Tolbert: Could Elvis Cause The Only Statewide Runoff? (UPDATED)

Polls continue to trickle in every few days on the two big races in Arkansas – U.S. Senate and Governor.  Enough are coming in now that we are seeing a steady trend. In the Senate race, Tom Cotton steadily has a small lead of a couple points over Mark Pryor.  In the Governor’s race, Asa Hutchinson has steadily held a slightly larger lead usually with Asa polling a point or two higher than Cotton, and Mike Ross a point or two lower than Pryor for a split of about five points in Asa’s favor.

But another trend has also developed.  In these tight races, no candidate has broken the 50% mark. Most candidates hover in the mid-40’s. A poll out Tuesday from Public Policy Polling and one Wednesday from USA Today showed that not only is this the case, but third party candidates are polling between 5 to 7 percent. This is true not only at the top of the ticket, but down the ballot in races where the Libertarian Party has fielded a candidate for every constitutional and federal race.

This sets up a scenario where it is possible – perhaps even likely – that no one will receive 50% in some of these tight races. And as the negative ads drone on from both sides, some voters could express their displeasure by checking the box of the third party candidate as a protest vote against both major parties.

So what happens if no one gets 50%? According to the Secretary of State’s office, the winner will be that candidate with the most votes…usually.

“The person with the most votes wins,” said Secretary of State’s office spokesperson Laura Labay when asked about the federal races. “In cases of a three-way or four-way race (such as U.S. Senate and U.S. Congress District 1), there is not a 50%+1 threshold.”

The law on this is ACA 7-5-703(b), which says that the Governor will declare the winner to be “the person having the greatest number of legal votes to be duly elected to represent this state in the Senate or House of Representatives of the United States Congress.”

However, a different law refers to the winners of the state constitutional offices. ACA 7-5-705 (b) states that “the person having the greatest number of legal votes for each of the respective offices shall be declared duly elected,” but there are a couple of quirks.

First, in the highly unlikely event of a tie, the winner would be selected by a majority vote of a joint meeting of both houses of the Arkansas General Assembly.  Although this would certainly be interesting for us political nerds, it has never happened.

Secondly, ACA 7-5-705 (a) lists all of the constitutional offices except one – the state land commissioner.

“Land Commissioner is not listed in (in ACA 7-5-705(a)), so they theoretically could be subject to a runoff,” pointed out Labay.

But could this actually happen? Maybe.

The PPP poll shows Republican incumbent John Thurston up 5 points – 38% to Democrat Mark Robertson’s 33%. But in the this case, the third party candidate with a familiar name – Libertarian Elvis Presley – is polling 7% of the vote. Presley, an Elvis impersonator from Star City, has run for office before in 2010 and 2012.

If Presley ends up with a greater percentage than the spread between Thurston and Robertson, mathematically no one can reach 50%.

Fortunately, almost all of the races in November other than local county and municipal races, do not have a runoff as we frequently see with with May primary races. But if enough voters get “all shook up” and decide to give their votes to Presley, we could see a statewide runoff for Land Commissioner.  If that were to happen, the runoff would be on November 25 – the Tuesday before Thanksgiving.

UPDATE: It looks like there was confusion from the Secretary of State’s office.

Originally, the office’s spokesperson told me that the Land Commissioner “theoretically could be subject to a runoff” since this office was not listed in ACA 7-5-705.

An email from Max Brantley with the “Suspicious Minds” over at the Arkansas Times points me to another section of the code – ACA 7-5-704 – which deals with the Commissioner of State Lands as well as several judicial and county offices.

According to 7-5-704, the governor shall commission “the persons who have received the greatest number of legal votes” for the offices in this section.

But there is a very slim possibly of the runoff. Section (b) states that a tie would be settled by runoff.

So unless there is a tie, I guess the Elvis forcing a runoff scenario has left the building.