The Tied Vote

Most US state governments follow the federal government model: a legislature composed of two chambers, an executive headed by a governor and a state supreme court. The Commonwealth of Virginia is one such state, although the Virginia General Assembly consists of the differently named House of Delegates as well as the Senate. Still, as William Shakespeare wrote, a rose by any other name would smell as sweet.

On occasion, I have been required to study state election laws. Minnesota and Missouri have highly complex and detailed rules about the conduct of elections, in particular what constitutes election fraud. I understand that all other states have similar laws. Oddly, there is nothing in the American Constitution and Bill of Rights which provides for one person, one vote, but the states cover the issue in their laws.

What happens if an election for a state seat is a tie or dead heat? You might think it cannot happen but last week, there was a tied election for a seat in the Virginia House of Delegates. After three recounts, a tie was declared and a state official drew lots from a bowl to choose the winner, Republican David Yancey. The Democrat candidate, Shelley Simonds, refused to concede and told the press, “All options are on the table.” This is political language for “it’s with the attorneys.” However, unless Simonds can prove the count was in error, this is a done deal.

Virginia state law requires a tie to be determined “by lot”, which is interpreted to mean picking a name out of a bowl, drawing straws or flipping a coin. Is this a good way to settle an election? Probably not but what are the alternatives? Candidates could compete in a different way, like playing a frame of pool. I accept this has nothing to do with the job in question. Certainly, it isn’t democratic. A new election could be held but what if the result is the same? The problem remains. Do you keep having elections until there is a clear winner? As a solution, the drawing of lots does precisely and unequivocally what it is meant to do. It breaks the tie.

There are practical considerations if a democratic result is wanted. Elections are expensive and take time. For a district of tens of thousands of people spread over multiple municipalities, the costs are a factor: staff time, polling places, distributing machines, etc. Would the voters be happy to see tax dollars spent in this way?

Before my British readers hold up their hands in horror at the undemocratic Virginian solution, they might like to know that in the 1886 general election, there was a tie in Ashton-under-Lyne, with the Liberal and Conservative candidates each receiving 3,049 votes. The Acting Returning Officer gave his casting vote to the Conservative. Times have changed and the modern British convention is that, if votes remain level after recounts, the Returning Officer will decide the winner by a random method such as tossing a coin, drawing straws or putting candidates’ names in a container and pulling one out. In this, we are clearly in step with our Virginian cousins.

Elections are imprecise. People spoil ballot papers and they abstain. In the event of a tie, is it not better to accept the imprecision and acknowledge that the will of the people cannot always be measured perfectly? Is it not better to settle things on a toss of a coin rather than continue to maintain a pretence and force an equally imprecise result?

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I know from e-mails received this week that some of you expect me to comment on THAT BOOK. I cannot do so as I have not read it, nor have I any intention of doing so. If you’re a Democrat, the book allegedly demonstrates that Mr Trump is unfit for office; if you’re a Republican, it’s all about Bannon. Oddly, Mr Trump is reported saying he never gave any interviews to Wolff. The White House “ticker”, a comprehensive record of the President’s movements in three minute segments, as well as his meetings and phone calls, will disclose the truth of this statement.

One reader of my blog put it like this: “if Trump is unfit for office, should he not go?” Unless Mr Trump resigns, one way to remove him from office permanently is through the impeachment process. He has to be tried and convicted of treason, bribery or a high crime and misdemeanour. I am unaware of any evidence which can be produced to Congress that approaches the benchmark set in the Constitution. That is not to say there is no evidence. I have written on several occasions that the Mueller investigation may well prove to be Trump’s Achilles heel. The acid test will be whether there are 67 US Senators willing to convict him.

As an alternative, Section 4 of the 25^th Amendment affords to the Vice President and a majority of the cabinet the right to declare that the President is unable to discharge his office. In that event, the VP assumes the office of President. However, if and when the President sends a written declaration to Congress that no inability exists, he resumes office, subject to the right of the VP and executive to maintain the President remains unfit. What would happen next is anyone’s guess. The Section has never been invoked and it would be pure speculation on my part to assume that it will be used against Mr Trump. The only certainty is paralysis in DC.

It needs to be remembered that tens of millions of Americans voted for Mr Trump and their choice should not be capable of easy removal, no matter how much a genius he might be….in his own mind. However, Mr Trump should beware of crying “Wolff” once too often.