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What happens if a Florida congressional primary ends in a tie? That's up to interpretation

 Democratic candidates Sheila Cherfilus-McCormick and Broward Commissioner Dale Holness stand next to each other in room while wearing face masks and name tags. Sheila holds a stack of papers under one arm
Daniel Rivero
/
WLRN News
Democratic candidates Sheila Cherfilus-McCormick and Broward Commissioner Dale Holness were gathered together last Friday during a machine and hand recount of votes at the Broward Supervisor of Elections Office in Lauderhill.

Only five votes currently separate the candidates for the Democratic primary for Florida's 20th congressional district, with more still to be counted. Even election attorneys don't agree about what happens in the case of a tie.

With a mere five votes separating the candidates in the Democratic primary election for Florida’s 20th congressional district, a rare question has sprung up: What if they tie?

The razor-thin spread currently has political newcomer Sheila Cherfilus-McCormick leading Broward Commissioner Dale Holness after a machine and hand recount in Broward and Palm Beach counties.

But on Friday, a yet-to-be-known number of ballots cast by overseas voters will be counted, along with a small number of mail-in ballots that were previously turned down due to issues with the wrong voter signing the envelope and signature mismatches.

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In Broward, the county canvassing board allowed three of those votes to be counted. Holness holds a strong advantage in Broward, leaving the potential for a last minute comeback.

Or a potential tie.

For a tied election under Florida law, candidates would have to “draw lots to determine who shall be elected to the office.”

What that exactly means, or even if it applies to a federal congressional primary is up for debate — even among attorneys who specialize in election law.

Drawing lots as an idea harkens back to practices in Biblical times and the Middle Ages, usually as a way to settle intractable arguments. As Psalms 16:33 reads: “We may throw the dice, but the Lord determines how they fall.”

In the New Testament, Roman soldiers drew lots to determine who would get to take home the tunic of Jesus after his crucifixion.

Essentially, drawing lots is an undefined game of chance. In the modern world it could mean any number of things. A federal judge in the Middle District of Florida famously ordered two parties in a stubborn, non-election dispute, to play a game of rock, paper, scissors to settle the matter in 2006. That was one form of drawing lots.

The odds of a game of rock, paper, scissors being ordered to settle a tied election are pretty low, said J.C. Planas, a Miami-based elections attorney.

“It will probably be flipping a coin or something like that,” Planas said.

Planas has worked on and followed countless recount elections, he said, but none have come down to actually playing a game of chance.

Some, though, have been fairly close.

Republicans Carlos Valdes and Miguel De Grandy battled over a state house seat in a primary election in 1988 that came down to a single vote, he remembered. A 2014 Republican primary in Jacksonville saw the winner taking the cake with only a two-vote spread. And more recently in 2020, an infamous election shrouded in illegal activity for Florida State Senate District 37 came down to a mere 34 votes.

A Virginia House of Delegates election in 2017 was tied, resulting in state officials drawing random candidate names out of a bowl. That resulted in a Republican victory, enabling the Republican party to maintain control over the Virginia House of Delegates.

Two issues make the potential of a tie in Florida’s 20th congressional district Democratic primary a nightmare and a very difficult question to answer, said Miami-based election attorney David Custin.

The first is that it is a federal election, and generally, Florida election laws do not have jurisdiction over federal races, he argued under his interpretation.

The second is that it’s a primary, not the general election.

The state law that calls for drawing lots only mentions "general elections" and "special elections."

The Democratic primary for Florida's 20th congressional district is one part of a special election to fill the seat left vacant by the death of Congressman Alcee Hastings earlier this year. But it is the primary election, not the special election itself.

“If it’s a tie, the executive committees for the local Florida Democratic Party might have a say,” Custin said.

Even this presents a problem. Holness won the highest share of votes in Broward County. In Palm Beach County, Cherfilus-McCormick held a strong advantage.

“In that dynamic literally you have a party food fight over which county committee gets to place their candidate for the general election,” he said. “Do you speak Spanish? Es un despingue.”

In other words: a complete, total, utter, unrelenting mess.

Tallahassee-based elections attorney Natalie Kato disagrees. She said a tie would be decided by a relatively straightforward game of chance, like both sides drawing cards from a full deck “and whoever gets the highest card is the winner.”

Whether an ace would count as a high or a low card? That might be up to interpretation, too.

But Kato said in her interpretation of state election law, the Florida Division of Elections does have jurisdiction to settle a tie in a federal congressional primary.

“They have jurisdiction over elections in the state, even for something like president, for example,” she said. “But ultimately if you’re dealing with something like president, we have national standards that talk about the way you select electors. What we’re talking about here — yes it’s a federal race, but it is a race that is wholly conducted in the state of Florida, and thus it is subject to the Florida election code.”

“If I was an elections attorney who was engaged in this race I would probably meet with the other attorneys and have us all agree as to what would be a fair type of lot. Unless the Division of Elections gave us direction,” she said.

A request for comment from the Florida Division of Elections as to whether the state statutes apply, or whether the state has a go-to version of “drawing lots” was not returned.

Daniel Rivero is a reporter and producer for WLRN, covering Latino and criminal justice issues. Before joining the team, he was an investigative reporter and producer on the television series "The Naked Truth," and a digital reporter for Fusion.