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| Home > Statutes > Usa Oregon |
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USA Statutes : oregon
Title : TITLE 23 ELECTIONS
Chapter : Chapter 258 Election Contests; Recounts
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As used in this chapter:
(1) "Candidate" means a candidate for nomination or election to any
elective office.
(2) "Contestant" means any person who files a petition of contest
under ORS 258.036.
(3) "Contestee" means:
(a) In a contest of the nomination of a person for an office or the
election of a person to an office, all candidates for the nomination or
office, other than a candidate who is a contestant.
(b) In a contest of the approval or rejection of a measure proposed
by initiative petition, the chief petitioner of the petition, unless the
chief petitioner is a contestant, and any other person involved in the
cause of the contest.
(c) If the cause of the contest is ORS 258.016 (6) or (7), the
county clerk.
(4) "County clerk" means the county clerk or the county official in
charge of elections.
(5) "Elector" means an individual qualified to vote under section
2, Article II, Oregon Constitution.
(6) "Full recount" means a recount of all the precincts in which
votes were cast for the nomination or office for which a candidate
received a vote or on any measure that appeared on the ballot.
(7) "Measure" includes any of the following submitted to the people
for their approval or rejection at an election:
(a) A proposed law.
(b) An Act or part of an Act of the Legislative Assembly.
(c) A revision of or amendment to the Oregon Constitution.
(d) Local, special or municipal legislation.
(e) A proposition or question.
(8) "Partial recount" means a recount conducted in a number of
precincts equal to the greater of:
(a) Five percent of the precincts in which votes were cast for the
nomination or office for which a candidate received a vote or on any
measure that appeared on the ballot; or
(b) Three specified precincts in which votes were cast for the
nomination or office for which a candidate received a vote or on any
measure that appeared on the ballot. [Formerly 251.015; 1983 c.392 §7;
1985 c.186 §1; 1995 c.607 §52; 2001 c.965 §28]ELECTION CONTESTS The
nomination or election of any person or the decision on any measure may
be contested by any elector entitled to vote for the person or measure,
by any person who was a candidate at the election for the same nomination
or office, by the Secretary of State if the contest involves a state
measure or a candidate for whom the Secretary of State is the filing
officer, or by the county clerk who conducted the election only for the
following causes:
(1) Deliberate and material violation of any provision of the
election laws in connection with the nomination, election, approval or
rejection.
(2) Ineligibility of the person elected to the office to hold the
office at the time of the election.
(3) Illegal votes.
(4) Mistake or fraud in the canvass of votes.
(5) Fraud in the count of votes.
(6) Nondeliberate and material error in the distribution of the
official ballots by a local elections official, as that term is defined
in ORS 246.012, or a county clerk.
(7) A challenge to the determination of the number of electors who
were eligible to participate in an election on a measure conducted under
section 11 (8), Article XI of the Oregon Constitution. [Formerly 251.025;
1983 c.170 §1; 1993 c.493 §48; 1997 c.541 §313a; 2001 c.965 §29] (1) The nomination
or election of a person shall not be set aside for any cause listed in
ORS 258.016 (3) to (5) unless:
(a) The person nominated or elected had knowledge of or connived in
the cause of the contest; or
(b) The number of votes taken from the person nominated or elected
by reason of the cause of the contest would reduce the legal votes of the
person below the number of legal votes given to another person for the
same nomination or office.
(2) The nomination or election of a person shall not be set aside
for the cause described in ORS 258.016 (6) unless it can be determined
that the nomination or election would have been given to one of the
candidates other than the candidate nominated or elected if all votes not
cast or tallied due to the error had been cast or tallied for the other
candidate.
