Updated. When Whitefish City Council candidate Turner Askew asked for a manual recount in a close election, a prudent request given the trouble the county’s elections department is having conducting elections and counting ballots, he expected the numbers would change, but that either he or his opponent would be declared the winner. Instead, the recount ended in a tie — and, in a potential political mess.
Tied elections are uncommon, but they do occur. Usually, the tie is broken by the public toss of a fair coin, or its functional equivalent, and the winner takes his seat, sometimes with the new nickname of “Lucky” and joshing offers to join junkets to Las Vegas. In Montana, however, the law specifies the political body that must choose between the tied candidates, but does not mandate the method for breaking the tie. That leads to the worst of all methods: attempts to award the election by applying political criteria.
Updated. The best recent example of why that’s a bad idea occurred in late 2004, after the official canvass reported a tie vote in the contest for the legislature in House District 12 in Lake County. Eventually, Democrat Jeanne Windham won after Montana’s supreme court, in Big Spring v. Jore (zipped PDFs), ruled that at least one of seven disputed ballots cast for Jore was invalid:
Stated in plain English, the ultimate issue herein is whether the Twentieth Judicial District Court, Lake County, correctly determined that all seven ballots at issue were validly counted for Rick Jore. Since the race for House District 12 was declared a tie, it is undisputed that if the District Court erred with regard to any one of the seven ballots, Jeanne Windham will have won election to the Montana House of Representatives. We hold that the District Court erred in ruling that all seven of the ballots at issue, assigned to Rick Jore, were valid. Stated affirmatively, we hold that one or more of the seven ballots at issue is invalid. Therefore, we reverse the District Court.
While the court was deliberating the issue, Helena was abuzz with speculation regarding how the governor would choose the winner. I recommended a solution in a letter that the InterLake published in December, 2004:
The tie in the Jore-Windham legislative [Lake County, House District 12] election shines a spotlight on what I think are two defects in Montana’s system of elections.
The first defect is letting the governor break a tied election by any means he chooses. At best, that’s an invitation to mischief. At worst, it’s a prescription for corruption. And at a minimum, it ensures that half the electorate will think the governor’s decision was arbitrary and unfair.
I think a better system for breaking a tie would be the public toss of a fair coin or its functional equivalent. The Legislature can provide for this by passing a law, and I urge that it do so. In the meantime, both Governor Martz and Governor-elect Schweitzer could — and I believe, should — announce that they will break ties by the public toss of a fair coin.
The second defect is Montana’s constitutional requirement that a winning candidate need receive only a plurality of the votes cast for that office. In an election with three or more candidates, the winner might receive less than 40, or even 30, percent of the votes; hardly a mandate. In an occasional legislative contest this outcome might be tolerable, but in an election for governor such an outcome would weaken the winner politically, probably to the detriment of good government.
I favor amending the state’s constitution to require a runoff between the top two candidates in statewide contests if no candidate receives a majority of the votes cast for the office. A less stringent threshold — such as at least 40 percent — might be acceptable for some other elections, but we need to ensure that winning candidates really are reasonably representative of their districts. The Legislature should put such an amendment on the ballot for the 2006 general election.
In the 2005 session of the legislature, Bozeman Democrat Christopher Harris (no longer a legislator) responded to the deficiency in election law that the Jore-Windham contest highlighted by introducing HB-253, which would have required breaking ties with a random method, i.e. the public toss of a fair coin or its functional equivalent. HB-253 was approved 53 to 46 on the second reading in the House, but was shot down 34 to 63 on the third reading.
What happened to HB-253? Politics, the worst kind of politics. A look at who changed their votes on the third reading told the story. Members of the Democratic leadership who had supported the bill initially voted against the bill on the third reading. These leaders, working with a one-vote margin in the House, wanted every possible political advantage in the next election. Therefore, they decided, on the premise that what was best for the Democratic Party was best for Montana, that the best system for breaking a tie in a legislative election was to let the governor, whom they assumed would always be a Democrat, choose the winner. I was not able to confirm whether Governor Schweitzer was in on the deal, but common sense suggests that he must have been a co-conspirator.
Now the Whitefish City Council finds itself in the position that HB-253 would have prevented: needing to break a tie without method mandated by law. If the council is smart, it will vote to break the tie by the public toss of a fair coin.