§ 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.