(3) The approval or rejection of a measure shall not be set aside
unless it appears that:
(a) The number of votes taken from the approval or rejection by
reason of the contest would reverse the outcome of the election; or
(b) The outcome of the election would have been reversed if all
votes not cast or tallied due to an error under ORS 258.016 (6) had been
cast or tallied for approval or rejection of the measure. [Formerly
251.035; 1983 c.170 §2](1) Not later than the 40th day after the election or the
seventh day after completion of a recount of votes cast in connection
with the nomination, office or measure, any person authorized to contest
a result of the election may file a petition of contest. The petition
shall be filed with:
(a) The Circuit Court for Marion County if the petition involves a
state measure, a candidate for election to the office of elector of
President and Vice President of the United States or a candidate for
nomination or election to the office of United States Senator, United
States Representative in Congress, Governor, Secretary of State, State
Treasurer, Attorney General, Commissioner of the Bureau of Labor and
Industries, Superintendent of Public Instruction or a position of judge
on the Oregon Supreme Court, the Oregon Court of Appeals or the Oregon
Tax Court.
(b) The circuit court for the county where a majority of the
electors in the electoral district reside if the petition involves a
candidate for nomination or election to the office of state Senator,
state Representative, circuit court judge or district attorney.
(c) The circuit court for the county in which the filing officer is
located if the petition involves a candidate for nomination or election
to county, city or district office or a county, city or district measure.
If a district is located in more than one county, the petition shall be
filed with the circuit court for the county in which the administrative
office of the district is located.
(2) The petition shall be verified in the manner required for
verification of complaints in civil cases and shall specify:
(a) The cause of the contest; and
(b) The names of all contestees. [Formerly 251.045; 1995 c.607 §53;
2001 c.965 §30] (1) The
prevailing party in the contest proceeding shall recover costs,
disbursements and reasonable attorney fees at trial and on appeal against
the losing party. However, if the cause of the contest is a mistake in
the canvass of votes and the contestant prevails, the cost of any
recanvass of votes shall be paid by:
(a) The county for a contest of a state or county nomination,
office or measure;
(b) The city for a contest of a city nomination, office or measure;
or
(c) Any other political subdivision or public corporation for a
contest of such a subdivision or corporation nomination, office or
measure.
(2) In a contest under ORS 258.016 (7), costs, disbursements and
attorney fees shall not be assessed against the county clerk unless the
court makes a specific finding of fault against the county clerk.
[Formerly 251.060; 1981 c.897 §44; 1991 c.331 §50; 1995 c.607 §53a; 1997
c.541 §313c](1) Except as provided in
subsection (2) of this section, when a contestant files a petition of
contest with the circuit court described under ORS 258.036 (1), the
contestant shall, within three business days of filing the petition,
publish a notice stating that the petition has been filed and identifying
the date of the deadline described in this subsection for filing a motion
to intervene. The notice shall be published at least once in the next
available issue of a newspaper of general circulation published in the
county where the proceeding is pending. Jurisdiction over the election
contest shall be complete within 10 days after the notice is published as
provided in this section. Any person interested may at any time before
the expiration of the 10 days appear and contest the validity of the
proceeding, or of any of the acts or things enumerated in the proceeding.
(2) Subsection (1) of this section does not apply if the contest
involves a state measure, the election of a candidate to the office of
elector of President and Vice President of the United States or the
nomination or election of a candidate to the office of United States
Senator, United States Representative in Congress, Governor, Secretary of
State, State Treasurer, Attorney General, Commissioner of the Bureau of
Labor and Industries, Superintendent of Public Instruction or a position
of judge on the Oregon Supreme Court, the Oregon Court of Appeals or the
Oregon Tax Court.
(3) Not later than two business days after a petition of contest is
filed with the circuit court, the contestant shall serve a copy of the
petition by certified mail on each contestee. If the Secretary of State
or county clerk is not a contestee, not later than one business day after
a petition of contest is filed with the circuit court, the contestant
shall file a copy of the petition with:
(a) The Secretary of State if the petition involves a candidate for
state office or a state measure; or
(b) The county clerk if the petition involves a candidate for
county, city or district office or a county, city or district measure. As
used in this paragraph, "county clerk" includes the county clerk of the
county in which the administrative office of a city or district is
located regarding a measure or a candidate for an office to be voted on
in a city or district located in more than one county.
