# Title 16.1 — Elections

## Chapter 16.1-16 — Recounts and Contest of Elections

### § 16.1-16-01. Election recounts.

A recount of any primary, special, or general election for nomination or election to a
presidential, congressional, state, judicial district, multicounty district, legislative, county, or city
office, or for the approval or disapproval of any measure, question, or bond issue submitted to
the qualified electors of this state or one of its political subdivisions must be conducted
according to guidelines established by the secretary of state and as follows:
1. A recount must be conducted when:
a. Any individual failed to be nominated by the individual's party or to a no-party
office in a primary election by one percent or less of the highest vote cast for a
candidate seeking nomination from the political party for the office sought or for a
candidate for the no-party office sought.
b. Any individual failed to be elected in a general or special election by one-half of
one percent or less of the highest vote cast for a candidate for that office.
c. A question, measure, or bond issue submitted to the qualified electors has been
decided by a margin not exceeding one-fourth of one percent of the total vote
cast for and against the question at any election.
2. A demand for a recount may be made by any of the following:
a. Any individual who failed to be nominated by the individual's party or to a no-party
office in a primary election by more than one percent and less than two percent of
the highest vote cast for a candidate seeking nomination from the political party
for the office sought or for a candidate for the no-party office sought.
b. Any individual who failed to be elected in a general or special election by more
than one-half of one percent and less than two percent of the highest vote cast
for a candidate for that office.
3. A demand for a recount must be made within three days after the canvass of the votes
by the county canvassing board in the case of county elections and city elections that
are combined with the county and by the state canvassing board in the case of
presidential, congressional, state, judicial district, multicounty district, or legislative
elections. The demand must be in writing, must recite one of the conditions in
subsection 2 as a basis for the recount, must contain a bond in an amount previously
established by the auditor or auditors doing the recount sufficient to pay the cost of the
recount, and must be filed with:
a. The secretary of state when the recount is for a congressional, state, district, or
legislative office.
b. The county auditor when the recount is for a county office or city office when a
city election is combined with the county.
4. Within four days after the canvass of the votes by the state canvassing board in the
case of presidential, congressional, state, judicial district, multicounty district, or
legislative elections, the secretary of state shall notify all the county auditors to
conduct recounts as required by subsection 1 and, when a timely recount demand is
received and it is in proper form, as required by subsection 2. The secretary of state
shall fix the date or dates of the recounts of legislative contests to be held within seven
days after giving notice to the affected auditors that recounts must be conducted. The
secretary of state shall fix the date or dates of the recounts of statewide races to be
held within fourteen days after giving notice to the auditors that recounts must be
conducted. Within four days after the canvass of votes by the county canvassing board
or other political subdivision canvassing board, the county auditor or other political
subdivision election official shall fix the date for recounts limited to the county, those
cities within the county which combined the election with the county, or other political
subdivision. The date must be within eight days after the canvass. In all recount
proceedings, the county auditor or other election official, as appropriate, shall send
notice of the date, place, and time of the recount to all candidates and petitioners
involved by certified mail.

