It is the duty of the body overseeing elections to count the votes and declare the results. Both federal law and state law will coexist in matters relating to counting of ballots when federal law does not specifically pre-empt state laws.
In the absence of a mandatory statute, ballot boxes cannot be opened and counted at the place where the election was held. This is to exempt the election officers from criminal liability and to validate the election even if counting occurs in a place other than that specified in the relevant statute.
Counting of votes should be carried out continuously without break. However, a temporary halt to the counting exercise for a valid reason will not make the results invalid. Votes that have not been cast in accordance with the procedure prescribed will be considered illegal votes and will not be counted. Generally, votes cast in favor of a deceased, disqualified, or ineligible candidate also will not be counted. But if the deceased, disqualified, or ineligible person received the maximum number of votes, the election will be annulled and the next candidate with the highest votes in his/her favor will not be elected. The office will have to continue to remain vacant.
Candidates, as well as voters, can contest an election and petition for a recount. A petition for a recount has to be filed within the time frame specified in the statute. Once election officials have counted the votes and announced the results, they cannot withdraw the results. Sometimes, a recount may become necessary. Only a board of canvassers, commissioners appointed by a court or judge, or other similar officials are authorized to conduct a recount. They will have only such power as conferred by the relevant statute. During a recount, a board should try to ascertain the intention of the voter instead of acting like a machine installed for counting[i]. In order to succeed on a petition for recount, the following have to be shown:
- that the ballots have been preserved in the manner prescribed by statute,
- that they are the identical ballots cast by the voters, and
- that they have not been tampered with.
If the above factors are not proven, the results already declared will prevail and a recount will not be ordered. A failed candidate contesting an election must show that had it not been for the impropriety of the voting, s/he would have prevailed. In the absence of such a showing, the candidate’s contest fails[ii]. If the manner of conducting a recount is not prescribed by statute, the board must come up with a method arrived at after exercising sound discretion.
[i] Moore v. Hayes, 1987 OK 82 (Okla. 1987).
[ii] Abbott v. Hunhoff, 491 N.W.2d 450, 452 (S.D. 1992).