Here's How Election Recounts Work in Maryland

element5-digital-2i7Dn2uMEQE-unsplash Maryland’s presidential primary election was last Tuesday, but the Baltimore City Democratic mayoral primary is still too close to call. As of Monday morning (June 8, 2020), City Council President Brandon Scott holds a razor-thin lead — less than 400 votes (0.3%) — over former Mayor Sheila Dixon.

Due to public health concerns surrounding the COVID-19 pandemic, in-person voting was extremely limited and mail-in voting was strongly encouraged. Election results won’t be certified until all pending mail-in and provisional ballots are tallied and all votes are certified, a process that could take some time.

As the Baltimore City Democratic mayoral primary is very close, an overview of Maryland’s election recount procedures seems relevant. Maryland law does not provide for automatic recounts, which in some states are required if the margin between the top two candidates is within certain parameters.

Instead, Maryland law allows a losing candidate or voter to request a recount. The rules and procedures are outlined in Md. Election Law Code Ann. § 12-101 through § 12-107.

What Is a Recount?

A recount is a means of resolving a challenge to the final vote count reported for an election. A recount is limited to votes counted in a single contest and may include votes cast at early voting centers, election day precincts, or by absentee or provisional ballot, as specified in a recount petition made to a local board of elections, the State Board of Elections (SBE), or pursuant to a court order. A recount may include precincts in more than one county.

There are four recount options:

Option 1: A manual tabulation of printed reports from early voting, election day, and the absentee and provisional ballot canvasses. Printed reports from precinct tabulators and high-speed scanners (if available) are examined and manually tabulated.
Option 2: A re-scan of voted paper ballots involved in the recount using precinct tabulators or high-speed scanner (if available) to reproduce early voting, precinct or absentee or provisional ballot canvass totals.
Option 3: A manual recount of voted paper ballots involved in the recount.
Option 4: A manual recount of ballot images of voted ballots involved in the recount.

Petition for A Recount (Candidates for Public or Private Office)

A candidate for public or party office who has been defeated in any election may petition for a recount of the votes cast for the office sought. The petition must be filed within three days after the results of the election have been certified and may request a recount in all precincts or just some precincts. See, Md. Code Ann. Elec. Law § 12-101.

An opposing candidate may file a counter-petition if the results of the election are changed or if the original petition only addresses some precincts and the opposing candidate requests that all precincts be recounted. The counter-petition must be filed within two days after the determination of the recount. See, Elec. Law § 12-102.

Petition for A Recount (Ballot Questions)

On a ballot question, a registered voter eligible to vote on the question may file a petition for a recount. A registered voter may file a counter-petition on that ballot question if the original petition did not specify all precincts or the result is changed. See, Elec. Law § 12-103; 12-104.

Who Is Responsible for the Recount?

The appropriate local board(s) of elections are responsible for conducting recounts. SBE generally monitors the process and provides support to the local board(s).

Who Pays for A Recount?

The petitioner shall pay the cost of the recount requested. SBE will determine an estimate for the approximate cost of the recount. The petitioner is not liable for the costs of the recount if:

The outcome of the election is changed;
The petitioner has gained votes equal to 2% or more of the total votes cast for the contest; or
The margin of difference between the two candidates with the most votes is 0.1% or less of the votes cast for those two candidates.

When filing the recount petition, the petitioner must file a bond with the petition in an amount determined and set by a judge of the appropriate circuit court. If the recount is conducted in only one county, the bond shall be determined and set by a judge of the circuit court of that county.

If the recount is conducted in more than one county, a judge of the circuit court for Anne Arundel County shall determine and set the bond. See, Elec. Law § 12-105.

General Guidelines for Conducting a Recount

Recounts are conducted in accordance with Title 12, Subtitle 1 of the Election Law Article of the Annotated Code of Maryland, Title 33, Subtitle 12 of the Code of Maryland Regulations (COMAR), and State Board instructions in an orderly manner to ensure an accurate recount.
The petitioner or court selects the recount option to verify the vote count.
The local board of elections is responsible for conducting the recount. Elec. Law § 12-106. Counsel to the local board of elections must be present during the recount. SBE monitors and supports the work of a local board conducting a recount.
The decision of the local board to accept or reject any ballot or ballot image may not ordinarily be reexamined. In extraordinary cases, a ballot or ballot image initially allowed by the local board may later be disallowed by the local board because of a disqualifying defect that was not discovered until the recount.
The recount is scheduled according to COMAR 33.12.02.09, or pursuant to any court order.
Notice of the recount is given in accordance with COMAR 33.12.02.03.
The public may be present while the recount is conducted. Candidates, their representatives, observers, and the press, however, are not permitted to speak or otherwise communicate or to interfere with the work of the Recount Teams. Any questions regarding the recount shall be directed solely to the Election Director. COMAR 33.12.03.03C.
An observer wishing to challenge an action taken during the recount may ask the election director to stop the tally temporarily so that the observer may voice his or her challenge. COMAR 33.12.07.03. Additional information about challenges is provided below.
Whenever the room where the recount is being conducted is “unoccupied,” the room must be locked (meal breaks, overnight, etc.). COMAR 33.12.03.04.
Parties to the recount should be kept informed of the results of the recount while it is in progress. COMAR 33.12.03.05. The petitioner may request, at any time, that the recount be stopped. The petitioner will only be responsible for the actual costs incurred for the portion of the recount conducted.

As previously reported on Conduit Street, SBE last month unanimously to authorize the Baltimore City Board of Elections to designate two additional in-person voting locations for the June 2 presidential primary election. The action came a day after Maryland’s legislative leaders sent a letter to SBE requesting additional ballot drop boxes and in-person voting locations due to delays in getting mail-in ballots to voters, particularly in Baltimore City.

Due to health concerns surrounding the COVID-19 pandemic, Governor Larry Hogan in April approved a plan to conduct Maryland’s presidential primary election primarily via mail-in ballots, with limited locations to submit completed ballots at designated drop-off locations or to vote in-person on election day.

Stay tuned to Conduit Street for more information.

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