Election Contests

An election is the process of choosing a person to fill an office.  An election contest is a right of action conferred on every candidate to contest the certification of nomination or the certificate of vote as made by the appropriate officials in any election[i].  It is a post-election contest between two competing candidates[ii].  Fraud, corruption, or irregularities in regard to the method of holding an election in a division can affect the entire vote.  Thus an election contest is a special proceeding created by the legislature to provide a remedy for elections tainted by fraud, illegality, or other irregularity[iii].

Generally, there are two types of election contests[iv]:

  • Motion seeking to oust and replace the certified winner; and
  • Motion seeking to declare an election void altogether.

The fundamental purpose of an election contest is to ascertain the true will of the electorate[v].  Moreover, an election contest provides a simple and speedy means of contesting elections.  Additionally, an election contest presupposes a full and fair litigation of election disputes in an expeditious manner[vi].  The remedy provided in an election contest is a statutory one and equity cannot be invoked to determine an election’s validity.  An election can be contested only for matters that would impeach the fairness of the result.  An election to any public office can be contested on the following grounds[vii]:

  • When illegal votes have been received;
  • When legal votes rejected at the polls, sufficient to change the result;
  • Where any error is committed by any board of canvassers in counting the votes or declaring the result of the election.

There is no provision under the common law to contest an election.  The right to contest an election exists only under the constitutional and statutory provisions.  An election contest is a special statutory proceeding.  One who seeks the benefit of a statutory proceeding must comply with all the procedural terms of the statute.  Courts cannot exceed the provisions of applicable statutes in resolving election contests[viii].  Thus the procedure proscribed by a state must be strictly followed in deciding election contests.  The judicial determination of election contests requires strict adherence to the constitutional and statutory provisions in the various jurisdictions[ix].  All candidates have the right to protest the returns of an election by filing a protest with the appropriate canvassing board[x].  In order to contest election results, the petitioner must show that the result of the election will be different in the absence of irregularities[xi].

A candidate intending to contest the election of a member of the House of Representatives must file a notice of his/her intention to contest the election with the Board of Canvassers within thirty days after the result of the election.  S/he must serve a copy of notice upon the contestee[xii].

The court or board authorized by statute or the constitution has jurisdiction to hear an election contest.  The jurisdictional facts must appear on the face of the proceedings.  However, jurisdictional defects can be raised at any time[xiii].  A judge who may be affected by the result of the decision is disqualified from sitting in the hearing.  The proper or necessary parties to election contest proceedings are usually prescribed by each statute. The right to contest an election is generally conferred on[xiv]:

  • Electors;
  • Candidates; or
  • Both.

However, a private citizen cannot initiate an election contest to remedy a public wrong.  In order to seek a remedy under election contest, the petitioner must seek personal relief.

A petition for an election contest must present more than mere charges of fraud and irregularity in the election.  Specifications are necessary to avoid indefinite and indeterminable inquiry[xv].  In an election contest, courts usually grant such relief which the statutes specifically authorize.  In deciding an election contest, the court can:

  • uphold the entire election or declare it invalid;
  • declare a winner of the election or order a new election between the candidates;
  • declare the election void if it concludes that it cannot determine the true outcome of the election; or
  • conclude that a new election is the fairest way to ascertain the true will of the people.

In many jurisdictions, statutory or constitutional provisions provide appeal from election contests available in many jurisdictions.  Moreover, the judgment of the trial court can be stayed pending the decision of the appellate court.  In reviewing the trial court’s findings of fact in an election contest, the appellate court will not disturb the trial court’s findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence[xvi].

[i] Helton v. Jacobs, 346 Ark. 344, 350 (Ark. 2001).

[ii] Jacobs v. Yates, 342 Ark. 243 (Ark. 2000).

[iii] Hotze v. White, 2010 Tex. App. LEXIS 2736 (Tex. App. Houston 1st Dist. Apr. 15, 2010).

[iv] King v. Davis, 324 Ark. 253, 256 (Ark. 1996).

[v] Barrett v. Monmouth County Bd. of Elections, 307 N.J. Super. 403 (Law Div. 1997).

[vi] Bush v. Gore, 531 U.S. 98 (U.S. 2000).

[vii] Kirk v. French, 324 N.J. Super. 548, 552 (Law Div. 1998).

[viii] Eubanks v. Hale, 752 So. 2d 1113 (Ala. 1999).

[ix] Taylor v. Roche, 271 S.C. 505, 509 (S.C. 1978).

[x] Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508 (Fla. Dist. Ct. App. 4th Dist. 1992).

[xi] Broward County Canvassing Bd. v. Hogan, 607 So. 2d 508 (Fla. Dist. Ct. App. 4th Dist. 1992).

[xii] 2 USCS § 382.

[xiii] Burgess v. Friar, 183 Ga. 386 (Ga. 1936).

[xiv] Hutto v. Walker County, 185 Ala. 505 (Ala. 1913).

[xv] Barham v. Denison, 159 Tenn. 226, 231 (Tenn. 1929).

[xvi] Waltman v. Rowell, 913 So. 2d 1083, 1086 (Ala. 2005).


Inside Election Contests