Law:Division 16. Elections Contests (California)
From Law Delta
Chapter 1. General Provisions
Ca Codes (elec:16000-16003) Elections Code Section 16000-16003
16000. The general election contest provisions of this division, exclusive of Article 1 (commencing with Section 16700) of Chapter 8, Chapter 9 (commencing with Section 16800), and Article 1 (commencing with Section 16900) of Chapter 10, shall also apply to the recount of votes cast on a ballot measure, insofar as they can be made applicable.
16002. When used in this division, "contestant" means any person initiating an election contest. "Defendant" means that person whose election or nomination is contested or those persons receiving an equal and highest number of votes, other than the contestant, where, in other than primary elections, the body canvassing the returns declares that no one person has received the highest number of votes for the contested office.
16003. In a contest of the election of presidential electors the action or appeal shall have priority over all other civil matters. Final determination and judgment shall be rendered at least six days before the first Monday after the second Wednesday in December.
Chapter 2. Grounds For Contest
Ca Codes (elec:16100-16101) Elections Code Section 16100-16101
16100. Any elector of a county, city, or of any political subdivision of either may contest any election held therein, for any of the following causes: (a) That the precinct board or any member thereof was guilty of malconduct. (b) That the person who has been declared elected to an office was not, at the time of the election, eligible to that office. (c) That the defendant has given to any elector or member of a precinct board any bribe or reward, or has offered any bribe or reward for the purpose of procuring his election, or has committed any other offense against the elective franchise defined in Division 18 (commencing with Section 18000). (d) That illegal votes were cast. (e) That eligible voters who attempted to vote in accordance with the laws of the state were denied their right to vote. (f) That the precinct board in conducting the election or in canvassing the returns, made errors sufficient to change the result of the election as to any person who has been declared elected. (g) That there was an error in the vote-counting programs or summation of ballot counts.
16101. Any candidate at a primary election may contest the right of another candidate to nomination to the same office by filing an affidavit alleging any of the following grounds, that: (a) The defendant is not eligible to the office in dispute. (b) The defendant has committed any offense against the elective franchise defined in Division 18 (commencing with Section 18000). (c) A sufficient number of votes were illegal, fraudulent, forged, or otherwise improper, and that had those votes not been counted, the defendant would not have received as many votes as the contestant. (d) A sufficient number of eligible voters who attempted to vote in accordance with the laws of the state were denied their right to vote, and that had those voters been permitted to vote, the defendant would not have received as many votes as the contestant. (e) Due to mistake, error, or misconduct the votes in any precinct were so incorrectly counted as to change the result.
Chapter 3. Contests At General Elections
Ca Codes (elec:16200-16204) Elections Code Section 16200-16204
16200. This chapter shall not apply to elections for the office of state Senator or Member of the Assembly of the California Legislature.
16201. No irregularity or improper conduct in the proceedings of the precinct board members, or any of them, is malconduct that avoids an election, unless the irregularity or improper conduct is such as to procure the defendant to be declared either elected or one of those receiving an equal and highest number of votes where no one person has received the highest number of votes.
16202. When any election held for an office exercised in and for a county is contested on account of any malconduct on the part of the precinct board of any precinct, or any member thereof, the election shall not be annulled or set aside upon any proof thereof, unless the rejection of the vote of that precinct would change the result as to that office in the remaining vote of the county.
16203. An election shall not be set aside on account of illegal votes, unless it appears that a number of illegal votes has been given to the person whose right to the office is contested or who has been certified as having tied for first place, which, if taken from him, would reduce the number of his legal votes below the number of votes given to some other person for the same office, after deducting therefrom the illegal votes which may be shown to have been given to that other person.
16204. An election shall not be set aside on account of eligible voters being denied the right to vote, unless it appears that a sufficient number of voters were denied the right to vote as to change the result.
Chapter 4. Contests At Primary Elections
Ca Codes (elec:16300) Elections Code Section 16300
16300. Irregularity or improper conduct shall annul or set aside a nomination only if it appears that illegal votes in the precinct have been given to the defendant, which if taken from him or her, would reduce the number of his legal votes below the number of votes given to the contestant.
