 2007, no one filed to be on the ballot for a seat on the Colonial Soil and Water Conservation District Board. Two William and Mary College students ended up with three write-in votes. (There were more write-in votes for Stephen Colbert, a late-night television personality, but he was not a resident so he was not eligible to serve.) Once again, the tri-cornered hat was used for selection of a winner at random.15

Disfranchisement and Voter Suppression After the Civil War

Voting in Colonial Virginia

Voting in Modern Virginia

Links

References

1. "Did recount judge have a conflict of interest?," Daily Press, December 22, 2017, http://www.dailypress.com/news/newport-news/dp-nws-newport-news-sugg-recusal-20171221-story.html (last checked December 26, 2017)
2. "Republican awarded 1 more vote, causing a tie in House race that will decide balance of power," The Virginian-Pilot, December 20, 2017, https://pilotonline.com/news/government/politics/virginia/republican-awarded-more-vote-causing-a-tie-in-house-race/article_ecdf9e8a-1f10-5dc7-a955-9873e3f60ebe.html; "After 94th District recount in Newport News, Democrat Shelly Simonds wins by one vote," Daily Press, December 19, 2017, http://www.dailypress.com/news/newport-news/dp-nws-newport-news-94th-district-recount-20171214-story.html; "National spotlight shines on Newport News' 94th District," Daily News, December 22, 2017, http://www.dailypress.com/news/newport-news/dp-nws-politics-94th-district-national-spotlight-20171222-story.html; "Simonds says Yancey's team pulled 'stunt' in court certification," Daily Press, December 22, 2017, http://www.dailypress.com/news/newport-news/dp-nws-newport-news-simonds-reaction-20171221-story.html (last checked December 26, 2017)
3. Code of Virginia, Title 24.2. Elections » Chapter 6. The Election » § 24.2-674. Determination by lot in case of tie, https://law.lis.virginia.gov/vacode/title24.2/chapter6/section24.2-674/ (last checked December 20, 2017)
4. "'It really does matter': Virginia voters regret staying home after House tie over 1 ballot," The Virginian-Pilot, December 20, 2017, https://pilotonline.com/news/government/politics/local/it-really-does-matter-virginia-voters-regret-staying-home-after/article_5ab16e6c-3ffa-52e1-b78f-a3497264c224.html (last checked December 21,2017)
5. "After 94th District recount, judges rule it's a tie," Daily Press, December 20, 2017, http://www.dailypress.com/news/newport-news/dp-nws-94th-district-judge-certification-20171220-story.html; "After ballot court battle, winner of tied Virginia House race will be chosen at random — with slips of paper in film canisters," The Virginian-Pilot, December 20, 2017, https://pilotonline.com/news/government/politics/virginia/republican-awarded-more-vote-causing-a-tie-in-house-race/article_ecdf9e8a-1f10-5dc7-a955-9873e3f60ebe.html (last checked December 21, 2017)
6. "Simonds concedes, Yancey takes his seat," Daily Press, January 10, 2018, http://www.dailypress.com/news/newport-news/dp-nws-politics-simonds-concession-20180110-story.html (last checked January 12, 2018)
7. "Voting irregularity found in controversial 94th District election," Daily Press, May 10, 2018, http://www.dailypress.com/news/politics/dp-nws-94th-ballots-20180510-story.html; "Va. election officials assigned 26 voters to the wrong district. It might’ve cost Democrats a pivotal race," Washington Post, May 13, 2018, https://www.washingtonpost.com/local/virginia-politics/voters-assigned-to-wrong-districts-may-have-cost-democrats-in-pivotal-virginia-race/2018/05/13/09a9dd8a-5465-11e8-a551-5b648abe29ef_story.html (last checked May 14, 2018)
8. "Haynes wins Fancy Gap recount by single vote," The Carroll News, December 28, 2017, http://www.thecarrollnews.com/news/3923/haynes-wins-fancy-gap-recount-by-single-vote (last checked January 5, 2018)
9. "James M. Scott, Fairfax County delegate in Virginia legislature, dies at 78," Washington Post, April 20, 2017, https://www.washingtonpost.com/local/obituaries/james-m-scott-fairfax-county-delegate-in-virginia-legislature-dies-at-78/2017/04/20/f8fa6ac4-251a-11e7-b503-9d616bd5a305_story.html (last checked December 20, 2017)
10. "Counting recounts," Daily Press, December 12, 2017, http://www.dailypress.com/news/politics/shad-plank-blog/dp-nws-recount-history-20171212-story.html; "Democrat Files Challenge Of 17-Vote Loss In Fairfax Delegate Race," Washington Post, November 26, 1991, https://www.washingtonpost.com/archive/local/1991/11/26/democrat-files-challenge-of-17-vote-loss-in-fairfax-delegate-race/21643ee6-f3e1-4f20-8243-2bb040152647/ (last checked December 20, 2017)
11. "Elections Database," Virginia State Board of Elections, 1971, http://historical.elections.virginia.gov/elections/search/year_from:1971/year_to:1971/office_id:8 (last checked December 22, 2017)
12. "The teen who messed up his absentee ballot, creating Virginia’s previous tied race," Washington Post, December 31, 2017, https://www.washingtonpost.com/news/retropolis/wp/2017/12/31/elections-gone-wild-the-teen-who-messed-up-his-absentee-ballot-creating-va-s-last-tied-race/ (last checked January 1, 2018)
13. "Virginia elections board to pick random winner in tied House race: 'They put two names in, somebody shakes it up, and they pull it'" Richmond Times-Dispatch, December 20, 2017, http://www.richmond.com/news/virginia/government-politics/virginia-elections-board-to-pick-random-winner-in-tied-house/article_203dc6b1-0cb6-5027-bc22-10b4ebfad10d.html; "Va. Vote Count Painstaking Process," Washington Post, November 9, 1978, https://www.washingtonpost.com/archive/politics/1978/11/09/va-vote-count-painstaking-process/1a1cf5d5-1aca-488b-9c14-8ea116a0e775/; "USS Virginia (Battleship # 13, later BB-13), 1906-1923," Naval History and Heritage Command, (last checked December 22, 2017)
14. "Tate wins drawing for seat on Hillsville Town Council," Galax Gazette, May 9, 2014, http://www.galaxgazette.com/content/tate-wins-drawing-seat-hillsville-town-council (last checked December 22, 2017)
15. "Two recent Williamsburg elections were decided by drawing names from a hat," Williamsburg-Yorktown Daily, December 21, 2017, https://wydaily.com/2017/12/21/two-recent-williamsburg-elections-were-decided-by-drawing-names-from-a-hat-nws-pltcs/ (last checked December 22, 2017)


Virginia Government and Virginia Politics
Virginia Places