5. For recounts conducted by counties of federal, state, district, and county offices,
measures, and questions, the county auditor must conduct the recount and may
employ up to ten qualified electors of the county to assist in the recount. The county
auditor shall review all properly cast ballots and associated records. The county
auditor shall check the precinct count and the count of the county canvassing board. If
the county auditor is a candidate involved in the recount, the county auditor is
disqualified from acting thereon, and the county recorder shall perform the duties
required of the county auditor by this section. For recounts conducted by political
subdivisions other than counties of local offices, measures, and questions, the election
officer in a political subdivision shall administer a recount in the same manner as is
required under this subsection for counties with respect to political subdivision offices,
ballot measures, questions, or bond issues.
6. a. The individuals entitled to participate at the recount are:
(1) Each candidate involved in the recount, either personally or by a
representative.
(2) A qualified elector favoring each side of a question if the recount involves a
question or proposition submitted to a vote of the electorate.
b. The individuals allowed to participate may challenge the acceptance or exclusion
of any ballot. The individual challenging a ballot must state the reason for the
challenge based upon the law, and the county auditor or other political
subdivision election official shall count the challenged ballot as the auditor or
election official determines proper and then shall set the ballot aside with a
notation that it was challenged and how it was counted.
7. At the conclusion of the recount, the county auditor or other election official shall
submit all challenged ballots to the recount board for decision. Except for political
subdivision recounts other than counties, the recount board must be composed of the
state's attorney of the county, the chairman of the board of county commissioners, and
the county recorder. Unless otherwise specified by law, for a political subdivision other
than a county, the governing body of the political subdivision shall appoint the recount
board. An individual may not serve on the recount board if the individual has anything
of value bet or wagered on the result of the election, is a candidate for the office being
recounted, or is the husband, wife, father, mother, father-in-law, mother-in-law, son,
daughter, son-in-law, daughter-in-law, brother, or sister, whether by birth or marriage,
of the whole or the half-blood, of any candidate involved in the recount. If any of the
members of the recount board are disqualified or cannot serve for any other reason,
the members of the board of county commissioners or other political subdivision
governing body who would be qualified to serve on the board shall appoint
disinterested qualified electors of the county or other political subdivision to serve as
alternates. The recount board shall review all challenged ballots and on majority vote
shall decide how those ballots are counted. The decision of the recount board is final,
subject to the right to contest the election as provided in this chapter. If during the
recount a recess is called, the county auditor or other political subdivision election
official shall take appropriate steps to safeguard the ballots.
8. The county auditor or other election official shall certify the results of the recount
immediately after the recount. The recount result is the official result of the election in
the county or other political subdivision. The county auditor or other election official
shall prepare a corrected abstract of the votes. In a recount limited to the county, city,
or other political subdivision, if the corrected abstract shows no change in the outcome
of the election, no further action may be taken. If the corrected abstract changes the
outcome of the election, the county auditor or other election official shall issue
certificates of nomination or election accordingly and shall certify the new result of a
question submitted to the qualified electors. In the case of a city election that is
combined with a county election, the county auditor shall certify the new results of the
election to the city auditor who is responsible for issuing new certificates of election if
applicable.

9. In presidential, congressional, statewide, judicial district, multicounty district, or
legislative recounts, the county auditor, immediately after the recount, shall submit
electronically the corrected abstract to the secretary of state according to the
instructions provided by the secretary of state. The secretary of state immediately shall
assemble the state canvassing board, who shall canvass the corrected abstracts and
certify the election results. The secretary of state shall issue certificates of election or
nomination or record the approval or disapproval of a question submitted to the
qualified electors accordingly.
10. The expenses incurred in a recount of a county election must be paid by the county on
a warrant by the county auditor. The expenses incurred in a recount of a political
subdivision other than a county election must be paid by that political subdivision. The
expenses incurred in a recount of a city election must be paid by the city on a warrant
by the city auditor. The expenses incurred in a recount of a presidential, congressional,
state, judicial district, multicounty district, or legislative election must be paid by the
state from the general fund upon approval by the secretary of state of a statement of
expenses received from the county auditors. The expenses incurred in a recount
demanded under subsection 2 of section 16.1-16-01 must be paid by the secretary of
state or county auditor from the bond submitted by the individual requesting the
recount.
11. This section also applies to city elections that are not combined with the county except
the city auditor, to the extent applicable, shall perform the duties of the county auditor.
### § 16.1-16-02. Who may contest election.

A defeated candidate or ten qualified electors may contest the nomination or election of any
person or the approval or rejection of any question or proposition submitted to a vote of the
electorate, pursuant to this title. In a county election to change the county seat or to change the
boundaries of the county, the complaint must be filed against the board of county
commissioners, which shall appear and defend the contest action.
### § 16.1-16-03. Commencement of action - Parties - Status of contestee.

An action to contest an election must be commenced by service of a summons and verified
complaint. The party instituting the action must be known as the contestant, and the party
against whom the action is instituted must be known as the contestee. In a contest of an
election, the person holding the certificate of election shall take possession and discharge the
duties of the office until the contest action is finally decided.
### § 16.1-16-04. Time for commencement of action.

1. Except as provided in subsection 2, an action to contest an election must be
commenced and the complaint must be filed in the district court of the contestee's
county of residence within five days after final certification of a recount by the
appropriate canvassing board or within fourteen days after the final certification by the
appropriate canvassing board if no recount is to be conducted.
2. If the grounds for the action are the illegal payment of money or other valuable thing
subsequent to the filing of any statement of expenses required by this title or if the
contestee does not or cannot meet the qualifications to hold the office as required by
law, the action may be commenced at any time. If the grounds for the action are the
failure of a contestee to satisfy the requirements for having the contestee's name listed
on the ballot as a candidate, the action may be commenced within thirty days of the
date the contestant knows or should know of the failure.
3. The contestee shall serve and file an answer within fourteen days after service of the
contest summons and complaint.
### § 16.1-16-05. Grounds for election contest.

