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Election Contests in California

A recount appeal is required to have precedence over all other appeals

By Chris Micheli, February 9, 2022 6:46 am

There are extensive rules for conducting election contests in the State of California. These rules are contained in Division 16 of the state’s Election Code. Chapter 1 deals with General Provisions. Section 16000 requires the general election contest provisions of this division to also apply to the recount of votes cast on a ballot measure.

Section 16002 defines the terms “contestant” and “defendant.” Section 16003 provides that, in a contest of the election of presidential electors, the action or appeal has priority over all other civil matters. Final determination and judgment must be rendered at least six days before the first Monday after the second Wednesday in December.

Chapter 2 deals with Grounds for Contest. Section 16100 provides that any elector of a county, city, or of any political subdivision of either may contest any election held for any of the following causes:

  • 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 defendant has given to any elector or member of a precinct board any bribe or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise.
  • 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.

Section 16101 authorizes any candidate at a primary election to contest the right of another candidate to nomination to the same office by filing an affidavit alleging any of the following grounds:

  • The defendant is not eligible to the office in dispute.
  • The defendant has committed any offense against the elective franchise.
  • A sufficient number of votes 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.
  • A sufficient number of eligible voters who attempted to vote in accordance with the laws of the state 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.

Chapter 3 deals with Contests at General Elections. Section 16200 specifies that Chapter 3 does not apply to elections for the office of state Senator or Member of the Assembly of the California Legislature.

Section 16201 provides that no irregularity or improper conduct in the proceedings of the precinct board members, or any of them, is malconduct that avoids an election, unless the irregularity or improper conduct procures the defendant to be declared either elected or one of those receiving an equal and highest number of votes where no one person has received the highest number of votes.

Section 16202 states that, when any election held for an office exercised in and for a county is contested on account of any malconduct on the part of the precinct board of any precinct, or any member, the election cannot be annulled or set aside upon any proof, unless the rejection of the vote of that precinct would change the result as to that office in the remaining vote of the county.

Section 16203 prohibits an election from being set aside on account of illegal votes, unless it appears that a number of illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office.

Section 16204 prohibits an election from being set aside on account of eligible voters being denied the right to vote, unless it appears that a sufficient number of voters were denied the right to vote as to change the result.

Chapter 4 deals with Contests at Primary Elections. Section 16300 provides that irregularity or improper conduct annuls or sets aside a nomination only if it appears that illegal votes in the precinct have been given to the defendant which, if taken from him or her, would reduce the number of legal votes below the number of votes given to the contestant.

Article 1 deals with General Elections. Section 16400 provides that, when an elector contests any election, he or she is required to file with the clerk of the superior court having jurisdiction a written statement setting forth the following:

  • The name of the contestant and that he or she is an elector of the district or county, as the case may be, in which the contested election was held.
  • The name of the defendant.
  • The office.
  • The particular grounds of contest and the section of this code under which the statement is filed.
  • The date of declaration of the result of the election by the body canvassing the returns thereof.

Section 16401 requires a contestant to verify the statement of contest and file it within the specified times after either the declaration of the result of the election or the declaration of the results of any postcanvass risk-limiting audit conducted.

Section 16402 provides that, when the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that in one or more specified voting precincts illegal votes were given to the defendant which, if taken from him or her, will reduce the number of his or her legal votes below the number of legal votes given to some other person for the same office.

Section 16402.5 prohibits an election from being set aside on account of eligible voters being denied the right to vote, unless it appears that a sufficient number of voters were denied the right to vote as to change the result.

Section 16403 prohibits any statement of the grounds of contest from being rejected or the proceedings dismissed by any court for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which the election is contested.

Section 16404 requires the affidavit to specify separately each precinct in which any irregularity or improper conduct took place, or in which a recount is demanded, and the nature of the mistake, error, misconduct, or other cause of contest, and the date of completion of the official canvass of the board of supervisors of the county last making the declaration.

