Section 135 Petition for recount; filing; contents; examination; recounts; notice; amendment of records
Section 135. A petition for a recount may be filed with the city or town clerk on or before five o’clock post meridian on the sixth day following a primary or preliminary election, or on or before five o’clock post meridian on the tenth day following an election, in a ward of a city or in a town, if ten or more voters of such ward or town, except a town having more than twenty-five hundred voters and voting by precincts and except Boston, and in such a town voting by precincts ten or more voters of each precinct in which a recount is petitioned for and in Boston fifty or more voters of a ward, shall sign in person as registered, or substantially as registered, and shall state the address where he is currently living with the street and number, if any, and his address on January the first preceding. In the case of any petition for a recount hereunder, the registrars need not certify a greater number of names than is required hereby for the holding of the recount, increased by one fifth thereof.
Such petition shall be on a form furnished by the state secretary, shall be accompanied by a written request for a recount signed by the candidate on whose behalf the recount is being conducted, shall be sworn to by one of the subscribers before a notary public, and shall contain a statement that they have reason to believe and do believe that the records, or copies of records, made by the election officers of such ward or town, or of such precinct in a town having more than twenty-five hundred voters and voting by precincts, are erroneous, specifying wherein they deem such records or copies thereof to be in error, or that challenged votes were cast by persons not entitled to vote therein, and that they believe a recount of the ballots cast in such ward, precinct or town will affect the nomination or election of one or more candidates voted for at such primary, preliminary election or election, specifying the office or will affect the decision of a question voted upon at such election, specifying the question. The city or town clerk shall forthwith transmit to the registrars of voters such petition and statement, and the envelopes or containers containing all records of the election, including the sealed envelopes containing the ballots cast, the original tally sheets, the envelopes containing the spoiled and unused ballots, the voting lists used at the election, the certificates issued to voters omitted from the voting list, the precinct clerk’s election record, the absentee ballot envelopes and applications for such absentee ballots as were cast at the election, the lists of voters who were sent absentee ballots with the notation as to whether such ballots were cast or rejected or whether such voter voted in person, and the sealed envelopes containing the ballots rejected as defective. In the case of a recount of the votes for an office any candidate for such office shall, upon his request, be permitted to obtain and examine the record books and the clerk of the precinct’s book, so called, where used, and may require that a count be made of the number of persons checked as having voted on the voting lists used at each precinct, and that an examination be made of the figures on each ballot box register.
The registrars shall first examine the petition and statement and attach thereto a certificate of the number of names of subscribers which are names of registered voters in such ward, precinct or town and shall then, without unnecessary delay, but not before the last hour for filing petitions for recounts as aforesaid, open the envelopes or containers, except envelopes containing absentee ballots rejected as defective, recount the ballots cast and determine the questions raised, and shall examine all ballots cast by or for challenged voters, and all provisional ballots received under section 76C and reject any such ballot cast by or for a person found not to have been entitled to vote. They shall examine the sealed inner ballot envelopes rejected as defective as to the reasons for rejection and shall determine whether each such ballot should have been rejected or accepted. The registrars’ determinations shall be subject to protest as said envelopes are examined at the recount. If the registrars determine to accept an inner envelope originally rejected as defective, they shall open such envelope and count the ballot therein, and shall attach such envelope to such ballot. The registrars shall endorse on the back of every cast ballot subsequently rejected and on the back of every inner ballot envelope of absentee ballots originally rejected as defective the reason for such rejection or subsequent acceptance and said statement shall be signed by a majority of said registrars. A member of the board of registrars shall endorse over his signature on the back of each protested ballot the block number of which it is a part and the office for which the vote is protested, together with the name of the candidate for whom the vote is counted.
The registrars at the recount shall determine how protested votes are to be counted and the registrars shall assign tally clerks to count the votes.
