The Kyle Report is an opinion column written by Kyle resident, Pete Oppel, that covers city leadership issues. You can follow The Kyle Report here on the Kyle Life or by subscribing to Mr. Oppel’s blog, The Kyle TX Report.
Let me state at the outset, I don’t expect this Place 1 City Council election between incumbent Diane Hervol and business owner Travis Mitchell to end in a tie. A recount of yesterday’s votes will be conducted and I have never, ever, in my lifetime seen a recount in which the results weren’t altered. Most of those times those alternations were not large enough to affect the outcome of the election, but, obviously, in the case of a tie vote, any alteration most likely would change the results.
But what happens in the unlikely event the two candidates have the same number of votes even after the recount? I’ve heard several people express concern over the fact that the City’s charter doesn’t address that situation.
I’m here to tell you that it does. Section 5.11 of the charter reads: “If no candidate for an elective office receives a majority of the votes cast for that position in the regular or special election, a run-off shall be held between the two (2) candidates who received the greatest number of votes.” That section is definitely applicable here. Obviously neither received a majority and the two candidates who tied “received the greatest number of votes” even though they were the only two candidates in the race. The charter does not specify how many candidates are required in a council election to trigger these provisions so, ergo, they must apply in all “regular or special elections.”
The charter even addresses the prospect of another tie vote after the runoff. Later in that same section, the charter says “…if the run-off results in a tie vote, the tie shall be broken in a manner that is not inconsistent with the Texas Election Code.”
And section 2.002 of the Texas Election Code says basically the same thing, only it is more direct: “…in an election requiring a plurality vote (which City Council elections do require), if two or more candidates for the same office tie for the number of votes required to be elected, a second election to fill the office shall be held.” That election must be ordered by the City Council no later than five days after the recount of the first election is completed and the election must be held no earlier than 20 days and no later than 30 days after the completion of the recount.
There’s a way of avoiding another election, however, although I seriously doubt an agreement could be reached between Hervol and Mitchell simply because each of them have already invested so much resources into their respective campaigns. However, if one or the other candidate suddenly decided not to invest additional resources, who knows what might happen. But one of two things would have to occur to avoid that election prescribed by the Texas Election Code. First scenario: One of the two candidates would have file a written statement withdrawing from the race. Second scenario: “The tying candidates may agree to cast lots to resolve the tie,” according to the Texas Election Code. The code specifies Mayor Todd Webster would be in charge of the lot-casting process. I also find it difficult to believe that after investing so much, the two candidates would be willing to let their respective fates be decided by the whims of a flip of a coin or the drawing of straws.
But whimsy does occur every now and then.