This topic is monitored by Moritz Law Professor Daniel Tokaji
The History of Ohio's Automatic Recount Statute
This entry explores the legislative history of Ohio's automatic recount statute, the state's experience over the past 30 years with elections requiring automatic recounts, and the possibility of an automatic recount in this year's November presidential election. Ohio's current statutes are described in Professor Christopher Fairman's entry on Ohio recount procedure. The current text of the statutes will be available soon.
R.C. 3515.011 currently provides for automatic, publicly funded recounts when the margin of victory is very small. Though the statute has been on the books since 1974, small-margin recounts have only been automatic in Ohio since 1984. It is worth examining the process by which the state arrived at the current version of the law.
Before 1974, it was up to the loser in the initial vote count to ask for a recount, R.C. 3515.01. This was done at the financial risk of the losing candidate no matter how close the election appeared (R.C. 3515.03 and 3515.07). In other words, the state would never guarantee to pay for the recount; the state would only pay when the recount caused the official tally to change significantly.
In 1974, the situation changed when Ohio adopted a new statute, R.C. 3515.011, providing that the state would guarantee to pay for a recount in close elections. There were two requirements for this provision to kick in: first, the margin of victory must be within one-half of one percent. Second, the losing candidate must actually request the recount; it would not proceed automatically. However, where the margin of victory was not below one-half percent, losing candidates still could request a recount pursuant to the old provision, taking the risk that they would have to pay for the recount if the vote did not change much.
Here is an example to illustrate the original version of the statute. When the original, official tabulation of votes for president in Ohio in 1976 showed Jimmy Carter winning by 9,333 votes, or 0.23% of the total number of votes cast, a formal recount application was required for a statewide recount to proceed. As it turned out, Ford himself declined to request a recount, according to the recollection of James Baker. See Ken Herman, Election Finality Counts on the Concession, Austin American-Statesman (Texas), Nov. 11, 2000, at A1. But a statewide recount proceeded anyway at the request of 24 of the 25 Electoral College candidates pledged to the incumbent president. Ford Backers Ask Ohio Recount, N.Y. Times, Nov. 24, 1976, at 14. This was the first statewide recount conducted under the statute and only one of two such recounts completed to this day. (As a result, Carter extended his winning margin by an additional 1,783 votes. Historical Election Results, General Election, November 2, 1976, Official Tabulation, at http://www.sos.state.oh.us/sos/results/70/1976/gen.htm.)
In 1979, the statute was amended by H.B. 111: the margin of victory for statewide races necessary to trigger a state-funded recount was lowered to one-quarter of one percent, making it more difficult to invoke. The margin necessary in county, district, and municipal races stayed the same. 1979 Ohio Legis. Serv. 5-55 (Baldwin).
In 1984, the statute was amended again, and small-margin recounts became truly automatic. Thus, when the margin of victory in a statewide race is less than one-quarter of one percent, a state-funded recount occurs automatically, even without the request of the losing candidate. However, the losing candidate can still choose to affirmatively call off the recount process: language was added to R.C. 3515.03 to allow a losing candidate to submit a request in writing to have the automatic recount stopped before it begins. 1984 Ohio Legis. Serv. 5-79 (Baldwin). Furthermore, if the margin of victory is larger than 0.25% in a statewide race, the losing candidate can still apply for a recount, but again under this longstanding provision the state will only pay for the recount if it results in a large enough change in the results of the election.
The only statewide automatic recount in Ohio history followed the 1990 general election. Democrat Lee Fisher defeated Republican Paul Pfeifer for the position of state attorney general by a margin of only 1,234 votes out of 3,360,162 cast, or only 0.037% of the total number of votes cast, making the contest the closest statewide election in Ohio history. Since under Ohio law recounts may only begin once official election results are tabulated and posted, R.C. 3505.35, the process of counting and recounting votes took over six weeks to complete. And although Lee Fisher was sworn in on January 14, 1991, Pfeifer's contest of the election and recount was not completed until the Ohio Supreme Court handed down its decision on March 11, 1991. In re Election of November 6, 1990 for the Office of Attorney General of Ohio, 58 Ohio St. 3d 103, 569 N.E.2d 447 (1991).
Today, automatic recounts are quite common in Ohio, with each primary, general and special election generating at least several races within the 0.5% margin. Recently, a five-county recount reversed the original result of the Republican primary for southern Ohio's 14th Senate District. Jean Schmidt appeared to have won by 62 votes out of the 33,760 cast, but the recount, completed 38 days after the election was held, awarded the nomination to Tom Niehaus, who prevailed by 22 votes, or a margin of 0.06%.
Ohio's experience with automatic recounts naturally raises the question: is Ohio prepared for the possibility of a recount in the November presidential election? The electoral college will meet December 13th this year, or 41 days after Election Day, and the "safe harbor" deadline for resolving any controversies over the vote count is six days earlier, December 7th. (Failure to meet this deadline would mean that Congress gets to choose between competing sets of electoral votes sent from Ohio.) Given past experience, it is not certain that the statutory recount process could be completed by this deadline. In addition, R.C. 3515.09 entitles the defeated candidate to file a contest of election up to ten days after the recount is completed, and R.C. 3515.10 dictates that the contest will be heard by a court no sooner than 15 days after it as filed, creating even more delay and uncertainty. Thus, with two months to go until Election Day, this important question about Ohio's ability to conduct timely recounts in a presidential election remains unanswered.
[Posted September 7, 2004]