This outline summarizes Texas election law with respect to recounts as currently codified. We have made every effort to insure the accuracy of this summary outline, but this material cannot substitute for the statutory source material and relevant interpretive case law and administrative regulations. All statutory references are to the Texas Election Code (the “Code”) unless otherwise noted.
Recount request deadlines occur soon after the canvass, and as noted below, a recount must be requested not later than two days following the canvass.
Q1. If an election results in a tie vote, do the results of the election need to be canvassed prior to an automatic recount being conducted?
A1. Yes. Prior to an automatic recount being conducted, the governing body must first canvass the results of the tie. [Secs. 2.002, 2.023, 2.028, Chapter 216]
Q2. Can the automatic recount be conducted the same day as the canvass?
A2. This depends. The recount supervisor must give “personal notice” to petitioner and all opposing candidates at least 18 hours before the recount is set to begin. This time period can be waived and the recount may start earlier if ALL persons entitled to the notice agree to start earlier. In order for an automatic recount to be ordered, a canvass of the election must first be conducted. [Secs. 213.009, 213.010]
Q3. If an automatic recount is conducted, do the candidates decide whether the automatic recount should be conducted manually or electronically?
A3. The method of counting votes in an automatic recount is the same method of counting used in the election that resulted in the tie vote. If the ballots were counted electronically on election day, then the ballots would be recounted electronically. However, if a candidate wants the recount to be conducted manually and not electronically, then the candidate must submit this in writing and it must be done prior to the automatic recount. [Secs. 212.001, 216.002] If the recount is conducted manually due to the candidate requesting this on their petition, then this would fill the requirements for the automatic recount and an electronic recount would not take place. An automatic recount does not allow for multiple recounts to be conducted.
Q4. What if the candidates that tie each request by petition a manual and electronic recount, which procedure should be done conducted?
A4. The Code is silent on this procedure. However, if there is a manual and electronic recount requested by petition, then our office recommends that a manual recount be conducted.
Q5. Our political subdivision contracted with the county to conduct our election. May the county conduct the recount on behalf of the local political subdivision?
A5. No. A political subdivision may not transfer the duty of a recount to a county. The deposits and petition must be submitted to the presiding officer of the local canvassing authority and not the county. The presiding officer of each local canvassing authority having jurisdiction of election precincts included in recount must manager and supervise the recount for the precincts in that authority’s jurisdiction. [Sec. 213.001]
Q6. Would a deposit or petition filed with the county be valid if the recount is for an election for an office or measure of a local political subdivision?
A6. No. In order for a deposit or petition to be valid, it must be filed with the correct authority. If the deposit or petition was filed with the county for an election for an office or measure of a local political subdivision, the deposition and petition are not valid. [Secs. 212.026, 212.028]
Q7. Our political subdivision contracted with the county to conduct our election. Can the county canvass our results or order an automatic recount if there is a tie?
A7. Generally no. The Code provides that the governing body must canvass their results. The Code does not allow a transfer of canvass duties to a county. However, Section 271.011 of the Code authorizes a joint canvassing authority. If your joint election agreement designated a joint canvassing authority, please be advised that Section 212.026(b) of the Code requires the recount petition to be filed with the presiding officer of your regular canvassing authority. The Code states that an automatic recount can only be ordered by the governing body. The Code does not allow a transfer of an automatic recount to a county.
Q8. May a petition be amended?
A8. Yes. However, a petitioner may only amend the petition once. A petitioner may amend a recount petition to correct a defect, including a defect which includes an insufficient deposit. A correction of an improper deposit is considered an amendment of the petition.
An amended petition must be submitted to the recount coordinator not later than the deadline for submitting the petition or 5 p.m. of the second day after the date notice of the defect under Section 212.029 is received by the petitioner, whichever is later. If the amendment does not correct each defect in the petition of which the petitioner was notified, the recount coordinator shall reject the amended petition. The recount coordinator shall promptly notify the petitioner of each remaining defect and shall enter on the amended petition a description of each defect and the date of notice. A petition may not be amended more than once under this section.
