Judicial Recount Handbook
4. Process for Determining Disputed Ballots
4.1. Steps Where There Are Disputed Ballots
If, after any representations from a candidate's representative who is not a member of a recount team or from the candidate's legal counsel, there is no unanimous agreement on the classification of a ballot, the ballot shall be treated as a disputed ballot, in which case: [s. 13(g) of Sch. 4]
- the handler shall take the ballot from the counting pile, print on the back of the ballot (with the pen or pencil supplied to the recount team in small but legible script) a number in the form “XX-Y”, where “XX” is the ballot box number and “Y” is a unique sequential number starting at 1 for each disputed ballot within that box,
- the recorder shall make an entry for the disputed ballot in the register of disputed ballots in the Recount Ballot Box Report, indicating its number and the envelope from which it originated, and
- the handler shall put the disputed ballot with an additional envelope marked “Disputed Ballots.”
The disputed ballots are counted after the counting of the other envelopes in the ballot box has been completed.
When all envelopes from the ballot box, except those designated as containing spoiled ballots and unused ballots, have been recounted, the handler shall:
- Count the disputed ballots.
- Place them in the disputed ballots envelope.
- Indicate the number of the corresponding ballot box on the envelope. [s. 14(1)(a) of Sch. 4]
The recorder shall:
- Note the number of disputed ballots on the Recount Ballot Box Report.
- Confirm the accuracy of the report with the recount team.
- Invite the candidates' representatives to initial the report.
- Attach the report to the disputed ballots envelope, together with the corresponding original Statement of the Vote. [s. 14(1)(b) of Sch. 4]
The handler shall not seal the envelope containing rejected ballots, if any, or the envelopes for each candidate, and shall place the envelopes, including the unsealed disputed ballots envelope, in the ballot box along with the Recount Ballot Box Report, the corresponding original Statement of the Vote and the large envelope (poll bag). [s. 14(1)(c) of Sch. 4]
When these steps are completed, the handler shall signal by raised hand that the recount team has completed its work with that ballot box. [s. 14(3) of Sch. 4]
Section 16 of Schedule 4 contemplates that the returning officer, after receiving delivery of the recounted ballot box, will determine whether it contains a disputed ballots envelope before the judge directs photocopies of the disputed ballots to be made and sets a time to determine their classification. However, s. 23 of Schedule 4 empowers the judge to alter the procedures after giving the parties and the returning officer the opportunity to make submissions. It may be practical to rely on s. 23 to have the photocopies of the disputed ballots made before the handler of the recount team signals for the return of the ballot box to the returning officer.
Photocopies must be made of the front and back of each disputed ballot: one for each party (candidate, candidate's representative and candidate's legal counsel) and one for the judge. Then the disputed ballots are returned to the disputed ballots envelope. Having a runner carrying a disputed ballot box from the counting table to the photocopier is useful. Having a dedicated person making photocopies has also proven efficient. [s. 18(a) of Sch. 4]
After all disputed ballots in the disputed ballots envelope have been photocopied, the disputed ballots envelope shall then be returned to the ballot box. The box could then be delivered to the returning officer, who then places it in a secure location designated by the judge and brings the Recount Ballot Box Report to the judge. [ss. 18(b) and 23 of Sch. 4]
Counsel are permitted to keep photocopies of the disputed ballots since they are part of the record of the proceeding.
4.2. Determining the Classification of Disputed Ballots
The judge shall set a time for the determination of the classification of the disputed ballots. The judge may wish to make a determination on disputed ballots for each ballot box instead of waiting until the end of the recount. If the judge decides to determine the classification of disputed ballots for each ballot box after the recount of that ballot box has been completed, it may be practical to have the photocopies made before the handler of the recount team signals for the return of the ballot box to the returning officer. See Section 18.104.22.168. above for the pros and cons of deciding on disputed ballots earlier or later on in the proceedings. [s. 18(c) of Sch. 4]
Before the judge makes a determination with respect to a disputed ballot, each party may make submissions. Unless the judge decides otherwise, for the purpose of making submissions, any party opposing the original classification of the ballot will be considered an applicant, and all other parties will be considered respondents. [s. 18(c) of Sch. 4]
The judge may alter any of the procedures during the recount after giving the candidates, their representatives and legal counsel and the returning officer the opportunity to make submissions. [s. 23 of Sch. 4]
4.3. Determination of the Judge on a Disputed Ballot
The judge shall, in the Recount Ballot Box Report:
- indicate in writing the determination with respect to each disputed ballot; and
- complete his or her disposition portion of the report.[s. 18(d) of Sch. 4]
The judge must cause each ballot for which a determination has been made to be placed into the appropriate envelope corresponding to the determination and shall cause the envelopes to be sealed and placed in the large envelope (poll bag) and the large envelope to be sealed and placed in the ballot box. [s. 18(e) of Sch. 4]
The judge shall sign the Recount Ballot Box Report, which shall be given, with the judge's disposition noted on it, to the person responsible for the preparation of the Master Recount Report (a staff member of the returning officer) along with the original Statement of the Vote. [s. 18(g) of Sch. 4] A copy of the Master Recount Report is included in Appendix E (Form 4) of this handbook.
4.4. Location of Ballot Box After Dispute Resolved
The judge must cause the ballot box and its contents to be sealed and placed in a secure location designated for ballot boxes for which the recount has been completed. [s. 18(f) of Sch. 4] (See Sections 2.5.4 and 2.8.1. above.)