If there's a tie vote in a Tennessee single-county election, can a runoff replace the county commission's deciding vote?

Subject

Opinion No. 12-62, Resolving Tie Votes for Elections in Single County or Civil Districts, June 7, 2012

Plain-English summary

Senator Ken Yager asked the Tennessee AG two questions. First, if an election for a single-county or civil-district office ends in a tie, can the county commission call for a runoff between the tied candidates instead of casting a deciding vote? Second, if not, is the commission's deciding vote the only option?

The AG said no to the first and yes to the second. Tenn. Code Ann. § 2-8-111(1) provides that for offices filled by votes of a single county or civil district, "the county legislative body shall cast the deciding vote." The AG read this as exclusive. A commission cannot fulfill that statutory duty by punting the decision back to voters via a runoff. The legislature explicitly authorized municipal legislative bodies to choose between casting the deciding vote or calling for a runoff in § 2-8-111(2), but did not do the same for counties. Under Tennessee's common-law rule, runoff elections cannot be held without express statutory authority (State ex rel. Thompson v. Carr).

Currency note

This opinion was issued in 2012. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Historical background and statutory framework

Constitutional authority

Tenn. Const. art. VII, § 4 provides: "The election of all officers, and the filing of all vacancies not otherwise directed or provided by this Constitution shall be made in such manner as the Legislature shall direct." So the General Assembly has the power to set the rules for resolving tie votes.

The tie-vote statute

Tenn. Code Ann. § 2-8-111(1) provides:

If there is a tie vote between two or more persons having the highest number of votes for offices filled by the votes of a single county or civil district, then the county legislative body shall cast the deciding vote.

Section 2-8-111(2) provides for municipal offices and allows the municipal legislative body to choose between casting the deciding vote or calling for a runoff.

Why "deciding vote" excludes a runoff

The AG opinion (and earlier Op. Tenn. Att'y Gen. 96-150) reasoned from the ordinary meaning of "decide": to bring a matter to a conclusion or resolution. A commission voting to hold a runoff is doing the opposite, shifting responsibility back to the voters rather than concluding the question itself. The opinion notes the contrasting structure of subsection (2), which gives municipalities a runoff option that subsection (1) withholds from counties.

Default rule against unauthorized runoffs

Under Tennessee's common law, "the right to hold an election does not exist absent an express grant of power by the legislature" (State ex rel. Thompson v. Carr (Tenn. 1932)). The AG opinion treats that rule as reinforcing the textual reading: the county commission has the deciding-vote power expressly granted by § 2-8-111(1), but no statutory authority to call for a runoff.

The 96-150 opinion specifically

The earlier opinion addressed a tied election for a county school board seat. The AG concluded the county commission could not call for a runoff. That opinion reasoned that the deciding-vote language "leaves no room for forced or subtle construction" and that the legislature granted municipal legislative bodies an explicit choice, but did not extend the same choice to counties.

Common questions

Our county commission has a tied county-office election. What do we do?

According to this opinion, the commission must cast the deciding vote itself under § 2-8-111(1). It cannot call for a runoff. Confirm current statutory text and any later AG opinions before acting.

What if the county commission deadlocks too?

The opinion did not address that scenario. Subsection (1) directs that the body "shall cast the deciding vote." If the body cannot agree, the matter may need to go to election commission or to court for resolution. That gap is not addressed in this opinion.

What about a tied election for a municipal office (city council, mayor)?

Tenn. Code Ann. § 2-8-111(2) gives the municipal legislative body the option to either cast the deciding vote or call for a runoff. That choice exists only for municipalities under the statute analyzed in this opinion.

Does this apply to school board seats?

The 1996 opinion (Op. 96-150) cited here specifically addressed county school boards and concluded subsection (1) governs them. School board seats elected from civil districts within a county fall within the "single county or civil district" provision.

What if I lost a tied election and the commission cast its deciding vote against me?

Subsection (1) gives the commission the deciding-vote authority by statute. Whether you have an election contest or other legal remedy depends on the specific facts. Consult a Tennessee election lawyer.

Does the deciding-vote requirement apply to multi-county or statewide elections?

No. Subsection (1) is specifically for offices filled by the votes of a single county or civil district. Other types of elections are governed by other provisions.

