arrowSection 5.3 - Recounts and Other Remedies

This topic is monitored by Moritz Law Professor Daniel Tokaji

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Relevant Ohio Revised Code Statutes

§ 3515.01 Persons eligible to apply for recount

Any person for whom votes were cast in a primary election for nomination as a candidate for election to an office who was not declared nominated may file with the board of elections of a county a written application for a recount of the votes cast at such primary election in any precinct in such county for all persons for whom votes were cast in such precinct for such nomination.

Any person who was a candidate at a general, special, or primary election for election to an office or position who was not declared elected may file with the board of a county a written application for a recount of the votes cast at such election in any precinct in such county for all candidates for election to such office or position.

Any group of five or more qualified electors may file with the board of a county a written application for a recount of the votes cast at an election in any precinct in such county upon any question or issue, provided that the members of such group shall state in such application either that they voted "Yes" or in favor of such question or issue and that such question or issue was declared defeated or rejected, or that they voted "No" or against such question or issue and that such question or issue was declared carried or adopted. Such group of electors shall, in such application, designate one of the members of the group as chairman, and shall indicate therein the voting residence of each member of such group. In all such applications the person designated as chairman is the applicant for the purposes of sections 3515.01 to 3515.07 of the Revised Code, and all notices required by section 3515.03 of the Revised Code to be given to an applicant for a recount shall be given to such person.

In the recount of absentee ballots that are tallied by county instead of by precinct, as provided in section 3509.06 of the Revised Code, the county shall be considered a separate precinct for purposes of recounting such absentee ballots.

§ 3515.011 Recount when winning margin less than one-half per cent of total vote

If the number of votes cast in any county or municipal election for the declared winning nominee, candidate, question, or issue does not exceed the number of votes cast for the declared defeated nominee, candidate, question, or issue by a margin of one-half of one per cent or more of the total vote, the appropriate board of elections shall order a recount which shall be conducted as provided in sections 3515.04 and 3515.05 of the Revised Code.

If the number of votes cast in any district election for the declared winning nominee, candidate, question, or issue does not exceed the number of votes cast for the declared defeated nominee, candidate, question, or issue by a margin of one-half of one per cent or more of the total vote, the secretary of state shall order a recount which shall be conducted as provided in sections 3515.04 and 3515.05 of the Revised Code.

If the number of votes cast in any statewide election for the declared winning nominee, candidate, question, or issue does not exceed the number of votes cast for the declared defeated nominee, candidate, question, or issue by a margin of one-fourth of one per cent or more of the total vote, the secretary of state shall order a recount which shall be conducted as provided in sections 3515.04 and 3515.05 of the Revised Code.

§ 3515.02 Filing of application for recount

If the nomination or the candidacy for election, or the question or issue, concerning which a recount is applied for was submitted only to electors within a county, the application for recount shall be filed within five days after the day upon which the board of elections of such county declares the results of such election.

If the nomination or the candidacy for election, or the question or issue, concerning which a recount is applied for was submitted only to electors of a district comprised of more than one county but less than all of the counties of the state, the application shall be filed within five days after the day upon which the board of the most populous county in such district declares the results of such election.

If the nomination or the candidacy for election, or the question or issue, concerning which a recount is applied for was submitted to electors throughout the entire state, the application shall be filed within five days after the day upon which the secretary of state declares the results of such election.

§ 3515.03 Recount; deposit required; notice; witnesses; losing candidate may stop recount

Each application for recount shall separately list each precinct as to which a recount of the votes therein is requested, and the person filing an application shall at the same time deposit with the board of elections ten dollars in currency, bank money order, bank cashier's check, or certified check for each precinct so listed in such application as security for the payment of charges for making the recount therein applied for, which charges shall be fixed by the board as provided in section 3515.07 of the Revised Code.

Upon the filing of an application, or upon declaration by the board or secretary of state that the number of votes cast in any election for the declared winning nominee, candidate, question, or issue does not exceed the number of votes cast for the defeated nominee, candidate, question, or issue, by the margins set forth in section 3515.011 of the Revised Code, the board shall promptly fix the time, method, and the place at which the recount will be made, which time shall be not later than ten days after the day upon which such application is filed or such declaration is made. If the recount involves a candidate for election to an office comprising more than one county, the director of the board shall promptly mail notice of the time and place for such recount to the board of the most populous county of the district. If the contest involves a state office, the director shall promptly notify the secretary of state of the filing for such recount.