Article 2 deals with Primary Elections. Section 16420 requires the defendant to be named in the affidavit. Section 16421 requires the affidavit to be filed in the office of the clerk of the superior court having jurisdiction within five days after either the completion of the official canvass or the completion of any postcanvass risk-limiting audit conducted by the county last making the declaration.

Article 3 deals with Contests Other than Recounts. Section 16440 specifies that Article 3 applies only to contests on the grounds that:

  • The defendant is not eligible to the office in dispute.
  • The defendant has committed any offense against the elective franchise.
  • A sufficient number of votes 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.

Section 16441 provides that, if the nomination contested is for an office including a political subdivision of more than one county, the superior court of any county within the political subdivision has jurisdiction, and the contestant may file in any county within the political subdivision.

Section 16442 specifies that, after the affidavit is filed with the clerk of the superior court, a copy of the affidavit is required to be personally served upon the defendant or sent to him or her by registered mail in a sealed envelope with postage prepaid, addressed to the defendant at the place of residence named in his or her affidavit of registration.

Section 16443 provides the defendant, after receipt of the copy of the affidavit, may file an answer and a cross-contest affidavit within five days. Section 16444 specifies that no special appearance, demurrer or objection may be taken other than by the affidavits which are considered a general appearance in the contest.

Article 4 deals with Contests Involving a Recount. Section 16460 specifies that Article 4 applies only to contests on the ground that due to mistake, error, or misconduct the votes in any precinct were so incorrectly counted as to change the result.

Section 16461 provides that the superior court of that county in which is located the precinct in which the contestant demands a recount has jurisdiction. Section 16462 specifies that no service other than as provided in this section need be made upon the defendant.

Section 16463 provides that all candidates at any primary election are permitted to be candidates under this code only upon the condition that jurisdiction for the purposes of the proceeding authorized by this article must exist in the manner and under the conditions provided.

Section 16464 states that, at any time within three days after the filing of the affidavit of the contestant to the effect that he or she has sent by registered mail a copy of the affidavit to the defendant, the defendant may file with the clerk of the superior court an affidavit in his or her own behalf.

Section 16465 requires the defendant to appear, either in person or by attorney, at the time and place fixed for the hearing, and take notice of the order fixing the time and place from the records of the court.

Section 16466 prohibits the defendant from making any special appearance for any purpose except as provided. Any appearance whatever of the defendant or any request to the court by the defendant or his or her attorney must be entered as a general appearance in the contest.

Section 16467 requires the court, if the defendant appears, to require the answer to be made within three days from the time and place set for hearing. If the defendant does not appear, the court must note his default, and proceed to hear and determine the contest with all convenient speed.

Chapter 6 deals with Elections Officials’ Duties. Article 1 deals with Contest Procedures at General Elections. Section 16500 provides that, within five days after the end of the time allowed for filing statements of contest, the clerk of the superior court must notify the superior court of the county of all statements filed. The presiding judge is also required to forthwith designate the time and place of hearing, which time cannot less than 10 nor more than 20 days from the date of the order.

Section 16501 requires the clerk of the superior court to issue a citation for the defendant to appear at the time and place specified in the order, which citation is delivered to the sheriff and served upon the party at least five days before the time so specified.

Section 16502 requires the superior court clerk to issue subpoenas for witnesses at the request of any party, which must be served as other subpoenas. The superior court may issue attachments to compel the attendance of witnesses who have been subpoenaed to attend.

Section 16503 requires the contestant to be liable for the expenses involved in making any recount. He or she is required to pay into court in advance each day a sum that the judge finds sufficient to pay all recount expenses that will have accrued by the end of that day.

Article 2 deals with Contest Procedures at Primary Elections in Contests Other than Recounts. Section 16520 requires the clerk of the superior court, within five days after the end of the time for filing affidavits, to present all the affidavits to the presiding judge of the superior court.