(4) The circuit court shall fix a time for the hearing by the
circuit court of the contest proceeding, and not later than the fifth day
before the hearing shall give written notice of the hearing to each party
to the proceeding. In fixing the time for the hearing, the court shall
consider the dates set in any notice published under subsection (1) of
this section and the dates of service on the contestees. The contest
proceeding shall take precedence over all other business on the circuit
court docket.
(5) The circuit court shall hear and determine the proceeding
without a jury and shall issue written findings of law and fact. The
practice and procedure otherwise applicable to civil cases shall govern
the proceeding, except that the contestant has the burden of proof by
clear and convincing evidence. [Formerly 251.070; 1995 c.607 §54; 2001
c.965 §31] (1)
After the contest hearing, the circuit court shall render a judgment
affirming or setting aside the nomination or election of the person for
or to the office.
(2) If the judgment sets aside the nomination of a person, it also
shall declare that the nomination is vacant.
(3) Except as provided in subsection (4) of this section, if the
judgment sets aside the election of a person, the incumbent shall remain
in office until a successor is elected.
(4) If the judgment sets aside the election of a person to an
office sought by an incumbent who was defeated, the office shall be
declared vacant.
(5) If the judgment under ORS 258.026 (2) sets aside the nomination
or election of a person to a city office or as a member of the board of a
district defined in ORS 255.012, the names of the candidates for the
office shall be resubmitted to the electors at a special election held on
the next available election date. The county of the county clerk or the
local elections official who committed the error in the distribution of
the official ballots shall bear the cost of the election. [1979 c.190
§320; 1983 c.170 §3](1) Except as provided in
subsection (4) of this section, after the contest hearing, the circuit
court shall render a judgment affirming or setting aside the approval or
rejection of the measure.
(2) If the judgment sets aside the approval or rejection of a
measure, the circuit court shall direct the measure to be resubmitted at
a special election held on one of the dates specified in this subsection,
as set by the court. In setting the election date, the court shall
provide sufficient time for adequate notice to be given. The special
election may be held on any of the following dates:
(a) The second Tuesday in March;
(b) The third Tuesday in May;
(c) The third Tuesday in September; or
(d) The first Tuesday after the first Monday in November.
(3) The county of the county clerk or the local elections official
who committed the error in the distribution of the official ballots shall
bear the cost of the special election.
(4) In a contest under ORS 258.016 (7), the court shall determine
whether the challenge to the determination of the number of electors who
were eligible on election day to participate in the election on a measure
conducted under section 11 (8), Article XI of the Oregon Constitution, is
valid. In making the determination, the court shall rely on the
provisions of ORS chapter 247 and shall receive testimony from the county
clerk regarding the clerk's administration of ORS chapter 247. If, after
a contest hearing, the court determines that the challenge to the
determination of the number of electors who were eligible to participate
is valid and that the change in the number of electors eligible to
participate is sufficient to change the outcome of the election on the
measure, the court shall order the county clerk to make a new
determination of the number of eligible electors and to certify the
results of the election based on the new determination. [1979 c.190 §321;
1983 c.170 §4; 1985 c.808 §47; 1989 c.923 §18; 1991 c.71 §5; 1993 c.713
§54; 1995 c.712 §117; 1997 c.541 §313b] Any party to the contest
proceeding may appeal from the judgment rendered by the circuit court to
the Court of Appeals in the same manner as appeals in civil cases are
taken. The appeal shall take precedence over all other business on the
docket. [Formerly 251.090]RECOUNTS The
Secretary of State shall be responsible for insuring that the procedures
to be used in conducting election recounts assure an accurate recount in
the shortest time at the least expense. Whenever demands are filed for a
recount of a vote for both a measure and a nomination or office, or for
more than one measure, nomination or office, the Secretary of State may
determine the most appropriate procedure to be used in conducting the
recounts simultaneously. [Formerly 251.625](1) A candidate or an officer
of a political party on behalf of a candidate of the political party may
file a demand requiring the Secretary of State to direct that a recount
be made in specified precincts in which votes were cast for the
nomination or office for which the candidate received a vote.
