ELECTION RECOUNTS

William Francis Galvin

www.sec.state.ma.us/ele

electio[email protected]tate.ma.us

Revised 2017

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TABLE OF CONTENTS

I. Introduction ..........................................................................................................2

Filing Deadlines & Signature Requirements ...............................................4

Setting the Date for the Recount ..................................................................4

Discontinuing a Recount ..............................................................................5

Preparation for the Recount .........................................................................5

III. The Recount .......................................................................................................6

Ballots to be Counted by Hand ....................................................................6

The Will of the Voters .................................................................................7

Protested Ballots ..........................................................................................7

Absentee Ballots Rejected as Defective ......................................................7

V. District-wide Recount (Including Statewide) ...................................................10

Setting the Date of the Recount .................................................................12

Retention of Ballots ...................................................................................12

Notice ........................................................................................................12

When the Recount is Complete..................................................................12

V. Examples of Contested Ballot Marks................................................................12

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I. INTRODUCTION

In Massachusetts, recounts are a quasi-judicial procedure based on the General Laws,

court decisions, and customs developed from practical experience. The purpose of a

recount is to ascertain the will and intention of the voters. McCavitt v. Registrars of

Voters of Brockton, 385 Mass. 833 (1982).

The following procedures apply generally to recounts of all offices and questions decided

in all local and state preliminaries, primaries, and elections. District-wide and statewide

recounts after state primaries and elections (including presidential primaries, except for

ward and town committees) have additional requirements which are found in a separate

section IV of this booklet.

II. BEFORE THE RECOUNT

Petitioning for a Recount

deadlines and signature requirements for different types of recounts. In every case, it is

wise to secure more signatures than required.

Recount petition forms are available from the Election Division of the Office of the

Secretary of the Commonwealth and from city or town clerks or election commissioners.

The petitioner must file a separate recount petition in each ward of a city or precinct of a

town in which he or she desires a recount.

information taken from the ballots than what is specified in the petition.

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Voters signing a recount petition must sign in person as registered, or substantially as

registered, listing their current address of registration. The standards for certification of

signatures on recount petitions are contained in the Code of Massachusetts Regulations,

950 CMR § 55.03.

Voters signing petitions for recounts of political party primaries must have been enrolled

in that party on or before the last day to register to vote in that primary. G.L. c. 54, § 40A.

The signature of one signer for each ward of a city or precinct of a town must be

Recount petitions must be filed with city or town clerks, except in communities with

election commissions. In such cases, the petitions should be filed with the election

commission.

Note: When filing any recount petition for a special state election, it is also essential to

file a written statement of your intention to seek a recount with the Secretary of the

Commonwealth, no later than 5:00 P.M. on the sixth day after the election. G.L. c. 54,

§116.

Certification

ballots and absentee ballot envelopes; the list of voters who were sent absentee ballots,

indicating whether the ballots were cast or rejected as defective or whether such persons

voted in-person; and the sealed envelopes containing the ballots rejected as defective.

After examining the petition and statement and certifying the registration of the signers,

the registrars shall schedule the recount. A recount may not be held before the deadline

for filing recount petitions.

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If the candidate who filed the petition for a recount files a written request with the city or

town clerk that the recount be discontinued, the clerk shall immediately order the recount

discontinued and shall notify each candidate that unless a written objection is received

within 72 hours after the notice was sent, the recount shall be discontinued. If a written

objection is received within 72 hours, the recount must continue. If no objections are

received within 72 hours, the recount is discontinued.

The registrars or election commissioners sit as “judges” of the protested ballots; they do

not tally the votes, but may appoint the number of clerks necessary to do the actual

recounting. In addition to the ballot readers and clerks who record the ballots (tally

clerks), there should be “runners” to bring the protested ballots to the registrars for

examination and decision, and if desired, a stenographer to record the protested ballots.

