In Maryland, how does a losing candidate or a voter actually get an election recount after a primary or general election?

Plain-English summary

The State Administrator of Election Laws asked the Attorney General to summarize the statutory recount procedures ahead of the State Board's new recount regulations, following a 1985 rewrite of the law governing contested elections. The office explained that Maryland law offered two different paths to a recount, depending on who was seeking it and what kind of election was involved.

The opinion concluded that a defeated candidate in a primary election had to use the detailed Subtitle 13 procedure, filed with the local board of supervisors within ten days of the election (or two days after the canvass became official) and limited to claims of fraud, mistake, error, or irregularity in the vote count, with the losing candidate normally bearing the recount's cost unless the result changed or the candidate closed the gap by at least 2 percent of the votes cast. A registered voter, or a candidate for whom Subtitle 13 was unavailable, instead had to bring a Subtitle 19 court challenge within 20 days, proving by clear and convincing evidence that an election-related act or omission might have changed the outcome, after which the court had broad discretion to order a new election or "any other relief," including a court-ordered recount, in a general election, and this same Subtitle 19 avenue was, in the office's view, now the only way to obtain a recount at all, since Subtitle 13 applied only to primaries.

Currency note

This opinion was issued in 1986. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Could a Maryland voter who was not a candidate demand a recount just because they were unhappy with a primary result?
No, according to this opinion. The Attorney General concluded that the Subtitle 13 recount procedure could only be invoked by a candidate; a registered voter's only avenue was a Subtitle 19 court challenge, which required proving by clear and convincing evidence that an act or omission related to the election might have changed its outcome.

Was there a specific recount procedure for general elections the way there was for primaries?
No. The opinion concluded that Subtitle 13's recount procedure applied only to primary elections, so any recount in a general election, whether sought by a candidate or a voter, could only come from a court order obtained through a Subtitle 19 challenge.

Did a losing primary candidate have to pay for their own recount?
Generally yes, under the Subtitle 13 procedure. The opinion explained that the petitioner bore the cost of the recount and recanvass unless the result of the election changed, or the petitioner had closed the gap with the winning candidate by at least 2 percent of the total votes cast in the recounted unit, in which case the cost shifted to the municipality or county.

Background and statutory framework

Maryland's Election Code contained two distinct routes to a recount at the time of this opinion. Subtitle 13, "Contested Nominations at Primary Elections," gave a defeated primary candidate a detailed, fast-moving procedure: a petition to the local board of supervisors within ten days of the election specifying grounds of fraud, mistake, error, or irregularity in the count, with the board required to recount the named precincts and the petitioner ordinarily responsible for the cost. Subtitle 19, "Contested Elections," completely rewritten by Chapter 755 of the Laws of Maryland 1985, provided a broader court-based remedy open to any registered voter (and to a candidate who had no other timely and adequate remedy), requiring proof by clear and convincing evidence that an election-related act or omission was unlawful and might have changed the outcome, with a 20-day filing deadline and a court empowered to void an election or order "any other relief that will provide an adequate remedy."

The opinion reasoned that because Subtitle 13 was limited to primaries and to candidates, and because prior case law had established that the former Subtitle 19 only permitted fraud-or-misconduct-based contests rather than recounts as such, Chapter 755's 1985 rewrite of Subtitle 19 should now be understood as the sole avenue for a general-election recount, and the only avenue for a voter's recount request in any election. The opinion also placed the cost of a court-ordered Subtitle 19 recount on the local board rather than the petitioner, reasoning that the statute's demanding clear-and-convincing-evidence standard already screened out weak claims before a recount could even be ordered.

Citations

Statutes:

• Article 33, §1A-1(e)(6) of the Maryland Code (State Board's authority to adopt recount regulations)
• Chapter 625, Laws of Maryland 1985 (granting that regulatory authority)
• Chapter 755, Laws of Maryland 1985 (rewriting Subtitle 19, Contested Elections)
• Article 33, §13-1, §13-2, §13-4(a), §13-4(a)(2), and §13-5 (Subtitle 13 primary recount procedure, grounds, precinct recount, and cost allocation)
• Article 33, §17-4 (voting machine verification procedure incorporated into recounts)
• Article 33, §17-7 (mandamus procedure for board of canvassers errors, distinguished from a recount)
• Article 33, §19-1, §19-2, §19-3, §19-4, and §19-5 (Subtitle 19 contested election procedure, standing, deadlines, and remedies)
• Article 33, §19-5(2) (Subtitle 19 applies to pre-election challenges as well)
• Article 33, §1-1(a)(6) (definition of "election" covering primary, general, special, local, congressional, presidential, or statewide elections)
• Article III, §19 and Article V, §12 of the Maryland Constitution (General Assembly's constitutional jurisdiction over certain election contests)

Cases:

• Mahoney v. Board of Supervisors of Elections, 205 Md. 325, 336 (1954)
• Mahoney v. Board of Supervisors of Elections, 205 Md. 344, 356 (1954)
• Bowling v. Weakly, 181 Md. 496, 500 (1943)
• Dorsey v. Ennis, 167 Md. 444, 450 (1934)
• Clark v. Board of Elections, No. 30925/38/235 (Cir. Ct. for Harford County 1982)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1986/Volume71_1986.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Elections - Recounts - Procedures In Primary And General Elections.