(2) An elector may file a demand requiring the Secretary of State
to direct that a recount be made in specified precincts in which votes
were cast on any measure which appeared on the ballot.
(3) A county clerk may file a demand requiring the Secretary of
State to direct that a recount be made in specified precincts in which
votes were cast for the nomination or office for which a candidate
received a vote or on any measure that appeared on the ballot. The cash
deposit requirement of subsection (5) of this section shall not apply to
a demand made under this subsection. The cost of a recount conducted
under this subsection shall be paid by the county of the county clerk
making the demand.
(4) Except as provided in subsection (9) of this section, the
person making a demand for a recount may, in the first demand, specify a
partial or a full recount. A person making a demand for a partial recount
shall specify the precincts in which votes were cast for the nomination
or office or on the measure to be recounted. If in the first demand the
person requested a partial recount, the person may file a supplemental
demand for a recount of all the remainder of the precincts.
(5) Except as provided in subsections (3) and (6) of this section,
each demand shall be accompanied by a cash deposit of $15 for each
precinct to be recounted up to a maximum of $8,000 for a recount of all
precincts in the state on a measure or for a nomination or office. The
Secretary of State may retain the deposit for not more than 60 days after
the election for which the recount was demanded, without depositing it in
the General Fund.
(6) Upon application from a county clerk, the Secretary of State
may waive the cash deposit requirement of subsection (5) of this section
if, after the first demand, it appears that due to nondeliberate and
material error by a local elections official, as defined in ORS 246.012,
or a county clerk, the outcome of an election on a candidate or measure
will be changed. The cost of a recount conducted under this subsection
shall be paid by the county of the county clerk or the county of the
local elections official who committed the error.
(7) Each demand shall be in the form and shall contain the
information prescribed by the Secretary of State, including the names and
addresses of all persons and organizations providing any part of the cash
deposit and the amount provided by each.
(8) Except as provided in subsection (9) of this section, the first
demand shall be filed in the office of the Secretary of State not later
than the 35th day and a supplemental demand not later than the 45th day
after the date of the election in which votes were cast for the
nomination, office or measure.
(9) A demand for a recount made under this section on behalf of the
electors of presidential and vice presidential candidates shall be for a
full recount only and shall be filed no later than five business days
after the Secretary of State declares the result of the election under
ORS 254.555. [Formerly 251.520; 1981 c.142 §5; 1981 c.173 §37; 1995 c.607
§55; 1999 c.318 §40; 2001 c.965 §32](1) Except as provided in subsection
(2) of this section, the person making a demand for a recount shall be
bound by the original official returns unless the person demands a full
recount.
(2) If a demand for a partial recount is made by a county clerk
under ORS 258.161 (3), votes recounted in the precincts specified by the
county clerk may be combined with votes in other precincts that were not
recounted to determine the official returns of the election. [1979 c.190
§325; 1999 c.318 §41; 2001 c.965 §33] (1) Except
as provided in subsection (4) of this section, only one recount shall be
made for any measure, nomination or office for which a recount may be
demanded.
(2) If two or more demands for the recount of the same measure are
filed with the Secretary of State the demand first received by the
Secretary of State shall be considered the demand for a recount.
(3) If two or more demands for the recount of the same nomination
or office are filed with the Secretary of State the demand received from
or on behalf of the losing candidate receiving the highest number of
votes shall be considered the demand for a recount.
