Associate Professor, Moritz College of Law
The procedure in Ohio for an election recount is set forth in chapter 3515 of the Ohio Revised Code. Under Ohio law, a recount can commence one of two ways: by application or, when the margin of victory is very small, automatically.
Application or Automatic
Any losing nominee or candidate in a primary, general, or special election can request a recount. Also, a group of five or more voters can request a recount on a question or issue. The recount process begins by filing a written application with the Board of Elections of each county in which votes are to be recounted. R.C. 3515.01. The application must be filed within five days after the results were declared. R.C. 3515.02. The application must also list each precinct within the county where votes are to be recounted, and for each precinct a $10 deposit must be paid. R.C. 3515.03.
If the margin of victory of the nominee, candidate, or issue is less than one-half of one percent of the vote, section 3515.011 of the Revised Code triggers an automatic recount in all county, municipal, and district elections. An even slimmer margin —one-fourth of one percent—triggers an automatic recount in a statewide election.
The Recount Process
Once the recount process is initiated, section 3515.03 compels the county Board of Elections to set a time, place, and method for the recount. The board must notify the applicant and others for whom votes were cast of the recount by certified mail no later than five days before the recount is scheduled. This notice, however, can be waived by filing a written notice. All who receive notice are permitted to attend the recount or select a witness to attend on their behalf.
At the designated time and place for the recount, the Board of Elections opens the sealed ballot containers and recounts the ballots. Only the director of the Board of Elections, board members, or employees can handle the ballots. Witnesses can only observe the recount; they cannot touch the ballots. R.C. 3515.04. Following the 2000 Florida punch card controversy, the Ohio General Assembly amended the recount procedure. Section 3515.04 now mandates that a selection on a punch card ballot will not count unless the chad is detached by at least two corners. ("Chad" means the small piece of paper or cardboard produced from a punch card ballot when a voter pierces a hole in a perforated, designated position on the ballot with a marking device to record the voter's candidate, question, or issue choice. R.C. 3506.16.)
Once a recount starts, the applicant or declared losing nominee or candidate can file a written request to stop the recount with the Board of Elections. R.C. 3515.04. However, if the results at the time of the request show that the election results would be reversed if the recount stopped immediately, the recount continues until all of the precincts have been recounted.
When the recount is complete, the Board of Elections declares the amended results, or in the case of a statewide election, the revised numbers are sent to the Secretary of State pursuant to section 3515.05. If the effect of the recount is to declare a different winner of the election, the candidate who came out on top in the original count may, within five days of the release of the new results, apply for a recount of any or all of the precincts that were not already recounted. R.C. 3515.06. In this second recount, all of the rules of the first recount apply, including the required deposit of $10 per precinct.
Contest of Election
The process might not end here. A defeated nominee or candidate could contest the election following a recount. Section 3515.09 provides for filing a contest of election petition by defeated nominees or candidates with the clerk of the appropriate court. The petition must be filed within 10 days of the announcement of the results of the recount. The petition must be verified and set forth the grounds for the contest and be accompanied by a surety bond sufficient to pay all the costs of the contest. In any contest of election involving a recount, all the recounted ballots are sent to the court, which conducts a recount as provided by section 3515.13. In order to prevail, a contestant must prove by clear and convincing evidence that voting irregularities affected enough votes to "change or make uncertain the result." In re Election Contest of December 14, 1999 Special Election for the Office of Mayor of the City of Willoughby Hills, 744 N.E.2d 745, 747 (Ohio 2001).