In cases of recounts at elections where voting machines have been used the city or town clerk shall transmit to the registrars the records of the election officers, the envelopes or containers containing the total sheets showing the votes recorded by the voting machines, cast by challenged voters and cast by absent voting ballots, respectively, and containing the ballots cast by challenged voters and the absent voting ballots cast, and all other material specified in section one hundred and thirty-five A.
State-wide recounts in cases of offices to be filled or questions to be voted upon at the state election by all the voters of the commonwealth may be requested as provided in the foregoing provisions of this section so far as applicable, except that any petition therefor shall be on a form approved and furnished by the state secretary, shall be signed in the aggregate by at least one thousand voters, and shall be submitted on or before five o’clock post meridian of the tenth day following such election to the registrars of voters of the city or town in which the signers appear to be voters, who shall forthwith certify thereon the number of signatures which are names of registered voters in said city or town, and except that said petitions for recount shall be filed with the state secretary on or before five o’clock post meridian of the fifteenth day following such election. The state secretary shall hold such petitions for recount until after the official tabulation of votes by the governor and council and if it then appears that the difference in the number of votes cast for the two leading candidates for the office, or in the number of affirmative and negative votes on a question, for which recount is desired is more than one half of one per cent of the total number of votes cast for such office or on such question, the petitions for recount shall be void. If such difference in the votes so cast appears to be one half of one per cent or less of the total votes cast for such office or on such question, he shall forthwith order the clerk of each city and town of the commonwealth to transmit forthwith, and said clerk shall so transmit, the envelopes or containers containing the ballots, sealed except in the case of those containing ballots which have already been recounted in respect to said office or question under authority of this section, to the registrars of the city or town who shall, without unnecessary delay, open the envelopes or containers, recount the ballots cast for said office or on such question and determine the questions raised. The registrars shall examine the sealed inner ballot envelopes originally rejected as defective and shall proceed as provided in the third paragraph. The registrars determinations shall be subject to protest as said envelopes are examined at the recount. If a state-wide recount is petitioned for, all ballots cast at a state election shall be held, except as otherwise provided herein, by the city and town clerks until the expiration of sixty days after said election.
District-wide recounts in cases of offices to be filled or questions to be voted upon at state elections, except by all the voters of the commonwealth, may be requested in the same manner as state-wide recounts, except that the petition shall be signed by one-fourth the number of voters required to sign nomination papers for state primary candidates in the appropriate district under section forty-four of chapter fifty-three and provided that the difference in the numbers of votes cast for any candidate seeking an office or nomination and the candidate who is the apparent winner of that office or nomination, or in the number of affirmative and negative votes on a question, for which the recount is desired is not more than one-half of one per cent of the total number of votes cast for such office or nomination or on such question. State-wide and district-wide recounts may be requested for state primaries, and for presidential primaries except for ward and town committees, in the same manner as for state elections, except that the petition shall be submitted to the registrars of voters on or before the third day following the primary, certification shall be completed on or before the sixth day following the primary, and the petition shall be filed with the state secretary on or before the seventh day following the primary. In the case of such state-wide and district-wide recounts for state primaries, the state secretary shall order the recount conducted as soon after the filing of the petition as it appears to him that the difference in votes is within the margin specified in this paragraph.
