By Adam Pagnucco.
As the elections for the Montgomery and Baltimore County Executives are very close, as are a few others like the District 16 House race, Maryland’s recount procedure is relevant. It is contained in Md. Election Law Code Ann. § 12-101 through § 12-107.
“A candidate for public or party office who has been defeated based on the certified results of any election conducted under this article may petition for a recount of the votes cast for the office sought.” The petition must be filed within three days after the results of the election have been certified and may request a recount in all precincts or just some precincts. An opposing candidate may file a counter-petition if the results of the election are changed or if the original petition only addresses some precincts and the opposing candidate requests that all precincts be recounted. On a ballot question, a registered voter eligible to vote on the question may file a petition for a recount. A registered voter may file a counter-petition on that ballot question if the original petition did not specify all precincts or the result is changed. Bonds are due from the petitioner and/or counter-petitioner to cover the cost of the recount.
Recounts are conducted by the appropriate local board(s) of election. The State Board of Elections will monitor and support the work of the local board(s).
Petitioners are responsible to pay the cost of the recount with the following exceptions laid out in § 12-107(b)(2).
(i) the outcome of the election is changed;
(ii) the petitioner has gained a number of votes, for the petitioner’s candidacy or for or against the question that is the subject of the petition, equal to 2% or more of the total votes cast for the office or on the question, in all precincts being recounted; or
(iii) 1. the margin of difference in the number of votes received by an apparent winner and the losing candidate with the highest number of votes for an office is 0.1% or less of the total votes cast for those candidates;
2. in the case of a question, the margin of difference between the number of votes cast for and the number cast against the question is 0.1% or less.
If the petitioners are not responsible for paying the recount cost, the county must pay.
In the case of the Montgomery County Executive candidates, the recount payment threshold, which is “the margin of difference in the number of votes received by an apparent winner and the losing candidate with the highest number of votes for an office is 0.1% or less of the total votes cast for those candidates” is approximately 70 votes since Marc Elrich and David Blair together received roughly 70,000 votes. Our hunch is that either campaign would be willing to bear the cost of a recount if necessary although how Elrich would finance a bond while in the fundraising constraints of public financing is an interesting question for lawyers to consider.