Image by Mass Communication Specialist 2nd Class Brian M. Wilbur licensed under Creative Commons.

The election for the Virginia House of Delegates District 94, and likely control of the entire House of Delegates, will be decided by the drawing of lots next week. That means legislation will be decided not exclusively by voters, but also by lady luck. Similar tie breaker have been used recently in the District as well — but there's a better way.

Is this the best way to decide an election?

Not every state does it this way. While 35 states and the District of Columbia use games of chance to decide the outcome in tied elections, other states call special elections or have ties decided by other elected officials. Each of these methods has flaws.

In 2012, a race for the Mississippi state legislature came down to the drawing of straws. The candidate who won by drawing the longer straw, Bo Eaton, promised to introduce legislation to change the tie-breaker to a special election once he got to the statehouse. “It’s archaic, it’s medieval, and it’s wrong. We need a new election,” Eaton said at the time.

Unfortunately for him, Eaton was a Democrat, and the Republican-controlled legislature voted — despite the vote count and hand of chance — to seat his Republican opponent instead. Nonetheless, he's right that the method is archaic and strikes many people as fair yet wrong.

Special elections aren't much better

Special elections, while handing the decision back to the voters, are expensive and take time during which all residents are disenfranchised. Meanwhile, allowing other government officials to decide the outcome could hand the decision over to people from outside the district. Is there another way?

If we think about who the voters are and whose votes are counted and not counted, we might be able to find a better method. An election ends with voters in one of four categories: (1) those who voted and whose votes were counted, (2) those who voted and whose votes weren't counted because they had a spoilt ballot, (3) those who voted and whose votes weren't counted because they arrived too late and (4) those who didn't vote.

Those in the first category are fully enfranchised in the vote. Those in the second can't be, because there is no way to discern their intent (though, that could be improved). Of the two last categories, most would likely agree that those who voted absentee but were unable to get their ballots in on time have more of a right to be enfranchised than those who didn't vote. A better way to break a tie would rely on these late absentee ballots.

We could do this instead

In Virginia, ballots must arrive by the day of the election to be counted. This means that someone who fills out their ballot and mails it before election day might not have their ballot counted because it got delayed in the mail — or they didn't mail it early enough. This is not the case in every state, as some allow for ballots that arrive as late as 10 days after election day. Regardless, the rules could be changed to use these late arriving ballots to break a tie.

These are the ballots of registered voters who cast ballots where the intent is clear, but whose ballots were not counted due to tardiness. Using them to break ties would recognize that they are discounted below that of other ballots, but are still more credible than luck. In the case of a tie, all ballots that arrived one day late could be opened and counted, and the candidate who got the majority of those votes could be declared the winner. If there's still a tie, go to day two and so on until someone wins. Think of it as overtime.

The likelihood that all late-arriving ballots would be exhausted without a winner is infinitesimal.

Ties are incredibly rare. A 2001 review found only one at the state level over a 21 year period and a curated list on Wikipedia has identified only eight total, including the District 94 race and a primary that would basically determine the winner. Nonetheless, they do happen, and having a quick, cheap method to determine the winner using actual ballots from actual voters seems like a better option than flipping a coin.