Chapter 5. Form Of Contest Statement
Article 1. General Elections
Ca Codes (elec:16400-16404) Elections Code Section 16400-16404
16400. When an elector contests any election he or she shall file with the clerk of the superior court having jurisdiction a written statement setting forth specifically: (a) The name of the contestant and that he or she is an elector of the district or county, as the case may be, in which the contested election was held. (b) The name of the defendant. (c) The office. (d) The particular grounds of contest and the section of this code under which the statement is filed. (e) The date of declaration of the result of the election by the body canvassing the returns thereof.
16401. The contestant shall verify the statement of contest, as provided by Section 446 of the Code of Civil Procedure, and shall file it within the following times after either the declaration of the result of the election or the declaration of the results of any postcanvass risk-limiting audit conducted pursuant to Section 15560 by the body canvassing the returns thereof: (a) In cases other than cases of a tie, where the contest is brought on any of the grounds mentioned in subdivision (c) of Section 16100, six months. (b) In all cases of tie, 20 days. (c) In cases involving presidential electors, 10 days. (d) In all other cases, 30 days.
16402. When the reception of illegal votes is alleged as a cause of contest, it is sufficient to state generally that in one or more specified voting precincts illegal votes were given to the defendant, which, if taken from him or her, will reduce the number of his or her legal votes below the number of legal votes given to some other person for the same office. Testimony shall not be received of any illegal votes, unless the contestant delivers to the defendant, at least three days before the trial, a written list of the number of illegal votes, and by whom given, which he or she intends to prove. No testimony may be received of any illegal votes except those that are specified in the list.
16402.5. An election shall not be set aside on account of eligible voters being denied the right to vote, unless it appears that a sufficient number of voters were denied the right to vote as to change the result.
16403. A statement of the grounds of contest shall not be rejected nor the proceedings dismissed by any court for want of form, if the grounds of contest are alleged with such certainty as will advise the defendant of the particular proceeding or cause for which the election is contested.
16404. The affidavit shall specify separately each precinct in which any irregularity or improper conduct took place, or in which a recount is demanded, and the nature of the mistake, error, misconduct, or other cause of contest, and the date of completion of the official canvass of the board of supervisors of the county last making the declaration.
Article 2. Primary Elections
Ca Codes (elec:16420-16421) Elections Code Section 16420-16421
16420. The defendant shall be named in the affidavit.
16421. The affidavit shall be filed in the office of the clerk of the superior court having jurisdiction within five days after either the completion of the official canvass or the completion of any postcanvass risk-limiting audit conducted pursuant to Section 15560 by the county last making the declaration. In the case of an office for which candidates are certified for the ballot by the Secretary of State, or in the case of a statewide ballot measure, the superior court having jurisdiction shall be the Superior Court for the County of Sacramento.
Article 3. Contests Other Than Recount
Ca Codes (elec:16440-16444) Elections Code Section 16440-16444
16440. This article applies only to contests on the grounds that: (a) The defendant is not eligible to the office in dispute. (b) The defendant has committed any offense against the elective franchise as defined in Division 18 (commencing with Section 18000). (c) A sufficient number of votes were illegal, fraudulent, forged, or otherwise improper, and that had those votes not been counted the defendant would not have received as many votes as the contestant.
16441. If the nomination contested is for an office including a political subdivision of more than one county, the superior court of any county within the political subdivision has jurisdiction, and the contestant may file in any county within the political subdivision. There shall be no change of venue therefrom to any other county within the political subdivision.
16442. After the affidavit is filed with the clerk of the superior court, a copy of the affidavit shall be personally served upon the defendant or sent to him or her by registered mail in a sealed envelope with postage prepaid, addressed to the defendant at the place of residence named in his or her affidavit of registration. The contestant shall make an affidavit of mailing if he or she serves the affidavit by mail, and file it on the same day with the county elections official.
16443. The defendant, after receipt of the copy of the affidavit, may file an answer and a cross-contest affidavit within five days.
16444. No special appearance, demurrer or objection may be taken other than by the affidavits which shall be considered a general appearance in the contest.