April 28, 1986

Mrs. Marie M. Garber
State Administrator of
Election Laws

You have requested our review of the Election Code provisions pertinent to recounts. As you point out, Chapter 625 of the Laws of Maryland 1985 gave the State Board the responsibility to adopt regulations governing the conduct of recounts. Article 33, §1A-1(e)(6) of the Maryland Code. You asked us to summarize the pertinent statutory provisions as background for these regulations.

I
Introduction

The Election Code contains two sets of provisions under which recounts may be sought.1 Subtitle 13 of Article 33, "Contested Nominations at Primary Elections," specifies in detail a recount procedure for primaries. Subtitle 19, "Contested Elections," which was completely rewritten by Chapter 755 of the Laws of Maryland 1985, specifies the procedure for a court challenge "in any election conducted pursuant to [Article 33]." §19-1. Although Subtitle 19 does not expressly provide for recounts, its scope is broad enough to include requests for recounts.2 However, we cannot predict with confidence precisely how a court would proceed if asked to order a recount under Subtitle 19. The following discussion attempts to answer the questions that are, more or less, answerable.

II
Primary Elections

A. Candidates

If a defeated candidate seeks a recount in a primary election, he or she must follow the procedures for contested nominations in Subtitle 13. Subtitle 19 applies only "[i]f no other timely and adequate remedy is provided by this article." §19-2. If a defeated candidate for nomination asserts that one of the grounds for a Subtitle 13 recount exists, the recount would be a "timely and adequate remedy"; hence, the candidate would not meet the prerequisite for a Subtitle 19 challenge.3

The grounds for seeking a Subtitle 13 recount are specified in §13-2: "acts of fraud, mistake, error or irregularity in making the count or returns by the judges, or ... ambiguity, error, fraud, or mistake or miscalculation by the judges," as reflected in the returns and tally sheets. Thus, a Subtitle 13 recount is the exclusive remedy if those responsible for the tally are alleged by a losing candidate to have failed to carry out that responsibility properly.

The procedures for a recount under Subtitle 13 are rather clearly detailed in the statute. The recount must be sought "within ten days after the day of any primary election, or within two days after the results of the canvass are declared official." §13-1. The contest is initiated by a petition addressed to and filed with the local board of supervisors, specifying the grounds for the challenge. The local board is to recount "those precincts named in the petition." §13-4(a). If balloting has been conducted with voting machines, the recount is to be conducted through the verification procedures specified in §17-4. In jurisdictions using other voting systems, the local board must determine how the recount is to be conducted and must conduct it promptly. §13-4(a)(2).4

The mechanism for the payment of the costs of a Subtitle 13 recount is specified in §13-5:

"The petitioner shall pay the cost of the recount and recanvass in the county, municipality, legislative district or other district or political subdivision, and his bond shall be liable therefor, unless the result of the election in the unit being ordered recounted is changed or unless the petitioner has gained a number of votes over his principle opposing candidate equal to two per centum (2%) or more of the total votes cast in the unit being recounted. In either of such later events, the costs shall be awarded against the municipality or county for which the recount is held."

B. Voters

Registered voters who are not candidates may secure a recount only if one is ordered by a court as a result of an action brought under Subtitle 19. As indicated above, the Subtitle 13 recount procedures may be invoked only by a candidate. §13-1. By contrast, a Subtitle 19 challenge is open to "any registered voter." §19-2. Because Subtitle 19 applies to "any election" [§19-1], it applies to primaries. See §1-1(a)(6) (the term "election" includes "all elections, primary, general, special, local, congressional, presidential, or statewide").

This form of challenge is initiated by a petition filed in court, alleging that:

"any act or omission relating to an election...:
(1) Is inconsistent with this Article or other law applicable to the elections process; and
(2) May change or have changed the outcome of the election." §19-2.5

This basis for challenge includes the grounds for a recount under Subtitle 13 (fraud, mistake, error, irregularity, ambiguity, or miscalculation by election officials), if the irregularity were serious enough to have changed the outcome of the election.6

The timing for a Subtitle 19 challenge is specified in §19-3:

"The Petition referred to in §19-2 of this subtitle shall be filed in the appropriate circuit court within 20 days after the earliest of the following:
(1) The date of the act or omission or, if later, the date the act or omission became known to the petitioner; or
(2) The date the results of the canvass for that election are declared official."7

The procedure is to be that provided by "the generally applicable rules of civil procedure." §19-4.

The court has broad discretion in determining appropriate relief:

"Upon a finding, based upon clear and convincing evidence, that the act or omission involved materially affected the rights of interested parties or the purity of the elections process and:
(1) Might have changed the outcome of an election already held, the court shall:
(i) Declare null and void the election for the office, offices, question, or questions involved and, order that the election be held again on a date set by the court; or
(ii) Order any other relief that will provide an adequate remedy." §19-5.

Hence, the petitioner may seek, and the court may order, if the standard of §19-5 is satisfied, a recount as the form of "other relief [that] will provide an adequate remedy." In our view, the requested recount would, in effect, be a request for an injunction against the local board. See Rule BB 70a.

