The public, as well as the candidates, have a legitimate interest in fair elections. To help insure that elections are fair, there are safeguards during an election, recognized grounds for a contest, and mechanisms in place where individuals can contest the results after the votes are counted.
An automatic recount occurs, if not waived by the defeated candidate within 24 hours, when the margin of defeat in a general election is not more than one-half of one percent of the votes cast for the office.
In addition, there are two other mechanisms which permit citizens or candidates to raise questions about an election other than a formal contest. Both Democratic and Republican parties in Alabama have rules that monitor a candidate’s qualifications before a primary, and an attorney general’s opinion interprets the law to permit a simple recount of an election, at least where voting machines are used.
Those contesting the results of a primary must be qualified electors, must belong to the party whose primary they are contesting and must have legally participated in that primary.
Contesting An Election
Election contests vary between primaries, where parties may have additional rules, and the general election. The following is only a general guide for contest.
Different offices may be contested by different procedures, and some have no contest procedures provided by law. An attorney should be consulted to determine the specific procedures for the contest in question. The rules for contesting general elections divide offices into four categories: (1) statewide offices, (2) state legislators (since each house is the final judge of its own members), (3) judges of circuit or district courts (who try contests for county offices and must, therefore, have separate procedures for their own contests), and (4) offices elected from a single county or its subdivisions. However, several offices are not included in Alabama’s law for contesting elections: Lieutenant Governor, U.S. Senator, and U.S. Representative. In addition, the office of Public Service Commissioner is included with others when the grounds for contests are listed but is not included in any section on procedure. The omission of U.S. senators and representatives is probably due to the fact that each house of Congress is the final judge of its own members’ qualifications.
Primary Election Contests
Standing to Contest. Candidates may contest an election but not because they were candidates. A contest is not simply a dispute between two people for the possession of an office; there is a public interest in the integrity of the electoral process. State law provides that with appropriate grounds any elector can contest a general election. The law is more restrictive for primaries, the principal addition being the requirement that the elector have actually voted in the primary.
Grounds. Elections may be contested only for reasons prescribed by law, and the person bringing a contest must state his reasons in advance.
The grounds for contest are:
The grounds available for contesting an election cover most common election problems. However, simple error or miscalculation is legal grounds for a contest only in primary elections for offices beyond the county level. Recounts have been held as part of discovery procedures in contests.
Notice on Contest. No testimony is to be received of any illegal votes or of the rejection of any legal votes in a contest unless the party complaining has given the adverse party notice in writing of the number of illegal votes, by whom given, for whom given and at what precinct or voting place which the person expects to prove at the trial. This notice must be served at least five days before taking testimony. The person whose nomination is being contested has five days after notice to file objections.
Time and Manner of Contest. Any contest of a county office must be commenced within 24 hours of the results that have been canvassed and their nomination declared by the county executive committee by filing a statement of contest with the chairman of the county committee and a deposit of $50 in cash to cover expenses of the contest.
The chair of the executive committee shall within five days after the contest is filed call the committee together not less than five or more than ten days after filing of contest.
Contest of elections other than for county office are filed with the state party executive committee.
The time limit for calling a meeting of the state executive committee is five to ten days after the filing of the contest.
Each party may prescribe additional rules governing contests.
Filing. A person wishing to initiate a contest must make a statement verified by an official in writing setting forth:
A proper filing is the official beginning date of a contest, and other deadlines are determined from that time.
The procedure for contests of general elections is generally in the court system whereas a contest of primaries lies with the party’s executive committees.
Standing to Contest. Any person who at the time of the election was a qualified voter may file a contest.
Grounds. Elections may be contested on any of the following grounds:
The statement of grounds gives the contestee (person against whom a contest is filed) an opportunity to prepare a defense. It serves to screen out nuisance contests and “fishing expeditions.” The purpose of a contest is to correct flaws in the election which resulted in the wrong person being declared the winner. Therefore, the statement of grounds must allege that except for the specified flaws there would have been a different winner. For example, it is not sufficient to allege that the declared winner received 100 illegal votes if his margin of victory is greater than 100 votes. Suspicions of error or wrongdoings which did not affect the outcome of the election must be handled in some way other than a contest.
In contests of legislative, judicial or county offices where illegal votes are the grounds of the contest, it is a sufficient statement of said cause to allege that illegal votes where given to the person whose election is contested, which, if taken from him will reduce the number of legal votes given to him to or below the number of legal votes given to some other person for the same office.
Notice of Contest. No testimony may be received of any illegal votes or rejection of legal votes unless the complaining party has given the adverse party notice in writing of the number of illegal votes and by whom given and for whom given, at what precinct or voting place and what the contesting party expects to prove at trial. The notice must be personally served ten days before taking testimony.
In the filing, the contestant is required to state grounds, but not necessarily to name individual voters who will be examined. If the contest hinges on illegal votes received or legal votes rejected, the contestant will have to provide a list of individuals involved to the person challenged before taking statements from witnesses, but that step comes after filing. Before filing the contestant does not have access to poll and registration lists from which to obtain names.
Time of Contest. All contests must be commenced within 20 days after the results of the election are declared. At the time of filing, the contesting party must give security for cost.
Filing. Contest statement in writing must set forth:
1. The name of the party contesting and that he or she was a qualified voter when the election was held.
2. The office which the election was held to fill and the time of holding the same.
3. The particular grounds of the said contest.
This statement must be verified by the affidavit of such contesting party to the effect that the same is believed to be true. If the reception of illegal votes is alleged as a cause of contest, it is a sufficient statement of cause to allege that illegal votes were given to the person whose election is contested, which, if taken from that person, will reduce the number of legal votes given to the person to or below the number of legal votes given to some other person for the same office.
Election contests of Senators, Representatives of the Legislature. Contests must be filed in the clerk’s office in the county where the election is held. Testimony depositions and costs for contests is provided by state law.
Election Contests of Circuit Judges and District Judges. Contests must be filed in the office of the judge of probate of the county of residence of the person being elected. Testimony must be taken by deposition as in civil cases. The contest must be heard by the probate court without a jury.
Election Contests of a Judge of Probate, Sheriff, Circuit Court Clerk, and Other County and Municipal Officers of Any City or Town. Contest must be filed in the clerk’s office in the county in which the election was held. Testimony may be by personal attendance of a witness or depositions. The contest is tried as other civil matters in open court without a jury.
Any voter may contest any election for a specified state wide office within ten days after the Speaker of the House of Representatives opens the returns and proclaims the results. The contestant must file with the Speaker a written statement of the grounds and give bond.
Filing. The written statement of the grounds of contest must set forth specifically:
1. The name of the person contesting and that the person was a qualified voter when the election was held.
2. The office which the election was held to fill, and the time of holding the same.
3. The particular grounds of contest.
4. The name of the counties in which any of the alleged grounds of the contest may have occurred, and shall state with particularity the names of the election precinct in each of such counties in which the grounds of contest may be alleged to have occurred.
5. The grounds on which the declared voter of each of the named election precincts in each county contested.
The two houses of the Legislature in joint convention and presided over by the Speaker of the House will constitute the tribunal. A commission of Legislators (3 Senators and 5 Representatives) will take testimony.
Appeals from contests before the judge of probate lie to the Supreme Court within 14 days after judgement. Appeals of contests of judge of probate, sheriff, circuit clerks, other county and municipal offices lie to the Supreme Court within 14 days after judgement. A bond for security and cost must be filed and approved.