Q9. A petitioner submitted an amended petition or deposit to the correct authority who subsequently discovers a defect on the amended petition. The defect on the amended petition was present in the initial petition which was filed but the petitioner was not notified of the defect prior to filing the amended petition. May the filing authority reject the petition or deposit?
A9. No, the filing authority may not reject the petition or deposit. Just as a candidate/requestor gets one chance to amend the petition, the governing body gets one chance to reject the petition/deposit. [Sec. 212.030]
Q10. Must a petitioner provide a deposit for the full amount of the recount?
A10. The petitioner must file the petition with a deposit which includes the full amount of the recount. The petitioner may request that the recount begin with the counting of ballots cast by mail or ballots cast in person during early voting. The petitioner may then withdraw the petition after those ballots have been counted. can ask to begin with the mail ballots and then withdraw the petition if nothing changes there. Note that a proper withdrawal must comply with Section 212.006 of the Code. Further, after a recount petition has been withdrawn, the petitioner may not petition again for a recount of that election.
Q11. How is the deposit for a county who participates in the countywide polling place program calculated?
A11. The deposit is based in part on the number of election day polling places used or voter registration precincts. Early voting ballots are considered to be one additional polling place or voter registration precinct. The petitioner should determine the total number of voter registration precincts that contained the race or measure that is the
subject of the recount and compare that number to the total number of election day polling places used in the election, then include one additional polling place or voter registration precinct to that number (for early voting ballots) in order to determine the total deposit due.
Q12. If there is a tie vote between candidates, is there a way for the tie vote to be resolved before the automatic recount is conducted?
A12. Yes. Section 2.002 of the Election Code governs tie votes for candidates. In an election requiring a pluralityvote, if two or more candidates for the same office tie for the number of votes required to be elected (based on official canvassed results), a second election to fill the office shall be held. However, before the second election is ordered, the tying candidates may agree to cast lots or withdraw to resolve the tie. If the tie vote is not resolved by a withdrawal or lot drawing, an automatic recount shall be conducted in accordance with Chapter 216 of the Texas Election Code before the second election is held.
Q13. Do 25 different people have to sign the petition for a measure in order to conduct a recount?
A13. No, all 25 people individuals do not need to sign the petition. Pursuant to Section 212.001(6) of the Election Code, a petition for a recount must be signed by the person requesting the recount or, if there is more than one, any one or more of them. The petition may also be signed by an agent of the person requesting the recount.
The 25 persons acting jointly need to provide (for each of the 25) their name, residence address, voter registration number (if authorization to obtain the recount is based on eligibility to vote in the election), and county of registration (if the election covers territory in more than one county). The requestors must designate an agent who is a resident of this state to receive notice under this title on behalf of the persons requesting the recount if there is more than one person requesting the recount; and state the mailing address and at least one telephone number, if any, at which the person requesting the recount or an agent, identified by name, may receive notice given under this title. Sec. 212.001(7)-(9). We note that in order to provide a more condensed form, the official recount form provided by the Secretary of State’s office did not include 25 spaces. The requestors may use the officially prescribed form (PDF) as a template or add a page.
Q14. A recount petition for a measure election was filed by 25 persons acting jointly under Section 212.024 of the Election Code. The 25 persons pooled several checks together to pay for the required deposit when the petition was filed. Is this permitted?
A14. Yes, this is permitted. The deposit must be in the form of cash, cashier's check, or money order made payable to the recount coordinator and must accompany the petition per Section 212.111 of the Code. A personal check cannot be used for a recount. However, as long as the deposit is in a form or forms authorized by the Election Code, and the total amount is correct, there can be more than one cashier’s check or money order, or a combination of those and cash. Please note that courts tend to construe ambiguity in favor of petitioners and those requesting a recount. As such, it is not necessary to make the deposit rule stricter than it needs to be.