An election contest may be commenced for any of the following causes:

1. The contestee does not or cannot meet the qualifications to hold the office as required
by law.
2. The existence of illegal votes or erroneous or fraudulent voting, count, canvass, or
recount of votes.
3. The contestee was listed as a candidate on the ballot despite failing to meet the
requirements to be listed on the ballot.
### § 16.1-16-06. Election contest to be tried as civil action - Precedence on court calendar.

Election contest actions must be tried as civil actions to the court without a jury. The district
court shall set the hearing on the contest action not more than ten days after the filing of the
contest answer. Election contests must take precedence over regular court business so
elections are determined as soon as practicable. The district court judge shall order a special
term of the court if no term is in progress when the election contest complaint is filed.
### § 16.1-16-07. Contest involving irregularity of ballots - Preservation of ballots.

Either the contestant or the contestee, within the time provided by this title for the
preservation of ballots, may give notice by certified mail to the county recorder of any county
where the contestant or the contestee desires the ballots preserved, that an election contest is
pending in a designated court. After receipt of the notice, the county recorder shall preserve all
the ballots and associated records until the contest has been finally determined or the retention
period specified in section 16.1-15-13 has ended, whichever is later.
### § 16.1-16-08. Judgment in election contest action.

1. The judge in an election contest action shall pronounce judgment on which candidate
was elected or nominated and whether any question or proposition was approved or
rejected.
2. The appropriate officer shall issue a certificate to the person declared elected or
nominated in accordance with the judgment. Any certificate of nomination or election
previously issued that is in conflict with the judgment is annulled by the court's
judgment.
3. If the court declares that the election resulted in a tie, the election must be determined
by law.
4. If the court declares that no one was elected or nominated and sets aside the election,
the office must be deemed vacant and any certificate of election or nomination
previously issued is annulled. The vacancy must be filled according to law. This
subsection does not apply if an incumbent is in office and is entitled to serve until a
successor is duly elected and qualified, in which event the incumbent may only be
removed by impeachment.
5. In the discretion of the court, court costs may be awarded on the following bases:
a. If the contest action is dismissed for insufficient evidence or want of prosecution,
or if the court confirms the election results, judgment for costs must be for the
contestee and against the contestant.
b. If an election is annulled for errors or malfeasance of any election official during
any part of the election procedure, the costs must be a charge against the state
or political subdivision in which the election was held.
c. When an election is annulled on any other ground or when the contestant is
declared elected, judgment for costs must be for the contestant and against the
contestee.
6. Nothing in this chapter may be construed to authorize a nomination or election to be
set aside because of illegal votes unless either of the following is shown, that:
a. The contestee had knowledge of or connived in the illegal votes.
b. If the number of illegal votes is taken from the contestee, it would reduce the
number of the contestee's legal votes below the number of votes cast for some
other person for the same nomination or election, after deducting any illegal votes
from the other person.

### § 16.1-16-09. Appeal of election contest judgment.

An appeal to the supreme court of the judgment in an election contest action may be had by
filing a notice of appeal with the clerk of the supreme court within ten days of the date of the
service of notice of entry of the judgment. Appeals of election contest actions must be
conducted in the manner provided by the North Dakota Rules of Appellate Procedure. Election
contest appeals must take precedence over regular court business so election results can be
determined as soon as practicable. An appeal may be brought on for hearing before the
supreme court at any time upon ten days' notice by either party and must be determined in a
summary manner.
### § 16.1-16-10. Legislative contest of election.

Legislative election contests must be determined in court as provided in this chapter for
other contests. No legislative election may be contested before either house of the legislative
assembly.
### § 16.1-16-11. Answer to legislative statement of contest.

Repealed by S.L. 1987, ch. 259, § 15.
### § 16.1-16-12. Depositions - Subpoenas - Time limits.

Repealed by S.L. 1987, ch. 259, § 15.
### § 16.1-16-13. Preservation of ballots.

Repealed by S.L. 1987, ch. 259, § 15.
### § 16.1-16-14. Testimony and records filed with secretary of state - Secretary of state to

deliver to presiding officer.
Repealed by S.L. 1987, ch. 259, § 15.
### § 16.1-16-15. Determination of contest - Certificate of election.

Repealed by S.L. 1987, ch. 259, § 15.
### § 16.1-16-16. Fees of officers and witnesses.

Repealed by S.L. 1987, ch. 259, § 15.
### § 16.1-16-17. Payment for prosecuting or defending legislative election contest

prohibited.
Repealed by S.L. 1987, ch. 259, § 15.
