In event of statewide tie, Legislature would pick new governor

The first recount did more than leave the Washington governor’s race closer.

It also raised the possibility – an extremely remote one, to be sure – that the race could end up tied and create even more unprecedented political theater.

Before the recount, the total number of votes for Republican Dino Rossi and Democrat Christine Gregoire added up to an odd number (2,742,567, for those keeping score at home). Odd numbers can’t split evenly, but the combined total from the statewide machine recount is an evenly dividable 2,744,926.

Rossi currently leads by 42 votes, although at one point in the first recount, the difference was as small as nine.

If the final recount were to leave Rossi and Gregoire with the exact same number of votes, the winner would be decided by “a joint vote” of the Legislature when it convenes in January. The state’s founding fathers spelled out that procedure in Article III, Section 4 of the state constitution, for a tie in any statewide executive office.

“It’s a very obscure piece of election trivia,” state Elections Supervisor Nick Handy said.

Obscure, in part, because it has never happened in Washington.

That provision was apparently borrowed from the Oregon constitution by W. Lair Hill, who wrote a draft constitution for delegates to the Washington constitutional convention in 1889, said attorney Hugh Spitzer, an expert on the state constitution. Oregon, which has had the same provision since it became a state in 1857, got the idea from Indiana, which has had it in place since 1816. Idaho has the same provision in its constitution, approved in 1890.

But elections officials in Idaho, Oregon and Indiana said they know of no instance where a statewide race ended in a tie, so as far as anyone knows, the procedure has never been used.

The Washington Constitution does not define “joint vote,” Spitzer added.

“It doesn’t happen on a regular basis,” he said. “I think they would all come together” and each legislator would vote.

Such a provision seems to make sense, Spitzer added, because the newly elected Legislature is arguably closest to the electorate’s wishes.

A joint vote of the Legislature would give the edge to Gregoire, because both chambers will have Democratic majorities. The Senate will have 26 Democrats and 23 Republicans, the House of Representatives will have 55 Democrats and 43 Republicans.

If all legislators voted along party lines, Gregoire would outpoll Rossi 81 to 67. If eight Democrats could be persuaded to vote for Rossi, they could tie again. The state constitution doesn’t say what happens then.

Calculating the odds of a tie in the impending recount is a bit difficult. Christian Hansen, the head of Eastern Washington University’s math department, notes that probability isn’t really involved, because the outcome of the race is determined by voter’s political decisions, not random choice.

Counties around the state also use different voting systems, which have different error rates, so the final number of votes could change because of undercounting that is caught in the recount. And you’d have to assume the errors didn’t favor one candidate over the other.

But given all those qualifications, Hansen said one could calculate the probability of Gregoire and Rossi getting an even split of the known 2,744,926 votes, similar to the odds of flipping a coin that many times and getting an equal number of heads and tails.

Using a formula for probability, Hansen calculated it to be 1 in 2,000. If the final recount results in an odd number, the chances of a tie, of course, are still zero.