Article 4. Contests Involving A Recount
Ca Codes (elec:16460-16467) Elections Code Section 16460-16467
16460. This article applies only to contests on the ground that due to mistake, error, or misconduct the votes in any precinct were so incorrectly counted as to change the result.
16461. The superior court of that county in which is located the precinct in which the contestant demands a recount has jurisdiction.
16462. No service other than as provided in this section need be made upon the defendant. The affidavit shall be filed in the office of the clerk of the superior court within five days after the completion of the official canvass. Upon the filing of the affidavit the county elections official shall forthwith post, in a conspicuous place in his or her office, a copy of the affidavit. Upon the filing of the affidavit and its posting, the superior court of the county shall have jurisdiction of the subject matter and of the parties to the contest. The contestant on the date of filing the affidavit shall send by registered mail a copy thereof to the defendant in a sealed envelope, with postage prepaid, addressed to the defendant at the place of residence named in the affidavit of registration of the defendant, and shall make and file an affidavit of mailing with the county elections official, which shall become a part of the records of the contest.
16463. All candidates at any primary election are permitted to be candidates under this code only upon the condition that jurisdiction for the purposes of the proceeding authorized by this article shall exist in the manner and under the conditions provided for by Section 16462.
16464. At any time within three days after the filing of the affidavit of the contestant to the effect that he or she has sent by registered mail a copy of the affidavit to the defendant, the defendant may file with the clerk of the superior court an affidavit in his or her own behalf, setting up his or her desire to have the votes counted in any precincts, designating them, in addition to the precincts designated in the affidavit of the contestant, and setting up his or her grounds therefor. On the trial of the contest all of the precincts named in the affidavits of the contestant and the defendant shall be considered, and a recount had with reference to all of those precincts. The contestant shall have the same right to answer the affidavit of the defendant as is given to the defendant with reference to the affidavit of the contestant except that the contestant's answer shall be filed not later than the first day of the trial of the contest.
16465. The defendant shall appear, either in person or by attorney, at the time and place fixed for the hearing, and shall take notice of the order fixing the time and place from the records of the court, without service.
16466. The defendant may not make any special appearance for any purpose except as provided in this article. Any appearance whatever of the defendant or any request to the court by the defendant or his or her attorney shall be entered as a general appearance in the contest. No demurrer or objection may be taken by the parties in any other manner than by answer, and all the objections shall be contained in the answer.
16467. The court, if the defendant appears, shall require the answer to be made within three days from the time and place set for hearing. If the defendant does not appear the court shall note his default, and shall proceed to hear and determine the contest with all convenient speed.
Chapter 6. Elections Official's Duties
Article 1. Contest Procedures At General Elections
Ca Codes (elec:16500-16503) Elections Code Section 16500-16503
16500. Within five days after the end of the time allowed for filing statements of contest, the clerk of the superior court shall notify the superior court of the county of all statements filed. The presiding judge shall forthwith designate the time and place of hearing, which time shall be not less than 10 nor more than 20 days from the date of the order.
16501. The clerk of the superior court shall thereupon issue a citation for the defendant to appear at the time and place specified in the order, which citation shall be delivered to the sheriff and served upon the party at least five days before the time so specified, by either of the following methods: (a) Personally. (b) If the party cannot be found, by leaving a copy at the house where he or she last resided.
16502. The clerk of the superior court shall issue subpoenas for witnesses at the request of any party, which shall be served as other subpoenas. The superior court may issue attachments to compel the attendance of witnesses who have been subpoenaed to attend.
16503. The contestant shall, in the first instance, be liable for the expenses involved in making any recount. He or she shall pay into court in advance each day a sum that the judge finds sufficient to pay all recount expenses that will have accrued by the end of that day. The sums paid shall be part of the costs. The elections official may pay each day the clerical assistants necessary for the recount from the amount advanced by the contestant without the necessity of the funds being first deposited with the county treasurer.