(4) If the demand for a recount under subsection (2) or (3) of this
section specifies a partial recount, any elector may file a supplemental
demand as provided in ORS 258.161. [Formerly 251.540; 1985 c.808 §48;
2001 c.965 §34]
(1) After a recount demand is filed, the Secretary of State shall direct
the official who conducted the election or the clerk of any county
containing precincts in which ballots were cast on the measure or for the
nomination or office specified in the demand for a recount to conduct a
recount in the precincts specified in the demand.
(2) If the demand for a recount of votes cast for a nomination or
office is filed, the Secretary of State, not later than the third day
after the filing of the first demand, shall notify the affected
candidates by certified or registered mail that a recount is to be made
in the precincts specified in the demand.
(3) The official who is to conduct the recount, within a reasonable
time before the recount, shall notify the affected candidates or the
individual filing the demand for recount for a measure of the date, time
and place of the recount. [Formerly 251.550] (1) After
receiving notice from the Secretary of State that a recount is to be
made, the official directed to conduct the recount shall appoint counting
boards from the list of electors qualified to vote in the county in which
the recount is demanded. The official shall appoint as many counting
boards as may be necessary to complete the recount within the shortest
practicable time after the demand is filed. No member of the counting
boards shall have been a candidate for any office voted upon at the
election. The members of a counting board shall not all be members of the
same political party.
(2) Each member of the counting board shall be compensated at a
rate not less than the federal or state minimum wage, whichever is
higher. [Formerly 251.560; 1981 c.173 §38; 1993 c.493 §49; 1999 c.410 §66](1) The ballot boxes containing the ballots to
be recounted shall be opened by the official directed to make the recount
only in the presence of the counting board and the persons referred to in
this section.
(2) The counting board shall conduct the recount by hand and, if
requested, permit:
(a) In the instance of a nomination or office, an affected
candidate or an elector authorized in writing by an affected candidate,
and an elector authorized in writing by each major or minor political
party to be present to watch the recount.
(b) In the instance of a measure, one elector advocating and one
elector opposing the measure to be present to watch the recount.
(3) For ballots cast using a voting machine:
(a) The county clerk shall deposit the paper record copy recorded
by the machine into the ballot box; and
(b) The paper record copies are the ballots to be recounted under
this section. [Formerly 251.570; 2001 c.965 §35; 2005 c.731 §6; 2005
c.797 §69](1) The recount shall be
completed as soon as practicable after the demand is filed.
(2) In the case of a full recount, the official directed to conduct
the recount, as soon as practicable after completion of the recount,
shall:
(a) Certify the abstract of votes recounted to the Secretary of
State.
(b) Certify the abstract of votes recounted to the official issuing
certificates of nomination or election regarding a nomination or office,
or to the official responsible for issuing a proclamation regarding a
measure. The official then shall issue the appropriate certificate or
proclamation.
(c) Notify by mail the person who filed the demand for the recount
of the result and the cost of the recount.
(3) Not later than the 30th day after the completion of the recount
the official directed to conduct the recount shall certify the cost of
the recount to the Secretary of State. [Formerly 251.590; 2001 c.965 §36] (1)
The certification of costs of a recount required in ORS 258.221 (3) may
include:
(a) Compensation of recount boards.
(b) Compensation of additional employees required to conduct the
recount and overtime payment to regular employees who are eligible to
receive such payments.
(c) Postage and telephone charges directly related to the recount.
(d) The costs for security.
(2) The certification of costs of a recount required in ORS 258.221
(3) shall not include:
(a) General administrative costs.
(b) Allowances for meals or lodging. [Formerly 251.630; 2001 c.965
§37] (1) In the case
of a full recount, the abstract of votes resulting from the recount shall
be the official return of the election.
(2) Except as provided in ORS 258.171 (2), in the case of a partial
recount, the abstract of votes recounted shall not be certified and the
abstract of votes resulting from the original count shall be the official
return of the election. [Formerly 251.600; 2001 c.965 §38] (1) If the abstract of votes
resulting from a full recount shows that the outcome of the election on
the measure was changed or that a candidate for whose benefit the recount
was demanded received a plurality of the votes, the deposit required by
ORS 258.161 shall be refunded by the Secretary of State to the person who
filed the demand.
