Philadelphia's council votes to decide election

Jeremy Styron-News-Herald
After a rare three-way tie threw a local election into uncertainty, Philadelphia City Council met earlier this week to cast the deciding vote.

The current council voted challenger Lynne Marlow and incumbent Michael Shane McGinnis onto the board.

Marlow, McGinnis and Laura Standridge were previously gridlocked at 73 votes apiece after the unofficial election results were tabulated Nov. 6. Christopher Miller and Jeff Marlow received the most votes.

Philadelphia Mayor Paul Stallings, who lost his bid for a seat on city council, said the board met to determine a winner after consulting with the University of Tennessee Municipal Technical Assistance Service.

"We followed procedure from MTAS and went ahead and broke the tie and moved (that) current council do a vote for the last two seats," Stallings said, noting that legal opinions validating the action were presented at the board meeting.

"We had all the documentation out there to stand behind it," Stallings said. "We showed it to everybody, gave everybody ample opportunity - both the community and citizens - to voice their opinions about it."

Margaret Norris, with MTAS, said she forwarded a couple documents to Philadelphia after some research into the case.

"I did a little bit of legal research and consulted with one of the attorneys here and found an attorney general opinion, actually two of them, that said that it was the existing board that would make the appointment as long as the new board hadn't taken office yet," Norris said.

One legal opinion that MTAS sent to Philadelphia was written in 1986 from the Office of the Attorney General.

"It is our opinion that either the county legislative body in existence at the time of the election that results in a tie vote or the newly elected body would be authorized to cast the deciding vote," according the first opinion, which cites Tennessee Annotated Code 2-8-111 and other sections.

Another opinion from August 2006 addressed the question of whether an incumbent could vote for his or her own seat.

"We think a court would conclude that this statute (2-8-111) authorizes all the members to vote on breaking the tie, including an incumbent member who is one of the candidates," according to the document. "We also think a court would conclude that, under the statute, an incumbent member may vote for himself to break the tie."

City Councilman James Harold said McGinnis opted to abstain from voting.

"Shane actually had a right; he could vote for himself, but he chose not to just to make things right," Harold said.

McGinnis could not be reached for comment.

The Philadelphia City Council decision came four days before the Loudon County Election Commission was scheduled to certify the votes. The commission was set to meet Friday to make it official.

"Lenoir City doesn't swear their's in or do whatever until its certified," Administrator of Elections Susan Harrison said. "Most people don't do nothing until it's certified."

Harrison said, in her view, the election was not decided until after the certification process.

"To me, it's not official yet," she said. "Until we change this report in the computer and make it official, it ain't over. ... We will certify it as a three-way tie."

Stallings said he knew the Election Commission was certifying the final results later in the week.

"That's why the old council had to do the tiebreaker instead of the new council," Stallings said.

While ties in local elections are rare, they happen occasionally. Two candidates for a Brentwood City Commission seat were tied in 2007, with both candidates receiving 1,740 votes. Another tie occurred in Petersburg in 2006.  

"In our case it was determined that we had two options," Brentwood Assistant City Manager Kirk Bednar said. "One was the remaining members of the city commission could vote to select one of the two tied candidates or they could hold a special election, and obviously they chose to have a special election."

Bednar said in some municipalities another election might not be feasible for financial reasons.
"In a smaller city where the cost of an election may be a concern, I could understand they may choose, but in our case our folks felt like that the citizens needed to make that choice, so they held a special election," Bednar said.

Blake Fontenay, spokesman with the Tennessee Secretary of State, said typically a city's charter determines how tie votes are handled. Philadelphia has the same boilerplate charter as more than 60 other municipalities in the state, and it does not address tie votes.

"It's not common," Norris said about local election stalemates. "It does happen, but it's uncommon. There are provisions for the tie vote in various charters, but in their particular charter, it was silent."