The director of the board shall mail notice of the time and place so fixed to any applicant and to each person for whom votes were cast for such nomination or election. Such notice shall be mailed by certified mail not later than the fifth day before the day fixed for the commencement of the recount. Persons entitled to have such notice mailed to them may waive their right to have it mailed by filing with the director a written waiver to that effect. Each person entitled to receive such notice may attend and witness the recount and may have any person whom the candidate designates attend and witness the recount. At any time after a winning nominee or candidate is declared but before the time for a recount pursuant to section 3515.011 of the Revised Code commences, the declared losing nominee or candidate may file with the board a written request to stop the recount from commencing. In the case of more than one declared losing candidate or nominee, each of whom is entitled to a recount pursuant to section 3515.011 of the Revised Code, each such declared losing candidate or nominee must file with the board such written request to stop the recount from commencing. The board shall grant such request and shall not commence the recount.

In the case of a recount of votes cast upon a question or issue, any group of five or more qualified electors, who voted upon such question or issue and whose votes were in opposition to the votes of the members of the group of electors who applied for such recount, or for whom such recount was required by section 3515.011 of the Revised Code, may file with the board a written statement to that effect, shall designate therein one of their number as chairman of such group and may appoint an attorney at law as their legal counsel, and may request that the persons so designated be permitted to attend and witness the recount. Thereupon the persons so designated may attend and witness the recount.

§ 3515.03 Recount; deposit required; notice; witnesses; losing candidate may stop recount (Effective 5/2/06)

Each application for recount shall separately list each precinct as to which a recount of the votes is requested, and the person filing the application shall, at the same time, deposit with the board of elections fifty dollars in currency, bank money order, bank cashier's check, or certified check for each precinct so listed as security for the payment of charges for making the recount applied for, which charges shall be fixed by the board as provided in section 3515.07 of the Revised Code.


Upon the filing of an application, or upon declaration by the board or secretary of state that the number of votes cast in any election for the declared winning nominee, candidate, question, or issue does not exceed the number of votes cast for the defeated nominee, candidate, question, or issue, by the margins set forth in section 3515.011 of the Revised Code, the board shall promptly fix the time, method, and the place at which the recount will be made, which time shall be not later than ten days after the day upon which such application is filed or such declaration is made. If the recount involves a candidate for election to an office comprising more than one county, the director of the board shall promptly mail notice of the time and place for such recount to the board of the most populous county of the district. If the contest involves a state office, the director shall promptly notify the secretary of state of the filing for such recount.


The director of the board shall mail notice of the time and place so fixed to any applicant and to each person for whom votes were cast for such nomination or election. Such notice shall be mailed by certified mail not later than the fifth day before the day fixed for the commencement of the recount. Persons entitled to have such notice mailed to them may waive their right to have it mailed by filing with the director a written waiver to that effect. Each person entitled to receive such notice may attend and observe the recount and may have any person whom the candidate designates attend and observe the recount. At any time after a winning nominee or candidate is declared but before the time for a recount pursuant to section 3515.011 of the Revised Code commences, the declared losing nominee or candidate may file with the board a written request to stop the recount from commencing. In the case of more than one declared losing candidate or nominee, each of whom is entitled to a recount pursuant to section 3515.011 of the Revised Code, each such declared losing candidate or nominee must file with the board such written request to stop the recount from commencing. The board shall grant such request and shall not commence the recount.


In the case of a recount of votes cast upon a question or issue, any group of five or more qualified electors, who voted upon such question or issue and whose votes were in opposition to the votes of the members of the group of electors who applied for the recount, or for whom the recount was required by section 3515.011 of the Revised Code, may file with the board a written statement to that effect, shall designate in it one of their number as chairperson of such group, may appoint an attorney at law as their legal counsel, and may request that the persons so designated be permitted to attend and observe the recount. Thereupon, the persons so designated may attend and observe the recount.

§ 3515.04 Procedure for recount; stopping recount

At the time and place fixed for making a recount, the board of elections, in the presence of all witnesses who may be in attendance, shall open the sealed containers containing the ballots to be recounted, and shall recount them. If a county used punch card ballots and if a chad is attached to a punch card ballot by three or four corners, the voter shall be deemed by the board not to have recorded a candidate, question, or issue choice at the particular position on the ballot, and a vote shall not be counted at that particular position on the ballot in the recount. Ballots shall be handled only by the members of the board or by the director or other employees of the board. Witnesses shall be permitted to see the ballots, but they shall not be permitted to touch them, and the board shall not permit the counting or tabulation of votes shown on the ballots for any nomination, or for election to any office or position, or upon any question or issue, other than the votes shown on such ballots for the nomination, election, question, or issue concerning which a recount of ballots was applied for.

