ORS Chapter 258
Chapter 258 — ElectionContests; Recounts
2009 EDITION
ELECTIONCONTESTS; RECOUNTS
ELECTIONS
GENERALPROVISIONS
258.006 Definitions
ELECTIONCONTESTS
258.016 Groundsfor contest; persons authorized to contest
258.026 Whenelection results may be set aside
258.036 Petitionof contest; location of filing; contents of petition
258.046 Paymentof costs, disbursements and attorney fees
258.055 Publicationof notice of contest; service and filing of copies of petition of contest;court hearing
258.063 Effectof successful contest of recall election
258.065 Effectof successful contest of nomination or election
258.075 Effectof successful contest of measure; special election dates; tax electionparticipation contests
258.085 Appealto Court of Appeals
RECOUNTS
258.150 Authorityof Secretary of State over recounts
258.161 Filingdemand for recount with Secretary of State; partial or full recount; deposit;waiver of deposit; deadline for filing demand; recount related to presidentialelection
258.171 Fullrecount required to change results; exception for recount demand made by countyclerk
258.181 Onerecount only; two or more recount demands
258.190 Secretaryof State ordering recount after demand; notice
258.200 Countingboards; appointment; compensation
258.211 Openingballot boxes; conduct of recount by hand; persons permitted to be present
258.221 Completionof recount; certification of votes and cost; notification of person demandingrecount
258.231 Coststo be included and excluded from recount costs
258.241 Officialreturn of election after recount
258.250 Paymentof cost of recount
258.260 Coststo be collected for multicounty or statewide election recounts
258.270 Paymentof costs where more than one recount conducted simultaneously
258.280 Automaticfull recount required in certain elections of candidates for office; costs ofrecount to be paid by governmental unit
258.290 Automaticfull recount required in certain elections on measures; costs of recount to bepaid by governmental unit; exception
258.300 Electionsofficials to notify Secretary of State when automatic full recount required
258.005 [1965 c.586 §2;repealed by 1979 c.190 §431]
GENERALPROVISIONS
258.006Definitions.As used in this chapter:
(1)“Candidate” means a candidate for nomination or election to any electiveoffice.
(2)“Contestant” means any person who files a petition of contest under ORS258.036.
(3)“Contestee” means:
(a)In a contest of the nomination of a person for an office or the election of aperson to an office, all candidates for the nomination or office, other than acandidate who is a contestant.
(b)In a contest of the approval or rejection of a measure proposed by initiativepetition, the chief petitioner of the petition, unless the chief petitioner isa contestant, and any other person involved in the cause of the contest.
(c)In a contest of the result of a recall election, the public officer subject tothe recall.
(d)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 ofelections.
(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 castfor the nomination or office for which a candidate received a vote or on anymeasure that appeared on the ballot.
(7)“Measure” includes any of the following submitted to the people for theirapproval 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 tothe greater of:
(a)Five percent of the precincts in which votes were cast for the nomination oroffice for which a candidate received a vote or on any measure that appeared onthe ballot; or
(b)Three specified precincts in which votes were cast for the nomination or officefor which a candidate received a vote or on any measure that appeared on theballot. [Formerly 251.015; 1983 c.392 §7; 1985 c.186 §1; 1995 c.607 §52; 2001c.965 §28; 2009 c.511 §12]
258.010 [1953 c.397 §1;repealed by 1965 c.586 §34]
258.015 [1965 c.586 §3;repealed by 1979 c.190 §431]
ELECTIONCONTESTS
258.016Grounds for contest; persons authorized to contest. The nominationor election of a person, the result of a recall election or the approval orrejection of a measure may be contested by any elector entitled to vote for theperson, recall or measure, by any person who was a candidate at the electionfor the same nomination or office, by the public officer subject to the recall,by the Secretary of State if the contest involves a state measure, the recallof a state officer or a candidate for whom the Secretary of State is the filingofficer, or by the county clerk who conducted the election, only for thefollowing causes:
(1)Deliberate and material violation of any provision of the election laws inconnection with the nomination, election, recall election or approval orrejection of a measure.
(2)Ineligibility of the person elected to the office to hold the office at the timeof 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 bya local elections official, as that term is defined in ORS 246.012, or a countyclerk.
