§ 17-6-28 — Requirements for Write-In Votes

(a) Write-in votes shall be permitted only in non-municipal general elections and shall be counted as provided in this section based on one of the following:
(1) Upon a determination that the number of write-in votes for a specific office is greater than or equal to the difference in votes between the two candidates receiving the greatest number of votes for the specific office.
(2) Upon a written request satisfying the requirements in subsection (i).
(b) The ballot for a non-municipal general election must be constructed so that the voter can mark a write-in vote for each office in the same manner that votes are registered for regular candidates. In order to cast a valid write-in vote, the voter must (1) write the name on the ballot and (2) register the vote by a mark in the space designated for that office. A write-in vote that is not registered as provided above shall not be considered a valid write-in vote and shall not be included in determining the number of write-in votes cast for a specific office as required in this section. If a voter registers a vote for a name on the ballot and then writes in another name for the same office but fails to register the write-in vote, the ballot shall be treated as if no write-in vote had occurred and the regular vote shall be counted. If a properly registered write-in vote causes an over-vote, it shall be treated as any other over-vote and none of the votes for the over-voted office shall be counted. However, the remainder of the ballot shall be counted. When counting write-in votes, poll officials must check for over-votes if the electronic ballot counter does not perform the function.
(c) Upon the closing of the polls, all write-in votes, which may be in the form of a ballot or, if an electronic voting system is utilized in the polling place, a ballot image, results tape, or other media as prescribed by the Secretary of State by administrative rule, from each polling place in the county shall be returned to a central location in the county as determined by the judge of probate where the canvassing board shall determine the number of write-in votes cast for each office on the ballot, ballot image, results tape, or other media as prescribed by the Secretary of State by administrative rule. The chair of each local political party as defined in Section 17-13-40, any person whose name is on the ballot as an independent, and any announced or known write-in candidates shall be given a minimum of 24 hours notice of the time and place where the canvassing board will meet to determine the number of write-in votes cast for each office on the ballot, ballot image, results tape, or other media prescribed by the Secretary of State by administrative rule and shall be permitted to be present when the determination is made. The county, at its discretion, may appoint and compensate poll workers to assist the canvassing board in determining the number of write-in votes for each office. After the determination of the number of write-in votes cast for each office has been made, the canvassing board shall take the following actions:
(1) For federal and state offices on the ballot, prepare and transmit to the Secretary of State not later than 5:00 p.m. on the first Friday following the election a written report itemizing the number of write-in votes cast for each separate federal or state office on the ballot and the total votes cast for each of the candidates receiving the greatest number of votes for each federal or state office on the ballot in the county.
(2) For each specific county office on the ballot, determine whether the number of write-in votes cast is greater than or equal to the difference in votes between the candidates receiving the greatest number of votes for the specific county office.
(3) Post a notice stating the number of write-in votes cast in each office on the ballot and, for each specific county office on the ballot, stating whether the number of write-in votes cast for the office is greater than or equal to the difference in votes between the candidates receiving the greatest number of votes for the specific county office. The notice shall be posted on the door of the courthouse and any other place deemed appropriate by the canvassing board including, but not limited to, a county website.
(d) Upon determining the number of write-in votes as required in subsection (c), all ballots, ballot images, or results tapes with write-in votes shall be delivered to the sheriff who shall securely keep the ballots, ballot images, or results tapes in the same manner as provisional ballots are kept pursuant to subsection (d) of Section 17-10-2.
(e) Upon receipt of all county reports setting out the number of write-in votes for each federal or state office, the Secretary of State shall determine whether the number of write-in votes cast statewide for any specific federal or state office is greater than or equal to the difference in votes between the candidates receiving the greatest number of votes for that office. In the event the Secretary of State determines that the number of write-in votes cast statewide for any federal or state office is greater than or equal to the difference in votes between the candidates receiving the greatest number of votes for that office, not later than noon on the first Monday following the election, the Secretary of State shall notify each judge of probate from a county where write-in votes for that office were cast that the write-in votes for that office shall be counted and reported as provided in this section.
(f) When the number of write-in votes for any specific office is greater than or equal to the difference in votes between the candidates receiving the greatest number of votes for that office write-in votes shall be counted at the same time and in the same manner as provisional ballots are counted pursuant to subsection (f) of Section 17-10-2.
(g) Any qualified elector who disputes the determination regarding the counting of write-in votes cast for any particular office on the ballot made by either the canvassing board or the Secretary of State may file a written objection as follows, stating with specificity the grounds for objection:
(1) For objections to the determination made by a canvassing board for a specific county office, the objection shall be filed with the canvassing board prior to the date ballots are due to be counted pursuant to subsection (f).
(2) For objections to the determination made by the Secretary of State for a specific federal or state office, the objection shall be filed with the Secretary of State prior to the date ballots are due to be counted pursuant to subsection (f).
Any written objection filed pursuant to this subsection shall be reviewed by the canvassing board for objections filed under subdivision (1) or by the Secretary of State for objections filed under subdivision (2). If it is determined the objection has merit, write-in ballots cast in the office subject to the objection shall be counted pursuant to subsection (f).
(h) Any expenses incurred by a county for the counting of write-in votes shall be a reimbursable expense as provided in Chapter 16.
(i) In addition to the requirement to count write-in votes as provided in this section, any qualified elector who voted in an election may request that write-in votes for a specific county office on a ballot be counted provided the request is made in writing to the judge of probate in the county where the elector voted no later than 5:00 p.m. on the first Friday following the election and is accompanied by a bond or certified check in an amount sufficient to cover the cost of the count as determined by the judge of probate. Any qualified elector who voted in an election may request that write-in votes for a federal or state office on a ballot to be counted, provided the request is made in writing to the Secretary of State not later than 5:00 p.m. on the first Friday following the election and is accompanied by a bond or certified check in an amount sufficient to cover the cost of the count as determined by the Secretary of State. Any write-in vote count authorized under this subsection shall take place at the same time and in the same manner as provisional ballots are counted pursuant to subsection (f) of Section 17-10-2.

Legislative History

(Act 2006-570, p. 1331, §32; Act 2016-450, 1st Sp. Sess., §1.)