At any time before the ballots from all of the precincts listed in an application for the recount or involved in a recount pursuant to section 3515.011 of the Revised Code have been recounted, the applicant or declared losing candidate or nominee or each of the declared losing candidates or nominees entitled to file a request prior to the commencement of a recount, as provided in section 3515.03 of the Revised Code, may file with the board a written request to stop the recount and not recount the ballots from the precincts so listed that have not been recounted prior to the time of the request. If, upon the request, the board finds that results of the votes in the precincts recounted, if substituted for the results of the votes in those precincts as shown in the abstract of the votes in those precincts, would not cause the applicant, if a person for whom votes were cast for nomination or election, to be declared nominated or elected or if an election upon a question or issue would not cause a result contrary to the result as declared prior to such recount, it shall grant the request and shall not recount the ballots of the precincts listed in the application for recount that have not been recounted prior to that time. If the board finds otherwise, it shall deny the request and shall continue to recount ballots until the ballots from all of the precincts listed in the application for recount have been recounted; provided that, if the request is denied, it may be renewed from time to time. Upon any such renewal, the board shall consider and act upon the request in the same manner as provided in this section in connection with an original request.

As used in this section, "chad" and "punch card ballot" have the same meanings as in section 3506.16 of the Revised Code.

§ 3515.04 Procedure for recount; stopping recount (Effective 5/2/06)

At the time and place fixed for making a recount, the board of elections, in the presence of all observers who may be in attendance, shall open the sealed containers containing the ballots to be recounted, and shall recount them. If a county used punch card ballots and if a chad is attached to a punch card ballot by three or four corners, the voter shall be deemed by the board not to have recorded a candidate, question, or issue choice at the particular position on the ballot, and a vote shall not be counted at that particular position on the ballot in the recount. Ballots shall be handled only by the members of the board or by the director or other employees of the board. Observers shall be permitted to see the ballots, but they shall not be permitted to touch them, and the board shall not permit the counting or tabulation of votes shown on the ballots for any nomination, or for election to any office or position, or upon any question or issue, other than the votes shown on such ballots for the nomination, election, question, or issue concerning which a recount of ballots was applied for.


At any time before the ballots from all of the precincts listed in an application for the recount or involved in a recount pursuant to section 3515.011 of the Revised Code have been recounted, the applicant or declared losing candidate or nominee or each of the declared losing candidates or nominees entitled to file a request prior to the commencement of a recount, as provided in section 3515.03 of the Revised Code, may file with the board a written request to stop the recount and not recount the ballots from the precincts so listed that have not been recounted prior to the time of the request. If, upon the request, the board finds that results of the votes in the precincts recounted, if substituted for the results of the votes in those precincts as shown in the abstract of the votes in those precincts, would not cause the applicant, if a person for whom votes were cast for nomination or election, to be declared nominated or elected or if an election upon a question or issue would not cause a result contrary to the result as declared prior to such recount, it shall grant the request and shall not recount the ballots of the precincts listed in the application for recount that have not been recounted prior to that time. If the board finds otherwise, it shall deny the request and shall continue to recount ballots until the ballots from all of the precincts listed in the application for recount have been recounted; provided that, if the request is denied, it may be renewed from time to time. Upon any such renewal, the board shall consider and act upon the request in the same manner as provided in this section in connection with an original request.


As used in this section, "chad" and "punch card ballot" have the same meanings as in section 3506.16 of the Revised Code.

§ 3515.041 Deadline for Recounts(Effective 5/2/06)

As required by 3 U.S.C. 5, any recount of votes conducted under this chapter for the election of presidential electors shall be completed not later than six days before the time fixed under federal law for the meeting of those presidential electors.

§ 3515.05 Duties of board of elections when recount is completed

Upon completion of the recount of the ballots of all precincts listed in an application for a recount, or upon stopping the recount prior to such time, or in the case of a recount as provided in section 3515.011 of the Revised Code, the board of elections shall promptly prepare and certify an amended abstract showing the votes cast in each precinct in its county in which the nomination, election, or question or issue was submitted to electors, which amended abstract shall embody the votes of the precincts, the ballots of which were recounted, as shown by such recount. Copies of such certified amended abstracts shall be mailed to such other boards or election officials as required in the case of the original abstract which such amended abstract amends.

