LAS CRUCES — Flipping a coin? Drawing a playing card? Pulling straws?

New Mexico's rule for breaking a tie vote in an election using chance seems, well, odd on its face. But it could be the deciding factor in the tied state House District 37 race.

Democrat Joanne Ferrary, known for her anti-DWI advocacy, and incumbent Republican Terry McMillan, a Las Cruces surgeon, split the vote down the middle out of more than 12,000 ballots cast.

Should the tie remain — an impending recount could change the results — state law calls for the race to be decided "by lot."

But the exact method to be used would be in the hands of a five-person panel made up of McMillan, Ferrary, county Democratic Party Chairwoman Christy French, county GOP Chairman Russell Allen and a district court judge, according to the provisions of the law.

McMillan's preference?

"I think a single hand of five-card stud would be good," he said. "You deal out five cards, and there's going to be a winner."

The statute specifies that a majority of the panel would decide.

Ferrary on Wednesday said she was familiar with the law, but she's not sure yet which method she'd want to settle the race outcome.

"I don't know if I'd have any preference on that," she said.

Ferrary and McMillan each received 6,217 votes, said Doña Ana County Clerk Lynn Ellins on Wednesday. Those results are subject to an automatic recount.

If the race comes down to a tie-breaking method of chance, that event will be public, Ellins said.


Other contests?

Asked how they think the race should be decided, Sun-News readers' answers ranged from the highly comedic to the potentially viable.

Said Braden Tidwell, via Facebook: "Arm wrestle? On a more serious note, a local forum debate within district, and vote from there."

Continued Tidwell: "Good luck; may the best man or woman win!"

Reader Craig Huey suggested a competition more gastro-intestinally oriented: "The only way anything should be settled in New Mexico: (a) chile-eating contest!"

The game "rock, paper, scissors" or "ro sham bo" was a popular recommendation. Though that's a game partly of chance, it's unclear whether it would qualify.

The New Mexico Secretary of State's office couldn't be reached for comment Wednesday.

Russell Allen, county GOP chairman, said he could imagine a dilemma in the case of a coin toss decision: Which candidate would get to call "heads" or "tails?"

"My personal preference would be draw a card and the highest card wins, with ace being high," he said.

A re-vote?

Some residents said a re-vote should take place. One person said credentials should factor into the tie-breaker.

Allen opposed the idea of holding another election for District 37.

"As a Republican and a conservative, there's no way I'd want to do a re-vote because it costs too much money," he said.

Relying upon chance, Allen said, is "just as good a way as any. I think it's about as fair as it could possibly be."

Since state law indicates that chance should be used, any additional — and possibly more inventive —methods for breaking a future election tie would require action on the part of the state Legislature.

A recount in McMillan and Ferrary's race still must happen, a few weeks from now. If the tied vote still stands after that's complete, the decision by lot must be used, officials said.

Allen said he's doubtful the tie will last last past the recount. It's likely at least a few errors in the original tally will be found, he said.

In March of this year, the village of Hatch relied upon a coin flip to decide the winner of a trustee seat. That was after each received 51 votes in the municipal election. Magistrate Judge Patrick Curran oversaw the coin toss.

A tie-breaking vote left to fate might seem unusual, but such lottery-based decisions have their roots in history, according to the book "The Luck of the Draw: The Role of Lotteries in Decision Making" by Peter Stone.

The ancient democracy of Athens relied heavily upon the "use of random selection to fill political offices," Stone writes.


Results from the Nov. 6 election had been slated to be certified by the Doña Ana County commission on Wednesday, but the meeting was postponed until Friday morning, Ellins said. That's partly because the clerk's office was busy with work related to the Ferrary-McMillan race, he said.

The meeting will happen at 9:30 a.m. Friday at the Doña Ana County Government Center, 845 N. Motel Blvd., Las Cruces.

Diana Alba Soular can be reached at (575) 541-5443; follow her on Twitter @AlbaSoular