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Rock Paper Scissors. (Photo: Shutterstock).

Just one state has no law to break election ties and it’s New Jersey

Less than 16% of voters turned out in tie-breaking do-over elections this year in Maywood and South Toms River

By David Wildstein, March 23 2022 12:08 pm

New Jersey is the only state that doesn’t have a tie-breaking statute, so seats sit vacant until judges and county election officials can agree on a date for a do-over election that typically draws relatively few voters.

In South Toms River just last week, just 15.9% of voters participated in a special election for a borough council seat that had been empty for a year as judges mulled challenges to a November 2020 election that ended in a tie.

The Maywood special election in February had a 15.7% voter turnout.

Turnout in South River was 65% in the 2020 general election and 32% in the 2021 general.  Maywood has 75% of voters turnout in 2020 and 41% in 2021.

Some states have different approaches to breaking ties that offer an immediate resolution to an election.

Seven states, including New York, break ties with a coin flip.   Three states – not surprisingly, Nevada is in this group – uses a deck of cards to determine an election winner.  South Dakota once used a single hand of poker.  Several states draw straws to break a tie.  Florida allows election officials to pick a game of chance; one recent tie was settled in a two-tier event: a coin flip allowed one candidate to pick first from a bag filled with numbered ping-pong balls.  They candidate who drew the highest number was certified as the winner of the election.

When candidates for the Ocala, Florida city council tied in 2012, officials considered a game of Rock Paper Scissors.

When a state legislative race that would determine party control of the Virginia legislature ended in a tie in 2018, officials drew the name of one candidate from a ceramic bowl.

Just 366 votes separated the two presidential candidates in New Mexico in 2000.  A switch of 183 votes would have forced George W. Bush and Al Gore to play one single hand of poke

Al Gore carried New Mexico by 366 votes over George W. Bush in the 2000 presidential race.  A switch of 183 votes would have forced Gore and Bush to return to Santa Fe to play one hand of poker to determine which candidate received the state’s five electoral votes.

While ties in New Jersey are rare, close races are not.

In 2019, just three votes separated the two candidates for mayor of Sayreville and the East Rutherford mayoral race was won by five votes.

Vince Mazzeo (D-Northfield) ousted a Republican assemblyman in 2013 by 40 votes, and Tim Eustace (D-Maywood) survived a re-election bid for State Assembly by 56 votes that year.  Andrew Zwicker (D-South Brunswick) defeated a GOP assemblywoman by 78 votes in 2015.

Tom Kean was elected Governor in 1981 by a mere 1,677 vote out of more than 2.3 million cast.

An 1844 race for a Central Jersey congressional seat was decided by 16 votes in a race that was eventually decided by the House after one candidate challenged the legality of 36 votes cast by Princeton University students who came from other districts and states.

In fictional Pawnee, Indiana, used as the backdrop to the Parks & Recreation TV sitcom, the system to break a tie was simple: “In the event of an exact tie, the seat is awarded to the male candidate, and the female candidate is put in jail.”

One tie-breaking option unlikely to win much support would be the method used by former New Jersey Supreme Court Justice John E. Wallace, Jr. during the congressional redistricting process.  He simply went with the party that lost the previous vote.

Under the Wallace Doctrine, Maywood would have still flipped Republican, but the South Toms River seat would have gone to the Democrats.

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