If the nomination, election, or question or issue concerning which such recount was made was submitted only to electors within a county, the board shall make an amended declaration of the result of such election in the same manner required in the making of its original declaration of the result of such election.

If the nomination, election, or question or issue concerning which a recount was made was submitted only to electors of a district comprised of more than one county but less than all of the counties of the state, the board of the most populous county in such district shall canvass the amended abstracts received from the board of each county in such district in which a recount was made, and shall make an amended declaration of the results of such election in such district in the same manner required in the making of its original declaration of the result of such election.

If the nomination, election, or question or issue concerning which a recount was made was submitted only to electors of a subdivision located in more than one county, the board of the county in which the major portion of the population of such subdivision is located shall canvass the amended abstracts received from the board of each county in which a portion of the population of such subdivision is located and in which a recount was made, and shall make an amended declaration of the results of such election in such subdivision in the same manner required in the making of its original declaration of the result of such election.

If the nomination, election, or question or issue concerning which a recount was made was submitted to electors throughout the entire state, the secretary of state shall canvass all amended abstracts received from the board of each county in the state in which a recount was made, and shall make an amended declaration of the results of such election throughout the entire state in the same manner required in the making of his original declaration of the result of such election.

§ 3515.06 Application for recount in precincts not recounted

If, pursuant to section 3515.04 of the Revised Code, a person was declared nominated as a candidate for election to an office or elected to an office or position in an election and if it subsequently appears by the amended declaration of the results of such election made following a recount of votes cast in such election that such person was not so nominated or elected, such person may, within five days after the date of such amended declaration of the results of such election, file an application with the board of elections for a recount of the votes cast at such election for such nomination or election in any precinct, the ballots of which have not been recounted.

If, following a recount of votes cast in an election upon any question or issue, the amended declaration of the results of such election shows the result of such election to be contrary to the result thereof as declared in the original declaration of the results thereof, any group of five or more qualified electors which has filed a statement with the board as provided in the third paragraph of section 3515.03 of the Revised Code may, within five days after the date of the amended declaration, file an application with the board for a recount of the votes cast at such election upon such question or issue in any precinct of the county, the votes of which have not been recounted.

Sections 3515.01 and 3515.02 to 3515.05 of the Revised Code are applicable to any application provided for in this section and to the recount had pursuant thereto.

§ 3515.07 Charges for recount

The charges for making a recount of votes of precincts listed in an application for a recount filed with the board of elections shall be fixed by the board and shall include all expenses incurred by such board because of such application other than the regular operating expenses which the board would have incurred if the application had not been filed. The total amount of charges so fixed divided by the number of precincts listed in such application, the votes of which were recounted, shall be the charge per precinct for the recount of the votes of the precincts listed in such application, the votes of which were recounted; provided that the charges per precinct so fixed shall not be more than ten nor less than five dollars for each precinct the votes of which were recounted.

Such charge per precinct shall be deducted by the board from the money deposited with the board by the applicant for the recount at the time of filing his application, and the balance of the money so deposited shall be returned to such applicant; provided that no such charge per precinct shall be deducted by the board from the money deposited for a recount of votes cast for a nomination or for an election to an office or position in any precinct, if the total number of votes cast in such precinct for the applicant, as recorded by such recount, is more than four per cent larger than the number of votes for such applicant in such precinct recorded in the original certified abstract thereof, nor shall any charge per precinct be deducted for a recount of votes cast in any precinct upon a question or issue if the total number of votes in such precinct on the same side of such question or issue as the side represented by the applicant, as recorded by such recount, is more than four per cent larger than the number of votes in such precinct on the same side of such question or issue recorded in the original certified abstract thereof. No such charge per precinct shall be deducted if upon the completion of a recount concerning a nomination or election the applicant is declared nominated or elected, or if upon the completion of a recount concerning a question or issue the result of such election is declared to be opposite to the original declaration of the result of such election. All moneys deposited with a board by an applicant shall be deposited in a special depository fund with the county treasurer. The expenses of the recount and refunds shall be paid from said fund upon order of the board of elections. Any balance remaining in such fund shall be paid into the general fund of the county.

§ 3515.07 Charges for recount (Effective 5/2/06)

The charges for making a recount of votes of precincts listed in an application for a recount filed with the board of elections shall be fixed by the board and shall include all expenses incurred by the board because of the application other than the regular operating expenses that the board would have incurred if the application had not been filed. The total amount of charges so fixed divided by the number of precincts listed in the application, the votes of which were recounted, shall be the charge per precinct for the recount of the votes of the precincts listed in the application, the votes of which were recounted; provided that the charges per precinct so fixed shall not be more than fifty or less than five dollars for each precinct the votes of which were recounted.


