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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Information and Analysis

Potential Recount in GA-12

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November 12, 2006

In Georgia’s close 12th District U.S. House race, the candidate determined to have the fewest votes will probably have the power to obtain a recount after announcement of the official results.

According to unofficial results made available by the Georgia Secretary of State on November 9th, Republican Max Burns at that time was trailing his Democratic opponent, John Barrow, by a mere 963 votes. Assuming that number stays relatively stable as the final tabulation occurs, Burns should be able to force the state to conduct a recount after the results are certified. This is because Georgia law allows the apparent loser of an election to obtain a recount when the margin of victory is less than one percent of the total vote. G.C.A. s 21-2-495. Based on the Secretary of State’s current vote totals, one percent of the total vote is about 1,410 votes—a figure that puts Burns well within the “recount zone.”

However, the preliminary results reported by the Secretary of State are likely to change, at least somewhat: The Augusta Chronicle indicates “some” provisional and overseas absentee ballots remain to be counted, and that the deadline for submitting overseas absentee ballots will not occur until Monday, November 13. In addition, the Secretary of State’s figures indicate that 2% of precincts still have not reported results. Whether these outstanding ballots will be enough to remove the possibility of recount remains to be seen.

Burns—or Barrow, if the results turn against him-- may obtain a recount by filing a petition within two days of certification of the official results, which is expected to occur on Wednesday, November 15. G.C.A. s 21-2-495.

The 12th District election did not go perfectly, but problems seem to have been limited. The Columbus Ledger-Enquirer reports that a voting machine glitch in Effingham County forced officials to count votes by hand using a voter-verified paper audit trail (VVPAT), but there is no indication that the candidates think this led to an inaccurate count. No other problems are known.

If it appears there has been an error in a precinct, Georgia law allows officials, at their discretion, to order a recount even where the error is not apparent on the face of the returns. G.C.A. 21-2-495. Where paper ballots have been used, any candidate or political party aggrieved by a perceived error may file a petition to obtain such a recount, and officials “may” order a recount in response to the petition. Where voting machines have been used, any three electors may file the petition.

Georgia uses Diebold AccuVote-TS voting machines, exclusively (see here).

This article was contributed by Jonathan Griffin.