Flip of a coin decides New Mexico judicial contest

Debra Cassens Weiss had a post Thursday on ABA Journal Law News Now about a New Mexico judicial primary that ended in a tie. The recount process confirmed the tie so the race between the deadlocked Democratic opponents was decided, Weiss wrote, by the flip of a coin.

In the event, the incumbent judge, Robert Baca, lost the coin flip to his challenger, Kenneth Howard Jr. (Judges in New Mexico apparently have to run for re-election; that's a lot different from the retention process we have in Illinois.) Howard is the presumptive winner of the judicial seat; he and Baca were Democrats and no Republican filed for the seat. (There are also some similarities between New Mexico practice and the way we do things here in County Cook.)

Flipping a coin may seem a trivial way to conclude a hard-fought campaign, but when the vote totals are really tied, what else is there to do? Coin flipping is not specified in the Illinois Electoral Code, but §23-27 of the Electoral Code (10 ILCS 5/23-27) provides, "If it appears that two or more persons have, or would have had if the legal ballots cast or intended to be cast for them had been counted, the highest and an equal number of votes for the same office, the persons receiving such votes shall decide by lot, in such manner as the court shall direct, which of them shall be declared duly elected; and the judgment shall be entered accordingly."

In other words, in case of a tie, under Illinois law, the judge hearing the election contest can decide the winner. See, Huber v. Reznick, 107 Ill.App.3d 529 (5th Dist. 1982) (in this case, the court directed the circuit clerk to do the coin flipping).