Citations

• Tenn. Code Ann. § 2-8-111(1) (county legislative body casts deciding vote)
• Tenn. Code Ann. § 2-8-111(2) (municipal body's choice: deciding vote or runoff)
• Tenn. Const. art. VII, § 4 (legislature directs election manner)
• State v. White, 362 S.W.3d 559 (Tenn. 2012)
• State ex rel. Thompson v. Carr, 59 S.W.2d 509 (Tenn. 1932)
• Op. Tenn. Att'y Gen. 96-150 (Dec. 31, 1996)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-062.pdf

Original opinion text

June 7, 2012
Opinion No. 12-62
Resolving Tie Votes for Elections in Single County or Civil Districts

QUESTIONS

1. If there is a tie vote in an election for candidates seeking an office in a single county or civil district, can a run-off election be held between the tied candidates in lieu of the county legislative body casting the deciding vote?

2. If the answer is no, is the county legislative body determining the winner of the election the only available alternative for resolving the tied vote of the electorate?

OPINIONS

1. No.

2. The General Assembly has established that, in the case of a tie vote among candidates seeking an office in a single county or civil district, a vote by the county legislative body to select the winner of the election is the only method whereby a tie vote for such an office may be resolved.

ANALYSIS

Tenn. Code Ann. § 2-8-111(1) expressly provides that if there is a tie vote between two or more persons having the highest number of votes for offices filled by the votes of a single county or civil district, then "the county legislative body shall cast the deciding vote." This statute is unambiguous, and plainly states that tie votes between candidates for a single county or civil district are to be resolved by the county legislative body. See State v. White, 362 S.W.3d 559, 566 (Tenn. 2012) (recognizing the general rule of statutory construction that courts will apply the plain meaning of a statute where the language is clear and unambiguous).

This Office has previously opined that Tenn. Code Ann. § 2-8-111(1) is the exclusive means to determine the winner when an election for a single county or civil district results in a tie vote and that the county legislative body cannot under this statute delegate this responsibility by passing a resolution calling for a run-off election between the tied candidates. Tenn. Att'y Gen. Op. 96-150 (Dec. 31, 1996). As this Office explained in addressing this issue in tied elections for a seat on a county board of education:

The Tennessee Constitution provides at Article VII, § 4 that "[t]he election of all officers, and the filing of all vacancies not otherwise directed or provided by this Constitution shall be made in such manner as the Legislature shall direct." The General Assembly's power to regulate elections includes the power to enact legislation for the purpose of breaking tie votes in elections. The Legislature exercised that power with the enactment of Tenn. Code Ann. § 2-8-111. . . .

. . . .

Members of a county board of education are county officers elected by the people from civil districts of substantially equal population established by the county commission. Accordingly, the method for resolving a tie vote between the two or more persons having the highest number of votes for a district seat on a county school board is governed by subsection (1) of Tenn. Code Ann. § 2-8-111, which mandates that the county legislative body "shall cast the deciding vote."

If there has been a tie vote between the two persons having the highest vote for a seat on the county school board, the county may not cast its "deciding vote" to hold a run-off election. Words of a statute should be taken in their ordinary sense without forced or subtle construction. To "decide" an issue means to bring it to a conclusion or resolution. If the members of the county legislative body were to cast their "deciding vote" in case of a tie vote by putting the matter to a run-off election, they would not be deciding the tie. Rather, they would be doing the opposite – they would be shifting responsibility for decision to the voters, instead of bringing the matter to a conclusion themselves. They would not be casting "the deciding vote" for the office as required by Tenn. Code Ann. § 2-8-111(1); the deciding vote would be the one the voters would make in the run-off.

Although the Legislature has granted municipal legislative bodies the power to choose between casting the deciding vote, or calling for a run-off election in the case of a tie vote for a municipal office, Tenn. Code Ann. § 2-8-111(2), the Legislature has not granted that power to counties for county offices.

The county legislative body may not be [sic] resolution call for a run-off election. The right to hold an election does not exist absent an express grant of power by the legislature. The General Assembly has not given the county legislative body the right to hold an election for such a purpose.

Id. at 1-2 (footnotes omitted).

This Office's conclusion is in accord with the common law rule and the rule in Tennessee that run-off elections cannot be held unless the law specifically provides for them. See State ex rel. Thompson v. Carr, 166 Tenn. 58, 59 S.W.2d 509 (1932).

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

JANET M. KLEINFELTER
Deputy Attorney General

Requested by:
The Honorable Ken Yager
State Senator
6 Legislative Plaza
Nashville, TN 37243-0212