(7)A challenge to the determination of the number of electors who were eligible toparticipate in an election on a measure conducted under section 11 (8), ArticleXI of the Oregon Constitution. [Formerly 251.025; 1983 c.170 §1; 1993 c.493 §48;1997 c.541 §313a; 2001 c.965 §29; 2009 c.511 §13]
258.020 [1953 c.397 §2;repealed by 1965 c.586 §34]
258.025 [1965 c.586 §4;1979 c.190 §24; renumbered 246.520]
258.026When election results may be set aside. (1) The nomination or election of aperson may 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 ofthe contest; or
(b)The number of votes taken from the person nominated or elected by reason of thecause of the contest would reduce the legal votes of the person below thenumber of legal votes given to another person for the same nomination oroffice.
(2)The nomination or election of a person may not be set aside for the causedescribed in ORS 258.016 (6) unless the nomination or election would have beengiven to one of the candidates other than the candidate nominated or elected ifall votes not cast or tallied due to the error had been cast or tallied for theother candidate.
(3)The approval or rejection of a measure may not be set aside unless:
(a)The number of votes taken from the approval or rejection by reason of the causeof 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 ortallied due to an error under ORS 258.016 (6) had been cast or tallied inopposition to the contested outcome.
(4)The result of a recall election may not be set aside unless:
(a)The number of votes taken from the result of the recall election by reason ofthe cause of the contest would reverse the result; or
(b)The result of the recall election would have been reversed if all votes notcast or tallied due to an error under ORS 258.016 (6) had been cast or talliedin opposition to the contested result. [Formerly 251.035; 1983 c.170 §2; 2009c.511 §14]
258.030 [1953 c.397 §30;repealed by 1965 c.586 §34]
258.035 [1965 c.586 §5;repealed by 1979 c.190 §431]
258.036Petition of contest; location of filing; contents of petition. (1) Not laterthan the 40th day after the election or the seventh day after completion of arecount of votes cast in connection with the election, any person authorized tocontest a result of the election may file a petition of contest. The petitionshall be filed with:
(a)The Circuit Court for Marion County if the petition involves a state measure, acandidate for election to the office of elector of President and Vice Presidentof the United States or a candidate for nomination or election to the office ofUnited States Senator, United States Representative in Congress, Governor,Secretary of State, State Treasurer, Attorney General, Commissioner of theBureau of Labor and Industries, Superintendent of Public Instruction or aposition of judge on the Oregon Supreme Court, the Oregon Court of Appeals orthe Oregon Tax Court.
(b)The circuit court for the county where a majority of the electors in theelectoral district reside if the petition involves a candidate for nominationor election to the office of state Senator, state Representative, circuit courtjudge or district attorney.
(c)The circuit court for the county in which the filing officer is located if thepetition involves a candidate for nomination or election to county, city ordistrict office or a county, city or district measure. If a district is locatedin more than one county, the petition shall be filed with the circuit court forthe county in which the administrative office of the district is located.
(d)The circuit court for the county in which the filing officer authorized toorder the recall election is located if the petition involves the recall of apublic officer.
(2)The petition shall be verified in the manner required for verification of complaintsin 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;2009 c.511 §15]
258.040 [1953 c.397 §37;repealed by 1965 c.586 §34]
258.045 [1965 c.586 §6;1979 c.190 §25; renumbered 246.530]
258.046Payment of costs, disbursements and attorney fees. (1) Theprevailing party in the contest proceeding shall recover costs, disbursementsand 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 andthe 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, recallelection or measure;
(b)The city for a contest of a city nomination, office, recall election ormeasure; or
(c)Any other political subdivision or public corporation for a contest of such asubdivision or corporation nomination, office, recall election or measure.
(2)In a contest under ORS 258.016 (7), costs, disbursements and attorney fees maynot be assessed against the county clerk unless the court makes a specificfinding 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; 2009 c.511 §16]
258.055Publication of notice of contest; service and filing of copies of petition ofcontest; court hearing. (1) Except as provided in subsection (2) of thissection, when a contestant files a petition of contest with the circuit courtdescribed under ORS 258.036, the contestant shall, within three business daysof filing the petition, publish a notice stating that the petition has beenfiled and identifying the date of the deadline described in this subsection forfiling a motion to intervene. The notice must be published at least once in thenext available issue of a newspaper of general circulation published in thecounty where the proceeding is pending. Jurisdiction over the election contestshall be complete within 10 days after the notice is published as provided inthis subsection. Any person interested may at any time before the expiration ofthe 10 days appear and contest the validity of the proceeding, or of any of theacts or things enumerated in the proceeding.
(2)Subsection (1) of this section does not apply if the contest involves:
(a)A state measure.
(b)The election of a candidate to the office of elector of President and VicePresident of the United States.
(c)The nomination or election of a candidate to the office of United StatesSenator, United States Representative in Congress, Governor, Secretary ofState, State Treasurer, Attorney General, Commissioner of the Bureau of Laborand Industries, Superintendent of Public Instruction or a position of judge onthe Oregon Supreme Court, the Oregon Court of Appeals or the Oregon Tax Court.
(d)The recall of a person from the office of Governor, Secretary of State, StateTreasurer, Attorney General, Commissioner of the Bureau of Labor and Industries,Superintendent of Public Instruction or a position of judge on the OregonSupreme Court, the Oregon Court of Appeals or the Oregon Tax Court.
(3)Not later than two business days after the contestant files a petition ofcontest with the circuit court, the contestant shall serve a copy of thepetition by certified mail on each contestee. If the Secretary of State orcounty clerk is not a contestee, not later than one business day after thecontestant files a petition of contest with the circuit court, the contestantshall file a copy of the petition with:
(a)The Secretary of State if the petition involves a candidate for state office,the recall of a person from state office or a state measure; or
(b)The county clerk if the petition involves a candidate for county, city ordistrict office, the recall of a person from county, city or district office ora 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 acity or district is located regarding a measure, a recall or a candidate for anoffice 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 thecontest proceeding, and not later than the fifth day before the hearing shallgive written notice of the hearing to each party to the proceeding. In fixingthe time for the hearing, the court shall consider the dates set in any noticepublished under subsection (1) of this section and the dates of service on thecontestees. The contest proceeding shall take precedence over all otherbusiness on the circuit court docket.
(5)The circuit court shall hear and determine the proceeding without a jury andshall issue written findings of law and fact. The practice and procedureotherwise applicable to civil cases shall govern the proceeding, except thatthe contestant has the burden of proof by clear and convincing evidence. [Formerly251.070; 1995 c.607 §54; 2001 c.965 §31; 2009 c.511 §17]
258.063Effect of successful contest of recall election. (1) After thecontest hearing, the circuit court shall render a judgment affirming or settingaside the results of the recall election. If the court sets aside the resultsof the election, a special election on the recall shall be held not later than35 days after the date the judgment was rendered.
(2)The county of the county clerk or the local elections official who committedthe error in the distribution of the official ballots shall bear the cost ofthe special election. [2009 c.511 §19]
258.065Effect of successful contest of nomination or election. (1) After thecontest hearing, the circuit court shall render a judgment affirming or settingaside 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 declarethat the nomination is vacant.
(3)Except as provided in subsection (4) of this section, if the judgment setsaside the election of a person, the incumbent shall remain in office until asuccessor is elected.
(4)If the judgment sets aside the election of a person to an office sought by anincumbent who was defeated, the office shall be declared vacant.
(5)If the judgment under ORS 258.026 (2) sets aside the nomination or election ofa person to a city office or as a member of the board of a district defined inORS 255.012, the names of the candidates for the office shall be resubmitted tothe electors at a special election held on the next available election date.The county of the county clerk or the local elections official who committedthe error in the distribution of the official ballots shall bear the cost ofthe election. [1979 c.190 §320; 1983 c.170 §3]
258.075Effect of successful contest of measure; special election dates; tax electionparticipation contests. (1) Except as provided in subsection (4) of thissection, after the contest hearing, the circuit court shall render a judgmentaffirming or setting aside the approval or rejection of the measure.
(2)If the judgment sets aside the approval or rejection of a measure, the circuitcourt shall direct the measure to be resubmitted at a special election held onone of the dates specified in this subsection, as set by the court. In settingthe election date, the court shall provide sufficient time for adequate noticeto 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 committedthe error in the distribution of the official ballots shall bear the cost ofthe special election.
(4)In a contest under ORS 258.016 (7), the court shall determine whether thechallenge to the determination of the number of electors who were eligible onelection day to participate in the election on a measure conducted undersection 11 (8), Article XI of the Oregon Constitution, is valid. In making thedetermination, the court shall rely on the provisions of ORS chapter 247 andshall receive testimony from the county clerk regarding the clerk’sadministration of ORS chapter 247. If, after a contest hearing, the courtdetermines that the challenge to the determination of the number of electorswho were eligible to participate is valid and that the change in the number ofelectors eligible to participate is sufficient to change the outcome of the electionon the measure, the court shall order the county clerk to make a newdetermination of the number of eligible electors and to certify the results ofthe 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]
258.085Appeal to Court of Appeals. Any party to the contest proceeding may appeal fromthe judgment rendered by the circuit court to the Court of Appeals in the samemanner as appeals in civil cases are taken. The appeal shall take precedenceover all other business on the docket. [Formerly 251.090]
258.105 [1965 c.586 §7;1979 c.190 §246; renumbered 246.540]