Section 16521 provides that the clerk of the superior court, after an order setting a contest for trial, must issue a citation to both parties containing a copy of the order. He or she must deliver it to the sheriff who is required to serve it either upon the parties or leave it at the residences named in the affidavits of registration of the parties.

Article 3 deals with Contest Procedures at Primary Elections in Contests Involving a Recount. Section 16540 provides that, on the fifth day after the end of the time for filing contestant’s affidavit, the clerk of the superior court is required to present the affidavits of the contestant and the defendant and proof of posting of contestant’s affidavit to the presiding judge of the superior court. The court must designate the time and place of hearing, the time for which cannot be less than 10 nor more than 20 days from the date of the order.

Chapter 7 deals with the Court’s Duties. Article 1 deals with General Elections. Section 16600 requires the court to meet at the time and place designated, to determine the contested election, and to have all the powers necessary to the determination.

Section 16601 requires at the trial that the ballots be opened and a recount taken, in the presence of all the parties, of the votes cast for the various candidates in all contests where it appears from the statements filed that a recount is necessary for the proper determination of the contest. The recount must include a tabulation of all names written upon a ballot and which are subject to canvas.

Section 16602 provides that, in the trial and determination of election contests, the court is governed by the rules of law and evidence governing the determination of questions of law and fact. The court may dismiss the proceedings if the statement of the cause of the contest is insufficient, or for want of prosecution.

Section 16603 requires the court to continue in session to hear and determine all issues arising in contested elections. After hearing the proofs and allegations of the parties and within 10 days after the submission thereof, the court shall file its findings of fact and conclusions of law, and immediately thereafter shall pronounce judgment in the premises, either confirming or annulling and setting aside the election. The judgment shall be entered immediately thereafter.

Chapter 8 deals with the Court’s Decisions, Judgment, and Determinations. Article 1 deals with General Elections. Section 16700 provides that the person declared elected by the superior court is entitled to a certificate of election.

Section 16701 provides that, if the elections official has issued any certificate for the same office to any other person than the one declared elected by the court, or if the court finds a tie vote in a general election contest brought under this division, the certificate is annulled by the judgment.

Section 16702 states that, whenever an election is annulled or set aside by the judgment of the superior court, and no appeal has been taken within 10 days, the commission, if any has been issued, is void and the office vacant.

Section 16703 provides that, if in any election contest it appears that another person than the defendant has the highest number of legal votes, the court must declare that person elected.

Article 2 deals with Primary Elections Other than Recounts. Section 16720 provides that, after the court has heard the proofs and allegations of the parties, the court must file its findings of fact and conclusions of law and immediately pronounce judgment either confirming the nomination or setting it aside and decreeing contestant nominated.

Chapter 9 deals with costs. Section 16800 provides that, if the proceedings in a general election contest under this division are dismissed for insufficiency or for want of prosecution, or the election is confirmed by the court, judgment for costs must be rendered against the contestant and in favor of the defendant.

Section 16801 specifies that, where two or more contested elections are joined for the purpose of recounting votes, the costs are required to be apportioned among the parties in the discretion of the court.

Section 16802 provides that primarily each party is liable for the costs created by himself or herself to the officers and witnesses entitled, which costs may be collected in the same manner as similar costs are collected in other cases.

Section 16803 specifies that the provisions relating to costs in contested final elections apply to primary election contests conducted under this division.

Chapter 10 deals with Appeals. Article 1 deals with General Elections. Section 16900 provides that any party aggrieved by the judgment of the court may appeal to the court of appeal. During the pendency of proceedings on appeal, and until final determination thereof, the person declared elected by the superior court is entitled to the office in like manner as if no appeal had been taken.

Article 2 deals with Primary Elections Other than Recounts. Section 16920 provides that either party to a contest may appeal to the district court of appeal of the district where the contest is brought, if the appeal is perfected by the appellant within 10 days after judgment of the superior court is pronounced. The appeal is required to have precedence over all other appeals and be acted upon by the district court of appeal within 10 days after the appeal is filed.

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