When a State Election Can Be Literally Determined by a Coin Toss

… or drawing straws, or casting lots, or five-card stud—though thankfully not a duel.

It’s not what people have in mind when they say money wins elections.

“After all this work,” Joanne Ferrary says, “It could come down to a coin toss.”

Ferrary, a Democrat running for New Mexico state house in the 37th district, is deadlocked with her incumbent Republican Terry MacMillan. Nearly two weeks after Election Day, the votes have all been counted, and each candidate has received 6,247 of them.

It’s one of the weirder traditions of American democracy: In many states, if a race is tied, a “game by lot”—cards, straws, or most often, a coin toss—determines who goes to the house and who goes home. Months of campaigning, committee assignments, the fortunes of careers, the possibility of political change—it all comes down, like possession in a football game, to heads or tails.

Allowing chance to enter the core of a democratic system seems counterintuitive, although it's widely recognized today as an electoral tiebreak. In fact, the roots of election by lottery stretch back to ancient Athens. (Modern-day Americans aren’t the first people to be wary of the method; it was also used by sorcerers to predict the future. “Sorcery” comes from the Latin sors, meaning “lot.”) More recently, coin tosses have broken ties in New York, Illinois, Wisconsin, Ohio, Missouri, Washington, Florida, Minnesota and New Hampshire. South Dakota and Arizona have used card games. In Virginia, the winner has been chosen from a hat.

At the local level, it happens all the time. Earlier this month in tiny Kenton Vale, Kentucky, two candidates for city commission each received 28 votes. They were required by law to settle the dispute “by lot.” (A duel is expressly forbidden by the state’s constitution.) Two candidates went down to the courthouse to flip the sheriff's coin. One left a city commission member. The other left with new car tags.

For state office, on the other hand, a flip is quite a rare thing to see. A coin has decided a few primary elections—in Illinois, Alaska, and New Mexico—and only one general election in the last hundred years.

But while things could change, the New Mexico 37th isn’t the only state legislature race that’s currently tied. The chance of a toss-up—a metaphor so close to death we sometimes forget what it means—is also on the horizon in Alaska’s 34th district, knotted up at 4,054 to 4,054.

Jonathan Kreiss-Tomkins, the Democrat running against Republican Rep. Bill Thomas in the southeastern Alaska district, cautioned that a coin toss was a distant hypothetical, unlikely even with the vote tally currently tied. That race is still awaiting tens of votes, and will almost certainly fall within the margin of a state-sponsored recount.

Still, on Saturday, a day after the arrival of two votes from the fishing village of Port Alexander lifted Kreiss-Tomkins into a tie with Thomas, his campaign's Facebook page asked, “Anyone have a double-sided coin?” The last coin toss for state office in Alaska was in a Democratic primary in 2006.

In New Mexico, Ferrary and MacMillan are a step closer to the flip. With all votes in, their race is set for a recount in early December. If nothing changes, out comes the coin. Or another “game by lot.”

“It could also be five-card stud, I guess,” said Ferrary. But, then she wondered, what if no one has even a pair? If the candidates share the same high card? Could she lose her first election on a jack?

Coin tosses in the Land of Enchantment tend to come along about as often as cicadas. The last one for state office, the Las Cruces Sun-News reports, was in a 1996 Republican primary election for a state senate seat. Tied at 1,170 votes against opponent William Payne, D. Scott Glasrud called heads. The coin came up tails. Payne hasn't lost since.

At higher levels, ties are exceedingly rare. A 2001 study by Casey B. Mulligan and Charles G. Hunter found that only one of 16,577 federal elections between 1898 and 1992 was decided by a single vote (NY-36, 1910, 20,685 to 20,684). None was tied. Only twice in that period has a state-level general election been a tie. A 1978 state senate race in Rhode Island finished 4,110 to 4,110; a special election two months later was easily decided, with turnout down nearly 50 percent.

Two years later, in a New Mexico state house race, Robert Hawk beat Darron Hillary on a coin toss—the highest level election to be decided by coin.

But what are the alternatives? To have an election official decide, as sometimes happens in Commonwealth countries? To organize an expensive and logistically challenging special election in which turnout is almost guaranteed to drop?

Ferrary hopes she never has to call it. “I hope it can be decided by the voters,” she said, referring to next month’s recount. “With so much effort by so many people, it just seems sad that a coin toss can determine who goes to represent the district.”