Article 2. Contest Procedures At Primary Elections: Contests Other Than Recount
Ca Codes (elec:16520-16521) Elections Code Section 16520-16521
16520. The clerk of the superior court, within five days after the end of the time for filing affidavits, shall present all the affidavits to the presiding judge of the superior court. The presiding judge shall forthwith designate the time and place of hearing, which shall be not less than 10 nor more than 20 days from the date of the order.
16521. The clerk of the superior court, after an order setting a contest for trial, shall issue a citation to both parties containing a copy of the order. He or she shall deliver it to the sheriff who shall serve it either upon the parties or leave it at the residences named in the affidavits of registration of the parties.
Article 3. Contest Procedures At Primary Elections: Involving A Recount
Ca Codes (elec:16540) Elections Code Section 16540
16540. On the fifth day after the end of the time for filing contestant's affidavit, the clerk of the superior court shall present the affidavits of the contestant and the defendant and proof of posting of contestant's affidavit to the presiding judge of the superior court, or anyone acting in his or her stead, who shall forthwith designate the time and place of hearing, the time for which shall be not less than 10 nor more than 20 days from the date of the order.
Chapter 7. Court's Duties
Article 1. General Elections
Ca Codes (elec:16600-16603) Elections Code Section 16600-16603
16600. The court shall meet at the time and place designated, to determine the contested election, and shall have all the powers necessary to the determination thereof. It may adjourn from day to day until the trial is ended, and may also continue the trial before its commencement for any time not exceeding 20 days for good cause shown by any party upon affidavit, at the costs of the party applying for the continuance.
16601. At the trial the ballots shall be opened and a recount taken, in the presence of all the parties, of the votes cast for the various candidates in all contests where it appears from the statements filed that a recount is necessary for the proper determination of the contest. The recount shall include a tabulation of all names written upon a ballot and which are subject to canvass pursuant to Chapter 7 (commencing with Section 15350) of Division 15.
16602. In the trial and determination of election contests, the court shall be governed by the rules of law and evidence governing the determination of questions of law and fact, so far as the same may be applicable. It may dismiss the proceedings if the statement of the cause of the contest is insufficient, or for want of prosecution.
16603. The court shall continue in session to hear and determine all issues arising in contested elections. After hearing the proofs and allegations of the parties and within 10 days after the submission thereof, the court shall file its findings of fact and conclusions of law, and immediately thereafter shall pronounce judgment in the premises, either confirming or annulling and setting aside the election. The judgment shall be entered immediately thereafter.
Article 2. Primary Elections: Contests Other Than Recount
Ca Codes (elec:16620) Elections Code Section 16620
16620. The court shall meet at the time and place designated in the order setting the contest for trial, and shall have all powers necessary to determine the issues.
Article 3. Primary Elections: Contests Involving A Recount
Ca Codes (elec:16640-16643) Elections Code Section 16640-16643
16640. If the number of votes that are sought to be recounted or the number of contests are such that the judge in a county in which there is but one superior court judge is of the opinion that it will require additional judges to enable the contest or contests to be determined in time to print the ballots for the election, he or she may obtain the service of any other superior judge, and the proceedings shall be the same as provided for a county in which there is more than one superior court judge.
16641. If the proceeding is in a county where there is more than one superior court judge, the judge to whom the case is assigned shall notify the presiding judge forthwith of the number of judges which he or she deems necessary to participate in order to finish the contest in time to print the ballots for the final election. The presiding judge shall forthwith designate as many judges as are necessary to completion of the contest, by order in writing and thereupon all of the judges so designated shall participate in the recount of the ballots and the giving of judgment in the contest in the manner specified in this article.
16642. The judges designated by the order to hear the contest, including the judge to whom the contest was originally assigned, shall convene upon notice from the judge to whom the contest was originally assigned, and agree upon the precincts which each one of them, sitting separately, will recount. Thereupon the recount shall so proceed that each judge, sitting separately, shall respectively determine the recount in those precincts which have been assigned to him or her, so that the ballots opened before one judge need not be opened before another judge or department.
16643. The proceedings before every judge in making a recount of the precincts assigned to him or her, as to the appointment of the elections official and persons necessary to be assistants of the court in making it, shall be the same as in contested elections. Section 16503 applies to the recount.