(2) The Secretary of State shall transfer the deposit required by
ORS 258.161 and any additional amount paid pursuant to subsection (5) of
this section to a special account in the General Fund if:
(a) A full recount was not conducted; or
(b) The abstract of votes resulting from a full recount shows that:
(A) The outcome of the election on the measure was not changed; or
(B) A candidate for whose benefit the recount was demanded did not
receive a plurality of the votes.
(3) Moneys deposited in the special account under subsection (2) of
this section are continuously appropriated for the purpose of reimbursing
the county, city or other political subdivision or public corporation for
the cost of the recount and paying any refunds required by subsection (4)
of this section.
(4) Upon receipt from the official directed to conduct the recount
of a signed certificate itemizing the cost of the recount, the Secretary
of State shall request the Oregon Department of Administrative Services
to issue warrants for the amount so certified. Any portion of the deposit
required by ORS 258.161 remaining after the cost of the recount has been
paid shall be refunded to the person who filed the demand upon receipt of
a warrant from the Oregon Department of Administrative Services showing
the amount of the refund to which the person is entitled.
(5) If the cost of the recount exceeds the amount of the deposit
required by ORS 258.161, and if the person who filed the demand does not
qualify for a refund under subsection (1) of this section, the person
shall pay to the Secretary of State the amount of the excess cost.
[Formerly 251.610; 1983 c.740 §66; 2001 c.965 §39; 2005 c.755 §7]If the demand for recount is made for a multicounty or
statewide election, the Secretary of State also may collect those costs
allowed in ORS 258.231 (1) which the secretary incurs as a result of the
recount. [Formerly 251.635]If two or more recounts are conducted simultaneously,
payment of the costs of the recount in counties where the same precinct
or precincts are designated for recount by more than one person shall be
equitably apportioned among those persons. With the advice of the
official directed to conduct the recount, the Secretary of State shall
determine the apportionment of costs. [Formerly 251.615](1) The Secretary of State shall order a full recount of the votes cast
for nomination or election to a public office for which the Secretary of
State is the filing officer, and the county clerk who conducted the
election shall order a full recount of the votes cast for nomination or
election to any other public office if the canvass of votes of the
election reveals that:
(a) Two or more candidates for that nomination or office have an
equal and the highest number of votes; or
(b) The difference in the number of votes cast for a candidate
apparently nominated or elected to the office and the votes cast for the
closest apparently defeated opponent is not more than one-fifth of one
percent of the total votes for both candidates.
(2) The cost of a full recount conducted under this section shall
be paid by the county for a county office, by the city for a city office,
by the special district for a special district office or by the state for
any other office. [Formerly 251.640; 1985 c.808 §49; 1993 c.493 §50; 2001
c.965 §40](1) If the official canvass of votes of an election reveals that the
difference in the number of votes cast for or against any measure is not
more than one-fifth of one percent of the total votes cast for and
against the measure, the Secretary of State, in the case of a measure for
which the Secretary of State is the filing officer, and the county clerk
who conducted the election in the case of any other measure shall order a
full recount of all votes cast for the measure.
(2) The cost of a full recount conducted under this section shall
be paid by the state, county, city or special district for which the
measure was proposed.
(3) This section does not apply if the election on the measure is
an election at which at least 50 percent of registered voters eligible to
vote in the election must cast a ballot under section 11, Article XI,
Oregon Constitution, and less than 50 percent of registered voters
eligible to vote in the election cast ballots. [Formerly 251.645; 1993
c.493 §51; 1997 c.541 §313e; 2001 c.965 §41]Immediately following the completion of
the official canvass of votes for any election, the elections officer who
prepared the canvass shall notify the Secretary of State of any election
subject to an automatic full recount under ORS 258.280 and 258.290.
[Formerly 251.650; 2001 c.965 §42]
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