Section 2. Elections and Primaries Generally, 21-2-1 through 21-2-604.
ARTICLE 12
RETURNS
21-2-495. Procedure for recount or recanvass of votes; losing candidate's right to a recount.
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In precincts where paper ballots have been used, the superintendent may, either of his or her own motion or upon petition of any candidate or political party, order the recount of all the ballots for a particular precinct or precincts for one or more offices in which it shall appear that a discrepancy or error, although not apparent on the face of the returns, has been made. Such recount may be held at any time prior to the certification of the consolidated returns by the superintendent and shall be conducted under the direction of the superintendent. Before making such recount, the superintendent shall give notice in writing to each candidate and to the county or municipal chairperson of each party or body affected by the recount. Each such candidate may be present in person or by representative, and each such party or body may send two representatives to be present at such recount. If upon such recount, it shall appear that the original count by the poll officers was incorrect, such returns and all papers being prepared by the superintendent shall be corrected accordingly.
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In precincts where voting machines have been used, whenever it appears that there is a discrepancy in the returns recorded for any voting machine or machines or that an error, although not apparent on the face of the returns, exists, the superintendent shall, either of his or her own motion or upon the sworn petition of three electors of any precinct, order a recanvass of the votes shown on that particular machine or machines. Such recanvass may be conducted at any time prior to the certification of the consolidated returns by the superintendent. In conducting such recanvass, the superintendent shall summon the poll officers of the precinct; and such officers, in the presence of the superintendent, shall make a record of the number of the seal upon the voting machine or machines and the number of the protective counter or other device; shall make visible the registering counters of each such machine; and, without unlocking the machine against voting, shall recanvass the vote thereon. Before making such recanvass, the superintendent shall give notice in writing to the custodian of voting machines, to each candidate, and to the county or municipal chairperson of each party or body affected by the recanvass. Each such candidate may be present in person or by representative, and each of such parties or bodies may send two representatives to be present at such recanvass. If, upon such recanvass, it shall be found that the original canvass of the returns has been correctly made from the machine and that the discrepancy still remains unaccounted for, the superintendent, with the assistance of the custodian, in the presence of the poll officers and the authorized candidates and representatives, shall unlock the voting and counting mechanism of the machine and shall proceed thoroughly to examine and test the machine to determine and reveal the true cause or causes, if any, of the discrepancy in returns from such machine. Each counter shall be reset at zero before it is tested, after which it shall be operated at least 100 times. After the completion of such examination and test, the custodian shall then and there prepare a statement, in writing, giving in detail the result of the examination and test; and such statement shall be witnessed by the persons present and shall be filed with the superintendent. If, upon such recanvass, it shall appear that the original canvass of the returns by the poll officers was incorrect, such returns and all papers being prepared by the superintendent shall be corrected accordingly; provided, however, that in the case of returns from any precinct wherein the primary or election was held by the use of a voting machine equipped with a mechanism for printing paper proof sheets, such proof sheets, if mutually consistent, shall be deemed to be prima-facie evidence of the result of the primary or election and to be prima facie accurate; and there shall not be considered to be any discrepancy or error in the returns from any such precinct, such as to require a recanvass of the vote, if all available proof sheets, from the voting machine used therein, identified to the satisfaction of the superintendent and shown to his or her satisfaction to have been produced from proper custody, shall be mutually consistent; and, if the general and duplicate returns, or either of such returns from such precincts shall not correspond with such proof sheets, they and all other papers being prepared by the superintendent shall be corrected so as to correspond with such proof sheets in the absence of allegation of specific fraud or error proved to the satisfaction of the superintendent by the weight of the evidence; and only in such case shall the vote of such precinct be recanvassed under this Code section.
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Whenever the difference between the number of votes received by a candidate who has been declared nominated for an office in a primary election or who has been declared elected to an office in an election or who has been declared eligible for a run-off primary or election and the number of votes received by any other candidate or candidates not declared so nominated or elected or eligible for a runoff shall be not more than 1 percent of the total votes which were cast for such office therein, any such candidate or candidates receiving a sufficient number of votes so that the difference between his or her vote and that of a candidate declared nominated, elected, or eligible for a runoff is not more than 1 percent of the total votes cast, within a period of two business days following the certification of the election results, shall have the right to a recount of the votes cast, if such request is made in writing by the losing candidate. If the office sought is a federal or state office voted upon by the electors of more than one county, the request shall be made to the Secretary of State who shall direct that the recount be performed in all counties in which electors voted for such office and notify the superintendents of the several counties involved of the request. In all other cases, the request shall be made to the superintendent. The superintendent or superintendents shall order a recount of such votes to be made immediately. If, upon such recount, it is determined that the original count was incorrect, the returns and all papers prepared by the superintendent, the superintendents, or the Secretary of State shall be corrected accordingly and the results recertified.
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Whenever the difference between the number of votes for approval or rejection of a constitutional amendment or binding referendum question shall be not more than 1 percent of the total votes which were cast on such amendment or question therein, within a period of two business days following the certification of the election results, the Constitutional Amendments Publication Board shall be authorized in its discretion to call for a recount of the votes cast with regard to such amendment or question. In the case of a constitutional amendment or state-wide referendum question or a question voted upon by the electors of more than one county, the board shall direct the Secretary of State to cause a recount to be performed with regard to such amendment or question in all counties involved and notify the superintendents of the recount. In the case of questions voted upon by the electors of only one county or municipality, the board shall direct the Secretary of State to cause a recount to be conducted by the county or municipality involved and the Secretary of State shall notify the superintendent involved of the recount. Upon notification, the superintendent or superintendents shall order a recount of such votes to be made immediately. If, upon such recount, it is determined that the original count was incorrect, the returns and all papers prepared by the superintendent, the superintendents, or the Secretary of State shall be corrected accordingly and the results recertified.
