Posted: Nov. 15, 2004
A TIE VOTE GOES TO THE GOVERNOR
By Celia Cohen
There appears to be a way, after all, to break a tie vote for an election in one of Delaware's three counties. The governor gets to do it.
A provision in the law was overlooked when attorneys involved in a microchip-thin recount for a Sussex County Council seat 10 days ago checked cursorily through the state code as the margin of victory, first tabulated at 12 votes, dwindled and dwindled.
When the results held at a three-vote edge for Democrat Lynn J. Rogers, the incumbent, over Republican A. Judson Bennett, there was no need for an exhaustive legal search. The lawyers concluded the code inadequately declared a tie vote to be a vacancy in office without offering a definitive solution for filling it.
Enter Richard L. Abbott, a Wilmington lawyer who was a New Castle County Republican councilman until 2002 when he lost a primary -- by nine votes.
Not only that, but the primary was said to be masterminded by Thomas P. Gordon and Sherry L. Freebery, the outgoing Democratic county executive and chief administrative officer. It became part of a federal investigation leading to corruption charges against the two officials.
No wonder Abbott knows a little something about close elections. He sent an e-mail to Delaware Grapevine to point out the applicable section of the law. The attorneys in the recount had consulted the state code covering "canvass of vote" and "county government and administrators," but the provision that Abbott cited was under "county governments generally."
It says that deadlocks are to be broken by the governor, "who shall forthwith appoint one of the candidates involved in the tie."
In other words, with the governorship belonging to Ruth Ann Minner, a fellow Democrat of Rogers, no doubt the election still would have gone badly for Bennett.
"As a practical matter, Jud Bennett can figure that he actually lost the election by four votes. I doubt that Gov. Minner would have appointed him," Abbott wrote. "Having lost a squeaker of an election myself, I certainly feel Jud Bennett's pain."
Even with Abbott's input, however, not all the questions about tie votes are answered. Once the governor settles the election, the law says the winner is to serve a two-year term. County officeholders serve four-year terms.
"This leads one to ask whether the next election is also for a two-year term, or whether it is for a four-year term?" said Richard A. Forsten, a Wilmington lawyer who is counsel to the Republican Party and worked on the Rogers-Bennett recount.
In addition, there remains nothing in the law about settling ties for governor or other statewide offices or the Congress or the president, faint as the possibility seems to be with so many votes cast in those races. Nor does the law regarding county deadlocks make clear when the governor's choice is to assume office.
"Kudos to Mr. Abbott," Forsten said. "Let's just hope we never have a tie election."