Posted: Nov. 12, 2004
SUPPOSE THERE WAS A TIE?
By Celia Cohen
For two nerve-shredding days in Georgetown last week, Superior Court Judges T. Henley Graves and E. Scott Bradley sat as a Board of Canvass in the Sussex County Courthouse to sift through the election returns, both the machine tabulations and absentee ballots, to figure out who won a County Council seat.
The results on Election Night had Lynn J. Rogers, the Democratic incumbent, winning by 12 votes over A. Judson Bennett, the Republican challenger, in an eastern district stretching from Lewes to Milford.
As the recount proceeded tediously and tensely, Rogers' lead shriveled to three votes, but it held there, preserving not only the seat but the majority on the five-member council for the Democrats.
Out of 17,483 ballots, Rogers had 8,743 votes and Bennett had 8,740 votes. Bennett, after pondering the results over the weekend, conceded the election and declared he was going fishing.
There was relief that the outcome was settled, but there was another type of relief, too. As Rogers' margin shortened and shortened, lawyers involved in the recount wondered what would happen if the two candidates tied.
It was a good question. It had no good answer.
"It's a do-over of some sort," said Richard A. Forsten, a Wilmington lawyer who is counsel to the state Republican Party and participated in the recount.
But how? A tie in a county race in Nevada was settled this year by a high-card draw with the winner picking a queen of clubs and the loser a seven of diamonds, but that is Nevada. In this state there is enough squeamishness about gambling that the official name of those garish slots at the race tracks is a tepid "video lottery machine."
So what should be done for a deadlock in Sussex County? A race around The Circle in Georgetown? A bout of Punkin' Chunkin'?
Delaware election law is frustratingly vague. It says a tie vote is to be considered a vacancy in office, but then the law goes silent.
Furthermore, that provision applies only to elections for the General Assembly and the three counties. There is no word at all in state law on ties for governor or other statewide offices or for the Congress or for president, although the lawyers in the Sussex County recount figured the odds of a draw in a statewide election, with hundreds of thousands of votes cast, were remote. Still . . .
"There is no solution," said Dennis L. Schrader, a Democratic lawyer from Georgetown and past Delaware State Bar Association president who worked on the recount.
"That's a glaring oversight in state law," said Bruce A. Rogers, a Republican lawyer from Georgetown and former Sussex County Republican chairman also involved in the vote count.
If the lawyers for the Rogers-Bennett race could not figure it out, probably no one could. Among their members were veterans of two famous recounts in Delaware politics.
One of those historic recounts was pure Sussex County. In 1974 another County Council race also came down to three votes that resulted in W. Howard Workman, the Democratic challenger, being declared the winner over William B. Chandler Jr., the Republican incumbent. If Chandler's name sounds familiar today, it is because his son William III, who was then a law student, is the chancellor, the chief judge of the Court of Chancery.
The future chancellor was in the courthouse to watch that recount. His father was represented by William Swain Lee, the ex-judge defeated last week as the Republican gubernatorial candidate, but in those days Lee was a lawyer who was the Sussex County Republican chairman. Lee was assisted in the recount by a junior lawyer in his firm -- Dennis Schrader, who was a Democrat then as now but knew where he got his paycheck.
Lee's Democratic counterpart in 1974 was Eugene H. Bayard. Today Bayard and Schrader are partners at Wilson Halbrook & Bayard, so this time they were on the same side, joining together for this latest recount.
For their assistant Bayard and Schrader turned to a new lawyer at their office -- Robert H. Robinson Jr. Like the senior attorneys, Robinson is a Democrat, but he also happens to be associated with a Republican candidate from another storied recount.
Robinson's mother is Battle R. Robinson, who came out on the short end of a 1984 recount for lieutenant governor against Democrat S.B. Woo. The Election Night returns had Woo ahead by 514 votes out of almost 242,000 cast, a lead that dwindled to 429 votes but still left him the winner. Battle Robinson went on to be a Family Court judge, since retired.
Sometime after Battle Robinson's defeat, she delivered a classic insight into politics, saying, "Men take part in competitive sports, and they know how it feels to lose, but on the whole we women are shielded from that experience . . . except for beauty contests, of course. But then you cry when you win. In politics, you don't cry at all."
Not that the lawyers involved today could have forgotten those earlier recounts, but they were treated to a reminder, anyway. At one point outside the courthouse, they saw Chancellor Chandler out for a run. As he churned by them like the ghost of recounts past, he chanted, "Chandler, Workman! Chandler, Workman!"
None of that history helps with what to do in the case of tie votes, however. Even regarded as vacancies, different tie votes would lead to a hodgepodge of different results.
In the legislature, for example, vacancies are filled by special elections. The political parties decide on the candidates, so there is no guarantee for the opponents who fought to a draw that they would be on the ballot, although it certainly would be likely.
Vacancies for a number of county offices are filled by gubernatorial appointment -- which is what happened earlier this year when Gov. Ruth Ann Minner named new clerks of the peace in Sussex County and Kent County because of death. Minner replaced both with fellow Democrats, even though the Sussex County clerk was a Republican.
In the case of Sussex County Council, the law covering vacancies is as murky as the law covering tie votes. It says vacancies are to be filled by a majority vote of the remaining council members, who must select someone from the same political party as the previous occupant. But if there is no occupant because of a tie, what party would that be?
If the county fails to fill the vacancy, then there is supposed to be a special election. The lawyers figured that is ultimately the way a tie would be decided, at least for a council seat, although no one knows for sure.
As Bruce Rogers said, "I think I'd rather do it that way than be low man on a deck of cards."