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Any other provision of this Code section to the contrary notwithstanding, a candidate for a federal or state office voted upon by the electors of more than one county may petition the Secretary of State for a recount or recanvass of votes, as appropriate, when it appears that a discrepancy or error, although not apparent on the face of the returns, has been made. The recount or recanvass may be ordered in the discretion of the Secretary of State in any and all counties in which electors voted for such office, and said recount or recanvass may be held at any time prior to the certification of the consolidated returns by the Secretary of State. A recount or recanvass shall be conducted by the appropriate superintendent or superintendents in the manner and pursuant to the procedures otherwise provided in this Code section for a recount or recanvass, as appropriate. The petition pursuant to this Code section shall be in writing and signed by the person or persons requesting the recount or recanvass. A petition shall set forth the discrepancies or errors and any evidence in support of the petitioner's request for a recount or recanvass and shall be verified. The Secretary of State may require the petitioner or other persons to furnish additional information concerning the apparent discrepancies or errors in the counting or canvassing of votes.
(Ga. L. 1941, p. 432, §§ 1-4, 8; Ga. L. 1962, p. 678, § 1; Code 1933, § 34-1505, enacted by Ga. L. 1964, Ex. Sess., p. 26, § 1; Ga. L. 1969, p. 292, § 1; Ga. L. 1975, p. 806, § 1; Ga. L. 1976, p. 248, § 1; Ga. L. 1982, p. 1512, § 5; Ga. L. 1983, p. 140, § 1; Ga. L. 1986, p. 382, § 5; Ga. L. 1986, p. 855, § 5; Ga. L. 1987, p. 34, § 1; Ga. L. 1995, p. 1027, § 11; Ga. L. 1998, p. 295, § 1; Ga. L. 2001, p. 269, § 24; Ga. L. 2003, p. 517, § 56; Ga. L. 2011, p. 683, § 19/SB 82.)
The 2011 amendment,
effective July 1, 2011, designated the existing provisions of subsection (c) as paragraph (c)(1); and added paragraph (c)(2).
Law reviews.
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For note on the 2001 amendment to O.C.G.A.
§
21-2-495, see 18 Ga. St. U.L. Rev. 96 (2001).
JUDICIAL DECISIONS
Recanvassing or recounting votes.
- No duty is imposed on a county political executive committee to recanvass or recount votes in a primary election. Kemp v. Mitchell County Democratic Executive Comm., 216 Ga. 276, 116 S.E.2d 321 (1960); Hamilton v. Smith, 216 Ga. 345, 116 S.E.2d 565 (1960).
Differences in recounting procedure for paper ballots and electronic ballots.
- Trial court did not err in granting the Secretary of State, the Governor, and the Georgia State Election Board summary judgment in voters' action challenging the use of direct recording electronic equipment because tangible ballots with custodial linkage to individual voters were not an absolute requirement for every voting system; although the recount law does not specifically set out recount procedures for electronic voting systems, it does clearly recognize that recount procedures for paper ballots necessarily differ from recanvassing procedures for mechanical voting machines. Favorito v. Handel, 285 Ga. 795, 684 S.E.2d 257 (2009).
Hearing of election contest by party's executive committee.
- Since the findings and report of the recount committee are final and conclusive as to all questions respecting the validity of a primary election, any subsequent attempt by the party's executive committee to entertain and hear a contest between the parties involved is an absolute nullity for want of authority to do so. Middleton v. Moody, 216 Ga. 237, 115 S.E.2d 567 (1960); Hamilton v. Smith, 216 Ga. 345, 116 S.E.2d 565 (1960).
Judicial enforcement of findings and reports of recount committee.
- When the executive committee or other authority conducting and holding a primary election for the nomination of its candidates fails or refuses to adopt, promulgate, publish, and certify to the proper authorities the findings and report of a recount committee, then the candidate whose rights may be affected by the failure or refusal has a right to proceed by mandamus to enforce the findings and report, and there is jurisdiction in the superior courts of this state to hear and determine the cause, notwithstanding the political nature of the controversy. Middleton v. Moody, 216 Ga. 237, 115 S.E.2d 567 (1960).
Cited in
Allen v. Yost, 281 Ga. 102, 636 S.E.2d 517 (2006); Broughton v. Douglas County Bd. of Elections, 286 Ga. 528, 690 S.E.2d 141 (2010).
RESEARCH REFERENCES
Am. Jur. 2d.
- 26 Am. Jur. 2d, Elections,
§§
359, 361, 368, 371.
C.J.S.
- 29 C.J.S., Elections,
§§
361, 380 et seq.
ALR.
- Determination of facts regarding custody of ballots since original count, as condition of recount, 71 A.L.R. 435.
Costs or reimbursement for expenses incident to election contest or recount, 106 A.L.R. 928.
Validity of runoff voting election methodology, 67 A.L.R.6th 609.