Subtitle 19 does not specify the procedure to be followed if a court were to order a recount. Certainly, the procedures in Subtitle 13 and §17-4 could be suggested to the court as a clear expression of legislative policy in this regard. Moreover, if the State Board adopts regulations that contain even more detailed, generally applicable recount procedures, a court would very likely order that those procedures be followed.

The question of who is to bear the cost of a recount ordered by a court under Subtitle 19 is likewise not addressed in the statute. In our view, the local board would be required to bear the cost, whatever the results of the recount. Under §19-5, a recount would not be ordered unless the plaintiff proved, with "clear and convincing evidence," that an improper act or omission by election officials not only "materially affected the rights of interested parties or the purity of the elections process" but also "[m]ight have changed the outcome of [the] election." This standard is more rigorous than the showing required for a Subtitle 13 recount. If a plaintiff satisfies the standard of §19-5, and thereby secures the remedy of a recount, we see no basis for shifting the cost of that recount back to the plaintiff, even if the recount ultimately does not change the election's outcome. See also 26 Am. Jur. 2d Elections §363, at 177-78 (1966) (express statutory authority required for reimbursement of expenses incurred in election contest).

III
General Elections

Subtitle 13, by its terms, applies only to primary elections. Thus, any recount in a general election can only be obtained by means of a court order under Subtitle 19.8 This restriction applies to candidates as well as other registered voters. The procedures discussed in Part II B above for the application of Subtitle 19 to a primary election would apply as well in a general election.9

Stephen H. Sachs
Attorney General
Jack Schwartz
Chief Counsel
Opinions and Advice

Editor's Note: The preceding opinion was originally issued as a letter of advice. The State Election Board's recount regulations appear in COMAR 14.02.12.

1 A recount is a process by which the election supervisors review the work of the judges of election and the board of canvassers. In the draft regulations, "recount" is defined as "the entire process of resolving a challenge to the vote count reported for an election." Draft COMAR 14.02.12.02D. "[T]he Election Supervisors, in making a recount of votes, are vested with discretion in determining whether a ballot should be counted or rejected." Mahoney v. Board of Supervisors of Elections, 205 Md. 325, 336 (1954). By contrast, the board of canvassers has purely ministerial duties, with none of the discretionary decisionmaking that a recount may entail. See, e.g., Bowling v. Weakly, 181 Md. 496, 500 (1943). Thus, the mandamus procedure for correction of errors made by the board of canvassers, set forth in Article 33, §17-7, is not really a "recount" and is not further discussed in this letter. See Dorsey v. Ennis, 167 Md. 444, 450 (1934) (writ of mandamus to correct error of board of canvassers properly directed only to that board, not to the board of supervisors, because "the powers and functions of the two boards are different..., although the personnel of both boards is the same").

2 Former Subtitle 19 did not provide a means by which a recount could be sought. Rather, it was intended only to permit an election contest on the basis of alleged "fraud or misconduct." Mahoney v. Board of Supervisors of Elections, 205 Md. 344, 356 (1954). A recount in a general election would arguably have been available only on the basis of provisions outside both Subtitle 13 and Subtitle 19. See Clark v. Board of Elections, No. 30925/38/235 (Cir. Ct. for Harford County 1982). Whatever may have been the status of general election recounts prior to the enactment of Chapter 755, we believe that Subtitle 19 should now be viewed as the vehicle for such a recount. See Part III below.

3 The actions of a local board in conducting a Subtitle 13 recount "are as fully subject to [judicial] review as the decisions of any administrative agency." Mahoney v. Board of Supervisors of Elections, 205 Md. at 336.

4 Although §13-4(a)(2) refers only to the punchcard ballot system used in Montgomery County, the obvious intent is to require that the recount methodology be appropriate to any electronically tabulated or similar voting system that has been approved by the State Board under Subtitle 16B.

5 Although a petition under Subtitle 19 that seeks a recount obviously would be filed only after an election, the procedure under Subtitle 19 applies as well to preelection challenges. See §19-5(2).

6 Subtitle 19 certainly extends to other matters (for example, a candidate's violation of law), but a recount would ordinarily be an appropriate remedy only if the act or omission involved the tally of votes.

7 This deadline is considerably longer than that in §13-1. Moreover, a court could order a recount only after an evidentiary hearing. Because the time between the primary and the general election in gubernatorial election years is so short, a Subtitle 19 recount of primary election results might well not be a practicable remedy unless the parties and the court moved the case with the utmost speed.

8 See note 2 above.

9 In our view, the conduct of a recount under Subtitle 19 is not inconsistent with the General Assembly's constitutional jurisdiction over election contests for certain offices. See Article III, §19 and Article V, §12 of the Maryland Constitution. See generally Mahoney v. Board of Supervisors of Elections, 205 Md. at 356 ("[A] recount was not designed to permit candidates to seek out evidence of fraud or misconduct to be made the basis of an election contest."). Cf. 63 Opinions of the Attorney General 370 (1978) (House of Delegates is exclusive judge as to residency of successful candidate).