Designated “agents” or legal counsel can make arguments respecting the protested ballots

only to the registrars, not the ballot readers or tally clerks.

agents must be appointed by the candidate or counsel in writing and have the right, along

with the candidate and counsel, to watch and inspect the ballots, tally sheets and all other

papers used in the recount, and to watch every individual act performed in connection

with the recount.

The general public may also witness the recount but cannot participate.

Candidates or their counsel should, prior to the recount, consult with the registrars or

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other factors. The number of counting tables will be determined based on the number of

teams counting the ballots. The table for the registrars, with places for the candidates’

counsel or representatives, should be separate from the tables where the counting takes

place.

All candidates for the office in question may, upon written request to the city or town

clerk, obtain and examine the record books and the precinct clerk’s book, where used;

and may require that a count be made of the number of persons checked on the voting

lists as having voted and that the figures on each ballot box register be examined. G.L. c.

54, § 108.

After the registrars and their clerks are in place, the candidates’ representatives and

agents are admitted to the recount area upon presentation of their written authorization.

Only those people directly involved in the recount can be present within the recount area;

however, the public and the press must be admitted into the room where the recount is

being conducted, to observe the proceedings. Members of the public must remain outside

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Only the registrars and their clerks are permitted to handle the ballots. No marks

whatsoever are to be made on the ballots. For paper ballots, each ballot should be spread

fully on the table in front of the ballot reader so that everyone at the table may view first

the outside, and then the inside of the ballot. A red pen or pencil is the only writing

instrument to be used at the table by the tally-clerk, who enters the ballot count on new

tally sheets. Conversation should be kept to a minimum.

The candidates’ counsel and agents should also try to maintain tallies.

section V for examples of contested ballot marks. McCavitt v. Registrars of Voters of

Brockton, 385 Mass. 833 (1982); Kane v. Registrars of Voter, 328 Mass. 511, 518

(1952); Munn v. Dabrowski, 335 Mass. 41 (1956).

When a ballot is protested by any agent, the tally clerk should not record the vote. The

tally clerk should call the runner to take the ballot to the registrars’ table where they may

make their determination in the presence of the candidates’ counsel. If all the counsel

agree with the registrars’ ruling, the runner returns the ballot to the table where it was

If the clerks finish counting the block before the runner returns with the protested ballot,

envelope.

During a recount, the registrars examine the sealed inner ballot envelopes of absentee

ballots which have previously been rejected as defective to determine whether each such

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statement must be signed by a majority of the registrars. This determination is subject to

protest as each envelope is examined at the recount. If the registrars decide to accept an

inner envelope originally rejected as defective, they must open the envelope, count the

ballot, and attach the envelope to the ballot.

Write-in and Sticker Votes

Section 77 of chapter 54 of the General Laws provides that a voter intending to write-in a

candidate on the ballot should insert “the name and residence of such candidate in the

space provided.” The court has recognized the address requirement as a direction to the

voter rather than a mandatory requirement.

was found not to invalidate such votes.” See also Maiewski v. Board of Registrars of

Voters, 347 Mass. 681, 199 N.E. 2 d 680 (1964).

An “X” placed to the right of the candidate’s name is permitted, but not required on a

write-in or sticker vote.

Votes written in for candidates who are already printed on the ballot for the same office

are considered over-votes and must be tallied as blanks.

Provisional ballots may have been used in certain circumstances: if a voter’s name did

not appear on the voters list, but the voter believed they were registered; if a voter was

required to present identification under the Help America Vote Act, but was unable to do

so; and in primaries, if a voter believed they were listed with an incorrect party

affiliation. G.L. c. 54, § 76C. The disposition of a provisional ballot is made after every

primary and election, regardless of whether there is a recount.

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Example 11

candidates not voted for.

Legal Reference:

335 Mass. 41, 138 N.E. 2d 570 (1956).

Example 13

Clear impression of cross on paper,

but only one leg penciled.

Legal Reference:

358 Mass. 644, 266 N.E. 2d 672 (1971).

Example 14

Legal Reference: