January 1, 1900

by Meridith F. M. Mason

There are many intricacies to election law. A candidate may run for office and expect his or her involvement in the election process to be over at 8:00 p.m. on Election Day. Most likely, the candidate expects that he or she will know whether they have in fact won or lost only hours after the polls close and may then begin the process of either easing themselves back into their pre-campaign profession or initiating themselves into the political process, depending upon the election results.

However, as is most obviously evidenced by the 2000 General Election and the Presidential race between Bush and Gore, the results of an election are not always definitive on Election Day, but often spill over into the post-election application process. Of course, post-election issues most often arise when the results of an election are very close, as was the case in the 2000 Presidential race. When there are very few votes separating the would-be office-holders, there is more incentive to challenging the results of the election than there may be when a landslide win occurs.

The Recheck

Typically, the first post-election challenge comes by way of an application for a "recheck". Such an application usually involves a recheck of the voting machines utilized in the subject election. In New Jersey, the governing statute allows only the defeated candidate in an election to request a recheck. However, the recheck is granted as-of-right, and as a result, unlike the case of a "recount", there are no required proofs of the losing candidate.

Once the recheck is granted by the Court, a date will be set on which it takes place. The actual recheck involves the opening of all of the voting machines utilized in the election, which are until that point, impounded and closed under lock and key. Once opened, the number of votes recorded as cast in each machine is then called out loud by an election official. The purpose of the recheck is to see whether the number of votes tallied and announced as cast for the candidate(s) on Election Day is consistent with those revealed by the recheck, or if there is some error. Given that a recheck application is typically made when election results are close, one can imagine how an error revealed can be of such importance. If two candidates are separated by only a handful of votes, an error in reading the machines on Election Day can transform a defeated candidate into the winner, and vice versa.

The Recount

A second type of post-election application is an application for a "recount". Unlike the "recheck" process, the application for a "recount" is not granted as-of-right. Rather, the applicant must have sufficient grounds for requesting this procedure. A recount is not restricted to the defeated candidate alone, but may be requested by either candidate. The grounds for a recount require that a candidate demonstrate that he or she has "reason to believe that an error has been made by any district board or any board of canvassers in counting the vote or declaring the vote of any election". While a recount is not granted as-of-right, it is certainly not a stringent standard. As long as the applicant is able to show that, in some way, he or she has "reason to believe" that there has been an error "in counting or declaring the vote", a recount will usually be granted.

The difference between a recheck application and one for a recount is evidenced most clearly when applied to paper ballots. This is so because a recheck and recount of voting machines can realistically involve only one function, which is to check the votes recorded by the machine(s) against the machine votes declared on Election Day.

Paper ballots, which can take the form of military ballots, civilian absentee ballots and provisional ballots, are submitted by voters who, for legitimate reasons governed by statute, are unable to vote via voting machine. Assuming the challenging candidate's request for a recount is granted, the county board of elections will once again review the votes cast to ensure that there were no errors made in the first review.

While paper ballots are in the first instance counted by machine, a recount of paper ballots is done by hand by the county board of elections. As such, a hand recount can reveal issues which the machine may not have picked up, such as chads not properly punched, partially punched, or ballots on which the voter's choice was indicated in a manner different from that checked by the machine. All of this may have the effect of altering the results of the election.

A vote which may not have been picked up by the machine, such as a partial punch or a "hanging chad" - the term recently coined in the Presidential Election - may then be revealed. If the board chooses to count that vote, by either majority or unanimous vote, it is counted. If the board ties and cannot decide, the Court has jurisdiction to make a determination on the ballot. Once the recount is complete, either by way of board action or after referral to the Court, the county board of elections works with the county clerk and the Court to issue a certificate of recount and certifies the election.

The Election Contest

Lastly, a candidate may apply to "contest" an election. The grounds for a contest are numerous, but are completely statutory. One possible ground is malconduct, fraud or corruption on the part of the board. Another is legal votes rejected sufficient to change the result of the election, or illegal votes received. What is an "illegal" and "legal" vote will depend on the facts of each case. An example of a legal vote rejected would be a duly registered voter, who is otherwise entitled to vote, but who is turned away inside the polling place because he has not cast his vote before 8:00 p.m, since by statute a voter cannot be turned away and must be permitted to vote as long as such voter is physically within the voting place prior to close of polls. Once the application for a contest is filed with the Court, the judge assigned must then set the matter for a trial date no less than 15 days, and no more than 30 days, after such filing.

It is possible, if not probable, in the case of a very close election, that an application for a recheck, recount and an election contest will be filed. Furthermore, there is always the possibility that after the election contest application is disposed of by the Court, the result could be appealed. While such a chain of events does not immediately indicate which candidate is the clear winner of an election, resulting in a certain amount of frustration and anxiety for the public and those involved, it does provide some checks and balances for the election process.

Meridith F. M. Mason is an associate of the firm where she is a member of the Creditors' Rights/Bankruptcy Practice Group.