The board of registrars of voters in any city or town shall set the date of any recount for an office or question which appeared on a state primary or state election ballot, except for state-wide offices to be filled or on such questions to be voted on at the state election by all the voters of the commonwealth, for a date not more than six days after the last say for filing a recount petition for a primary, and not more than ten days after the last day for filing a recount petition for an election. Said board shall forthwith, upon setting the date of any such recount, notify the state secretary in writing of the office to be recounted, the time and place of the recount and the number of observers to which each candidate is entitled. Said board shall give not less than three days written notice to each candidate for the office for which a recount was petitioned under authority of this section, or to such person as shall be designated by the petitioners for any recount of ballots cast upon question submitted to the voters, of the time and place of making the recount, and each such candidate or person representing petitioners as aforesaid shall be allowed to be present and to witness such recount at each table where a recount of the ballots affecting such candidate is being held, accompanied by one or more counsel, if he so desires. Each such candidate or person may also be represented by agents, appointed by him or his counsel in writing, sufficient in number to provide one such agent for each officer counting or checking such ballots; provided, that no such candidate or person may have more than one such agent, other than his counsel, witnessing the work of any one officer at any one time. Each such candidate, person, counsel and agent shall have the right to watch and inspect the ballots, tally sheets and all other papers used in the recount, and to watch every individual act performed in connection therewith. In the case of a recount of ballots cast for offices which are filled by all the voters of the commonwealth, such notice may be given to the duly organized state political committees. In the case of a recount of the ballots cast upon a question submitted to all the voters as aforesaid, one representative from any committee organized to favor or to oppose the question so submitted shall be permitted to be present and witness the recount.
All recounts shall be upon the questions designated in the statements or petitions filed, and no other count shall be made, or allowed to be made, or other information taken, or allowed to be taken, from the ballots on such recount, except that in the case of a recount of the ballots cast for an office, the votes cast for all of the candidates for such office, including blanks cast, shall be recounted and all spoiled and unused ballots shall also be counted and determination shall be made whether each sealed absentee ballot envelope rejected as defective should have been rejected or accepted, and the results recorded on the blank forms provided therefor, together with the absentee ballot envelopes and applications for such absent voting ballots. Nothing contained in this section shall be construed to prevent the immediate commencement of the work of actually recounting the ballots at the recount.
If, after a petition for a recount of the votes for an office in any ward, town, or precinct of a town has been filed, a candidate who requested the recount files a written request with the city or town clerk that the recount petitioned for be discontinued, the city or town clerk shall immediately suspend the recount and give written notice to each candidate for the office that, unless written notice of a candidate’s objection is received within seventy-two hours after such notice is sent, the recount shall be discontinued. If no such notice of objection is received, the recount shall be discontinued.
If, after a petition for state-wide recount for an office has been filed, the leading candidate, together with every other candidate whose votes therefor are not exceeded in number by the votes of the leading candidate by more than one half of one per cent of the total number of votes cast for such office, shall file a written request with the state secretary that the recount petitioned for be discontinued, the state secretary shall immediately order such recount discontinued whereupon such proceedings shall terminate.
The registrars shall, when the recount is complete, enclose all the ballots in their proper envelopes or containers, seal each envelope or container with a seal provided therefor, and certify upon each envelope or container that it has been opened and again sealed in conformity to law; and shall likewise make and sign a statement of their determination of the questions raised. The registrars shall also enclose all protested ballots in a separate envelope, seal the envelope with a seal provided therefor and certify upon the envelope that it contains all ballots that have been protested. When ballots are summoned to court, only such ballots as have been duly recorded as protested at a recount shall be required to be produced except by express order of the court. The envelopes or containers, with such statement, shall be returned to the city or town clerk, who shall alter and amend, in accordance with such determination, such records as have been found to be erroneous; and the records so amended shall stand as the true records of the election. Copies of such amended records of votes cast at a state election shall be made and transmitted as required by law in the case of copies of original records; provided, that such copies of amended records shall in case of a state-wide recount be transmitted by the city or town clerk to the state secretary within four days of the completion of such recount. If, in case of a recount of votes for town officers, it shall appear that a person was elected other than the person declared to have been elected, the registrars of voters shall forthwith make and sign a certificate of such fact, stating therein the number of votes cast, as determined by the recount, for each candidate for the office the election to which is disputed, and shall file the same with the town clerk. The town clerk shall record the certificate and shall, within twenty-four hours after such filing, cause a copy of such certificate, attested by him, to be delivered to or left at the residence of the person so declared to have been elected, and to the person who by such certificate appears to be elected.
Registrars of voters may employ such clerical assistance as they deem necessary to enable them to carry out this section and in the investigation of challenged votes may summon witnesses and administer oaths.