[Deschler's Precedents, Volume 2, Chapters 7 - 9]
[Chapter 9.  Election Contests]
[K. Inspection and Recount of Ballots]
[Â§ 40. Grounds]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 1078-1081]
 
                               CHAPTER 9
 
                           Election Contests
 
                  K. INSPECTION AND RECOUNT OF BALLOTS
 
Sec. 40. Grounds

    The precedents indicate that a recount will be ordered only when 
the contestant has satisfied his burden of proving that such recount 
would alter the result of the election,(12) based on 
evidence sufficient to raise at least a presumption of irregularity or 
fraud.(13) A mere suggestion of, or a speculative 
possibility of, error, is not sufficient for an election committee to 
order a recount.(14)
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12. See Sec. Sec. 40.5-40.7, infra.
13. See Sec. Sec. 40.1, 40.4, infra.
14. See Sec. Sec. 40.1, 40.2, 
        infra.                          -------------------
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Justification for Recount

Sec. 40.1 An application for a recount of votes in an election contest 
    must be based on evidence sufficient to raise at least a 
    presumption of irregularity or fraud, and a re

[[Page 1079]]

    count will not be ordered on the mere suggestion of possible error.

    In Swanson v Harrington (Sec. 50.4, infra), a 1940 Iowa contest, 
the Committee on Elections determined the central issue to be whether 
the contestant could show, by a preponderance of the evidence, that an 
application for recount was justified due to fraud or irregularity. The 
committee concluded that contestant had failed to carry the burden of 
showing that, due to fraud and irregularity, the result of the election 
was contrary to the clearly defined wish of the constituency involved.

Sec. 40.2 An elections committee will not conduct a recount until the 
    necessity therefor has been established by evidence showing a 
    probability of error.

    In the contested elections case of Stevens v Blackney from Michigan 
(Sec. 55.3, infra), presented to the House on Sept. 22, 1949, the 
elections subcommittee informed a contestant prior to his taking any 
testimony that a recount would be ordered by the committee in precincts 
where the official returns were impugned by evidence. The committee 
rationale was that the probability of error should first be shown in 
order to avoid subjecting a Member whose election had been certified to 
``fishing expeditions'' and ``frivolous contests.''

Burden of Showing Fraud, Irregularity, or Mistake

Sec. 40.3 Where a party to an election contest claims that a recount of 
    the ballots was in error, in that he was not credited with votes 
    from a certain ballot box, he has the burden of proof to establish 
    that through fraud or mistake such votes were removed from the box 
    before the recount.

    In Roy v Jenks (Sec. 49.1, infra), a 1938 New Hampshire contest, 
the defeated candidate, Alphonse Roy, applied to the secretary of state 
of New Hampshire for a recount pursuant to state law. At the recount, 
at which both parties were represented, discrepancies were found 
resulting in a tie vote of 51,690 votes for each candidate. Both 
candidates appealed to the ballot-law commission for final 
determination. Subsequently, Arthur B. Jenks notified the Governor that 
he had obtained proof of a 34- or 36-vote discrepancy in his favor in 
the town of Newton, New Hampshire, and petitioned for a rehearing. The 
Committee on Elections placed the burden of

[[Page 1080]]

proof on Mr. Jenks to establish that there were 34 votes cast for him 
in the Newton precinct ballot box, which were not given to him on 
either recount, and ``that these ballots by fraud or mistake were 
removed from this ballot box at some time before a recount. . . .'' The 
committee accepted the original recount of the Newton ballots as the 
best evidence of the number of votes cast, and declared Mr. Roy elected 
by a majority.

Sec. 40.4 The House will not order an elections committee to conduct a 
    recount until the necessity has been established by evidence which 
    warrants the presumption of fraud or irregularity.

    In the 1949 Michigan contested election of Stevens v Blackney 
(Sec. 55.3, infra), the House followed the majority report by declining 
to order a recount because the contestant had offered no evidence 
impugning the official returns. The rationale was that, unless error 
were first demonstrated, the Committee on Elections would be burdened 
with ``frivolous contests''; and there was no proof that a House-
conducted recount would be more accurate than the original count in any 
event.

Burden of Proving Recount Would Change Election Result

Sec. 40.5 Where the contestant seeks a complete recount of votes, based 
    on a partial recount, he has the burden of proving that such 
    recount would change the result of the election--that is, would 
    establish a majority for him.

    In Moreland v Schuetz (Sec. 52.3, infra), a 1944 Illinois contest, 
the committee found that a partial recount, which covered 42 percent of 
total votes cast and included over 56 percent of votes cast for 
contestee, reduced contestee's majority, but not enough to change the 
outcome. The committee ruled that contestant had failed to sustain his 
burden of proof, and indicated that the partial recount was by no means 
conclusive proof that the trend of the change as shown by the recount 
in favor of the contestant would have continued throughout the recount 
of all ballots.

Sec. 40.6 An election committee declared that it could proceed to a 
    recount if some substantial allegations of irregularity or fraud 
    are alleged, and the likelihood exists that the result of the 
    election would be different

[[Page 1081]]

    were it not for such irregularity or fraud.

    See the 1965 Iowa election contest of Peterson v Gross (Sec. 61.3, 
infra), where the election committee declined to order a recount and 
recommended dismissal of the contest, a recommendation with which the 
House later agreed, after finding that the contestant (who lost by 419 
votes) had not clearly presented proof sufficient to overcome the 
presumption that the returns of the returning officers were correct. 
The contestant had admitted that he was not alleging fraud on the part 
of anyone.

Sec. 40.7 A committee on elections will not order a recount of ballots 
    where the contestant has merely shown errors in the official return 
    insufficient to change the results of the election.

    In the 1934 Illinois contested election of Weber v Simpson 
(Sec. 47.16, infra), the contestee won by a plurality of 1,222 votes 
and the contestant requested that the committee order a recount after 
his examination of the tally sheets in all the 516 precincts in the 
district found discrepancies reducing the contestee's plurality to 920 
votes. The committee denied the request, however, and recommended the 
adoption of a resolution that the contestee was entitled to the seat.

Sec. 40.8 A committee on elections refused to conduct a partial recount 
    where contestant failed to sustain the burden of proving fraud or 
    irregularities sufficient to change the result of the election.

    In addition to failure to sustain the burden of proof of fraud as 
noted above, the contestant in O'Connor v Disney (Sec. 46.3, infra), 
was held not to have sufficiently demonstrated that proper custody of 
ballots was maintained subsequent to the election.