California’s automatic manual tally
California Elections Code Section 15360 requires that, prior to certifying the election, a random sample of ballots from every election must be recounted manually to verify the computer count. The manual tally must include, at minimum, votes cast in one percent (1%) of the precincts. Additional precincts are counted in order to manually verify each contest on the ballot. This manual recount must be completed before the election is certified. The Automatic Manual Recount is open to the public.
County of Santa Clara’s automatic recount policy
Pursuant to Board of Supervisors’ Policy 3.63, the County of Santa Clara perform an automatic recount for contests with a margin of victory less than 0.25% (one-quarter of one percent) of ballots cast, or where that margin is less than 25 total votes.
The automatic recount applies only to local contests whose jurisdictions are wholly contained within the County of Santa Clara. Federal and state contests are excluded. The recount will be performed manually except in the case of a countywide or City of San Jose citywide contest, in which case the recount will be conducted by tabulation machine. The recount will be conducted prior to the certification of election results.
The recounted will be conducted concurrently with the 1% manual tally as an extension of that tally, pursuant to Elections Code Section 15360(a)(1)(B)(ii). Contests qualifying for the recount according to the above criteria will be based on the most recent results reported prior to commencement of the 1% manual tally, and following the completed of tally of all outstanding Vote by Mail, provisional and conditional voter ballots. Ballots will be pulled and prepared for the automatic recount concurrent with and in the same manner as the regular 1% manual tally.
Contested elections – court proceedings
California Elections Code Division 16 refers to the right for any voter or candidate to contest the election results, in court, on very serious grounds that certain conduct had occurred that has affected the outcome of the election. The petition and grounds follow the same process as found above, under Court Ordered Recounts.
In addition, under Section 16101, at a primary election, a candidate may contest the right of another candidate to nomination to the same office by filing an affidavit alleging any of the following other grounds in addition to Section 16100 have occurred:
- The (nominated) defendant is not eligible to the office in dispute.
- There were enough votes cast that were illegal, fraudulent, forged, or otherwise improper, and that had those votes not been counted, the defendant would not have received as many votes as the contestant.
- There were enough eligible voters who were denied their right to vote, and that had those voters been permitted to vote, the defendant would not have received as many votes as the contestant.
- Due to mistake, error, or misconduct the votes in any precinct were so incorrectly counted as to change the result.
Recounts ordered by the Superior Court
For details on court ordered recounts, see Division 15, Chapter 9, Article 4 of the California Elections Code.
In a single county, the board of supervisors or a grand jury may request the county’s district attorney to petition the superior court to order a public recount of ballots that were tabulated by a voting system in any precinct(s) chosen to be recounted.
The request and petition can only be made on very specific grounds, and the court order issued with a finding that there is probable cause to believe that the election was affected. These grounds must relate to the safekeeping, handling, tallying, counting, recording, or certification of the ballots or votes cast and based on misconduct, errors or failures by workers or the vote counting system. The petition must also state that, due to the grounds, the outcome of the election would have been different.
Section 15640 incorporates, by reference, the actions listed in Section 16100 as also relevant to the grounds of misconduct:
- That the precinct board or any member thereof was guilty of malconduct.
- That the person who has been declared elected to an office was not, at the time of the election, eligible to that office.
- That the person listed as the defendant has committed any other offense against the election defined in Division 18 (commencing with Section 18000), such as offered a bribe or reward to a voter or precinct board member to commit a crime.
- That illegal votes were cast.
- That eligible voters who attempted to vote in accordance with the laws of the state were denied their right to vote.
- That the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected.
- That there was an error in the vote-counting programs or summation of ballot counts.
Voter requested recounts
Under California’s Election law, following completion of the official canvass, any voter may, file a written request for a recount of the votes cast for candidates for any office, for slates of presidential electors, or for or against any measure. If the office, slate, or measure is voted on statewide, the request is filed with the Secretary of State.
When should a voter make a request for a recount of ballots?
The timing of a voter requested recount is very short and must be filed within five (5) calendar days after the completion of the official canvass and signing of the certificate of the election results. It is important to know when the Registrar of Voters completes the canvass and signs the certificate, so this short window is not missed. By law, an election must be certified no later than 30 days after Election Day. See Sections 15620 through 155623 of the California Elections Code.
Who can request a recount?
Any registered voter of the State of California may file a request. The person does not need to be a resident of the district in which the recount is requested.
What should a recount request include? Is there a specific format?
See California Elections Code Division 15, Chapter 9, Article 3 for details.
- The request must be in writing
- Must specify the contest to be recounted
- Must state on behalf of which candidate, slate of electors, or position on a measure (affirmative or negative) it is filed
- May specify the order in which precincts shall be counted
- May specify the method of counting to be used (computer or manual)
- May specify any other relevant material to be examined
Where is the written request for the recount submitted or filed?
See California Elections Code Division 15, Chapter 9, Article 3 for details.
- With the county elections official responsible for conducting the election, if the contest is not voted upon statewide
- If election is conducted in more than one county, the request may be filed with the county elections official of, and the recount conducted within, any or all of the affected counties
- With the Secretary of State if the contest is voted upon statewide
How does the Registrar of Voters notify the public of the recount?
Section 15628 of the California Elections Code requires the Registrar of Voters to post a notice of the recount, including the date and location, at least one day prior to the recount. The following persons will be notified in person or by any federally regulated overnight mail service:
- All candidates for any office the votes for which are to be recounted.
- Authorized representatives of presidential candidates to whom electors are pledged if the votes to be recounted were cast for presidential electors.
- Proponents of any initiative or referendum or persons filing ballot arguments for or against any initiative, referendum, or measure placed on the ballot by the governing body the votes for which are to be recounted.
- The Secretary of State in the case of a recount of the votes cast for candidates for any state office, presidential electors, congress, US senate, or delegates to a national convention or on any state measure.
Are there any fees associated with a recount requested by a voter?
Yes. A daily deposit is required. See Section 15624 of the California Elections Code, which generally states:
- The elections official determines a daily deposit necessary to cover costs of the recount for each day the recount is conducted
- Before the recount commences, and at the beginning of each day of the recount, the voter filing the request must deposit a fee to cover the cost of the recount for that day
- If the requestor fails to deposit the fee, the recount may conclude
- If the outcome of the recount has changed the election results in the requestor's favor, the deposit is returned
What is the daily recount process?
See Sections 15626 and 15629 of the California Elections Code that generally state:
- The recount is open to the public.
- Recount must start no later than seven calendar days following the receipt of the request and shall be continued daily, Saturdays, Sundays, and holidays excepted, for not less than six hours each day until completed. Typically, the County of Santa Clara conducts recounts for eight hours each day and excludes weekends and County holidays.
Are there any staffing requirements for a recount?
See Section 15625 of the California Elections Code, which generally states:
- A manual recount must be conducted by recount boards and under the supervision of the elections official.
- Recount boards must consist of four voters of the county, appointed by the elections official.
- The elections official determines the number of recount boards necessary to complete the recount in a timely manner.
- The elections official also determines whether additional personnel are necessary to produce relevant material, sort or retrieve materials, or check signatures.
Can the result of recount change the official certified results?
Yes. California Elections Code Sections 15632 and 15633 explain that, if the results of a recount show a different outcome (such as a different winner), the results of the official canvass will be changed and the election results would be re-certified and made public. If the outcome of the election has not changed (for example, the same candidate is winning), then the results would not be re-certified even if the vote totals or margin of victory changed. If the recount is not completed for every precinct in the jurisdiction, the recount results are considered void and will not be re-certified.
Does the State provide rules or guidance for recounts?
Yes. The Secretary of State is required to create regulations for the procedures for requesting and conducting recounts, in addition to other election processes. You can see a list of all current state regulations on the Secretary of State’s website.