Chapter 8. Court's Decisions, Judgment, And Determinations
Article 1. General Elections
Ca Codes (elec:16700-16703) Elections Code Section 16700-16703
16700. The person declared elected by the superior court is entitled to a certificate of election. If a certificate has not already been issued to him or her, the elections official shall immediately make out and deliver to that person a certificate of election signed by him or her.
16701. If the elections official has issued any certificate for the same office to any other person than the one declared elected by the court, or if the court finds a tie vote in a general election contest brought under this division, the certificate is annulled by the judgment.
16702. Whenever an election is annulled or set aside by the judgment of the superior court, and no appeal has been taken within 10 days thereafter, the commission, if any has issued, is void and the office vacant.
16703. If in any election contest it appears that another person than the defendant has the highest number of legal votes, the court shall declare that person elected.
Article 2. Primary Elections: Other Than Recount
Ca Codes (elec:16720) Elections Code Section 16720
16720. After the court has heard the proofs and allegations of the parties, it shall file its findings of fact and conclusions of law and immediately pronounce judgment either confirming the nomination or setting it aside and decreeing contestant nominated.
Article 3. Primary Elections: Involving A Recount
Ca Codes (elec:16740-16742) Elections Code Section 16740-16742
16740. When the recount has been completed in the manner required by Article 4 (commencing with Section 16460) of Chapter 5, and Article 3 (commencing with Section 16640) of Chapter 7, all the judges who took part, if more than one, shall assemble and make the decision of the court. If there is any difference of opinion, a majority of the judges shall finally determine all questions, and give a separate decision or judgment in each contest.
16741. A certified copy of the judgment shall be served upon the elections official and may be enforced summarily in the same manner as provided in Section 13314.
16742. If the contest proceeds in more than one county, and the nominee is to be certified by the Secretary of State from the compilation of election returns in his or her office, the judgment in each county in which there has been a contest shall show what, if any, changes in the returns in the office of the Secretary of State relating to that county ought to be made. Certified copies of the judgments shall be served upon the Secretary of State. He or she shall make the changes in the record in his or her office as each judgment requires, and conform his or her compilation and his or her certificate of nomination accordingly.
Chapter 9. Costs
Ca Codes (elec:16800-16803) Elections Code Section 16800-16803
16800. If the proceedings in a general election contest under this division are dismissed for insufficiency or for want of prosecution, or the election is confirmed by the court, judgment for costs shall be rendered against the contestant and in favor of the defendant. If the election is annulled or set aside on the ground of errors of a precinct board in conducting the election or in canvassing the returns, the costs shall be a charge against the county or city where the election was held. When the election is annulled or set aside on any other ground, judgment for costs shall be given in favor of contestant and against the defendant.
16801. Where two or more contested elections are joined for the purpose of recounting votes, the costs shall be apportioned among the parties in the discretion of the court.
16802. Primarily each party is liable for the costs created by himself or herself to the officers and witnesses entitled thereto, which costs may be collected in the same manner as similar costs are collected in other cases.
16803. The provisions relating to costs in contested final elections apply to primary election contests conducted under this division.
Chapter 10. Appeals
Article 1. General Elections
Ca Codes (elec:16900) Elections Code Section 16900
16900. Any party aggrieved by the judgment of the court may appeal therefrom to the court of appeal, as in other cases of appeal thereto from the superior court. During the pendency of proceedings on appeal, and until final determination thereof, the person declared elected by the superior court shall be entitled to the office in like manner as if no appeal had been taken.
Article 2. Primary Elections: Other Than A Recount
Ca Codes (elec:16920) Elections Code Section 16920
16920. Either party to a contest may appeal to the district court of appeal of the district where the contest is brought, if the appeal is perfected by the appellant within 10 days after judgment of the superior court is pronounced. The appeal shall have precedence over all other appeals and shall be acted upon by the district court of appeal within 10 days after the appeal is filed.
Article 3. Primary Elections: Involving A Recount
Ca Codes (elec:16940) Elections Code Section 16940
16940. The judgment of the court is final in every respect. No party may appeal.