Such charge per precinct shall be deducted by the board from the money deposited with the board by the applicant for the recount at the time of filing the application, and the balance of the money so deposited shall be returned to the applicant; provided that no such charge per precinct shall be deducted by the board from the money deposited for a recount of votes cast for a nomination or for an election to an office or position in any precinct, if the total number of votes cast in such precinct for the applicant, as recorded by the recount, is more than four per cent larger than the number of votes for the applicant in that precinct recorded in the original certified abstract, nor shall any charge per precinct be deducted for a recount of votes cast in any precinct upon a question or issue if the total number of votes in that precinct on the same side of that question or issue as the side represented by the applicant, as recorded by the recount, is more than four per cent larger than the number of votes in that precinct on the same side of that question or issue recorded in the original certified abstract . No such charge per precinct shall be deducted if upon the completion of a recount concerning a nomination or election the applicant is declared nominated or elected, or if upon the completion of a recount concerning a question or issue the result of that election is declared to be opposite to the original declaration of the result of that election.


All moneys deposited with a board by an applicant shall be deposited in a special depository fund with the county treasurer. The expenses of the recount and refunds shall be paid from that fund upon order of the board of elections. Any balance remaining in that fund shall be paid into the general fund of the county.

§ 3515.071 Public funding of recount

If the board of elections in a county orders a recount in any county or municipal election pursuant to section 3515.011 of the Revised Code, the expense of the recount shall be paid from the county treasury in the same manner as other expenses of the board under section 3501.17 of the Revised Code.

If the secretary of state orders a recount as provided in section 3515.011 of the Revised Code, the expense of the recount shall be paid from funds appropriated to the secretary of state, who may apply to the controlling board for funds to avert any deficiency that thereby would be created in current appropriations.

§ 3515.072 Adjustment of recount charges (Effective 5/2/06)

(A) In January of each odd-numbered year, the secretary of state, in accordance with this division and division (B) of this section, shall adjust each amount specified in sections 3515.03 and 3515.07 of the Revised Code. The adjustment shall be based on the yearly average of the previous two years of the Consumer Price Index for All Urban Consumers or its successive equivalent, as determined by the United States department of labor, bureau of labor statistics, or its successor in responsibility, for all items, Series A. Using the 2005 yearly average as the base year, the secretary of state shall compare the most current average consumer price index with that determined in the preceding odd-numbered year, and shall determine the percentage increase or decrease. The percentage increase or decrease shall be multiplied by each actual dollar figure specified in sections 3515.03 and 3515.07 of the Revised Code as determined in the previous odd-numbered year, and the product shall be added to or subtracted from its corresponding actual dollar figure, as necessary, for that previous odd-numbered year.


If the resulting amount is less than five dollars, the secretary of state shall retain a record of the resulting amount and the manner in which it was calculated, but shall not make an adjustment unless the resulting amount, when added to the resulting amount calculated in each prior odd-numbered year since the last adjustment was made, equals or exceeds five dollars.


(B)

(1) The secretary of state shall calculate the adjustment under division (A) of this section and shall report the calculations and necessary materials to the auditor of state, on or before the thirty-first day of January of each odd-numbered year. The secretary of state shall base the adjustment on the most current consumer price index that is described in division (A) of this section and that is in effect as of the first day of January of each odd-numbered year.


(2) The calculations made by the secretary of state under divisions (A) and (B)(1) of this section shall be certified by the auditor of state on or before the fifteenth day of February of each odd-numbered year.


(3) On or before the twenty-fifth day of February of each odd-numbered year, the secretary of state shall prepare a report setting forth the amount required to be deposited with a board of elections at the time a recount application is filed for each precinct to be recounted under section 3515.03 of the Revised Code and the minimum and maximum per precinct charge for a recount under section 3515.07 of the Revised Code. The report and all documents relating to the calculations contained in the report are public records. The report shall contain an indication of the period in which the deposit amounts and the minimum and maximum per precinct charges apply, a summary of how the deposit amounts and the minimum and maximum per precinct charges were calculated, and a statement that the report and all related documents are available for inspection and copying at the office of the secretary of state.


(4) On or before the twenty-fifth day of February of each odd-numbered year, the secretary of state shall transmit the report to the general assembly and shall send the report by electronic mail or other form of electronic communication to the board of elections of each county.