(a) Return of Supplies and Certificates. Within twelve hours after completion of the counting; tabulation and declaration of the result of the election in each precinct, one of the Commissioners at such precinct, designated for that purpose, shall return to the Clerk of the City the ballot boxes, registration list and the several packages of ballots, poll books, tally sheets, certificates, and all other election supplies and returns, except he shall deliver to the Clerk of the City, within the same time, packages containing one poll book, one tally sheet, (and one certificate of each political party if it is a primary election) prepared and sealed which shall be kept for Council.
(b) Precinct Returns; Certificates; Procedures. As soon as the results are ascertained, the Commissioners of Election and Poll Clerks at each place of voting shall make out and sign four certificates thereof, in the following form or to the following effect: "We, the undersigned, who acted as Commissioners and Poll Clerks of the election held at precinct No. __ in the district , and County of , on the day of , do certify that, having been first duly sworn, we have fairly and impartially held the said election according to law,
and the result thereof is as follows: For the office of , (here designate the office, as for example, 'Delegate for the County of Barbour', or 'Senator. for the first senatorial district', 'Judge for the first circuit,' 'Representative in the Congress of the United States for the first congressional district', 'Governor of the State', 'Judge of the supreme court of appeals', 'Justice
of the peace of said district', and so forth, as the case may be), 'A.B. received votes, C.D. votes, E.F. votes', and so on throughout stating, according to the truth, the full name of every person voted for, for every office, and in words at length, and also in figures, the number of votes received; and concluding as follows:
Given under our hands this day of ." The certificates shall contain complete returns of the polls taken at such place of voting for every office to be filled, and shall be sealed and disposed of as provided by State law for certificates as to the result of an election. When the certificates are signed, the ballots shall be enclosed by the Commissioners in an envelope which they shall seal up, and write their names in ink across the place or places where it is sealed, and endorsed in ink on the outside of the envelope as follows: "Ballots of the election held at precinct No. , in the district of , and county of city of , the day of _______."
(c) Canvass of Returns; Recounts; Preservation and Subsequent Destruction of Ballots, Records. Council shall be ex officio a Board of Canvassers, and, as such, shall keep in a well-bound book, marked "election record", a complete record of all their proceedings in ascertaining and declaring the result of every election in our respective City. They shall convene as such Canvassing Board at the City building on the fifth day (Sundays excepted) after every election held in this City, and the officers in whose custody the ballots, poll books, registration records, tally sheets and certificates have been placed shall lay the same before them for examination. They may, if deemed necessary, require the attendance of any of the Commissioners, Poll Clerks or other persons present at the election, to appear and testify respecting the same, and make such other orders as shall seem proper, to procure correct returns and ascertain the true result of the election in their City; but in such case all the questions to the witnesses and all the answers thereto, and evidence, shall be taken down in writing and filed and preserved. All orders made shall be entered upon the record. They may adjourn from time to time, but no longer than absolutely necessary, and, when a majority of the Commissioners are not present, their meeting shall stand adjourned until the next day, and so from day to day, until a quorum be present. The Board shall proceed to open each sealed package of ballots so laid before them, and without unfolding them, count the number in each package and enter the same upon their record. The ballots shall then be again sealed up carefully in a new envelope, and each member of the Board shall write his name across the place where such envelope is sealed. After canvassing the returns of the election, the Board shall, upon the demand of any candidate voted for at such election, open and examine any one or more of the sealed packages of ballots, and recount the same; but in such case they shall seal the same again, along with the envelope above named, and the Clerk of the City and each member of the Board shall write his name across the place or places where it is sealed, and endorse in ink, on the outside: "Ballots of the election held at precinct No. , in the district of , and County of , in the City of , on the day of ." Every candidate who demands such recount shall be required to furnish bond in a reasonable amount with good sufficient surety to guarantee payment of the costs and the expenses of such recount in the event the result of the election be not changed by such recount; but the amount of such bond shall in no case exceed three hundred dollars ($300.00). When they have made their certificates and declared the results as hereinafter provided, they shall deposit the sealed packages of ballots, absentee voter ballots, registration records, poll books, tally sheets, and precinct certificates with the Clerk of the City for whom they were received, who shall carefully preserve the same for sixty days, and if there be no contest pending as to any such election, and their further preservation be not required by any order. of a court, such ballots, poll books, tally sheets and certificates shall be destroyed by fire or otherwise, without opening the sealed packages of ballots; and if there be such contest pending, they shall be so destroyed as soon as the contest is ended; provided, that the poll books shall be preserved until such time as the Clerk of the City has completed the duties imposed upon him by this article. If the result of the election be not changed by such recount, the costs and expenses thereof shall be paid by the party at whose instance the same was made.
(d) Disposition of Certificates. The separate certificates of the Board of Canvassers shall be given to the Clerk of the City who shall notify the winner of the election.
(e) Tie Vote Procedure. Whenever Council, serving as the Board of Canvassers, is to declare the result of an election, and it appears to them that two or more persons voted for have received the highest and equal number of votes for the same office, so that the election to the office is not decided by the returns, they shall decide the tie by the election of one of such persons.
(f) Contest of Elections. Notices, Time.
(1) In all cases of contested elections, Council shall be the judge of the election, qualifications and returns of their own members, and of all City officers.
(2) A person intending to contest the election of a City office or any office that shall hereafter be created to be filled by the voters of the City, shall, within ten days after the result of the election is declared, give the contestee notice in writing of such intention, and a list of the votes he will dispute, with the objections to each, and of the votes rejected for which he will contend. If the contestant objects to the legality of the election, or the qualification of the person returned as elected, the notice shall set forth the facts which such objection is founded. The person whose election is so contested shall, within ten days after receiving such notice, deliver to the contestant a like list of the votes he will dispute, with the objections to each, and of the rejected votes for which he will contend; and, if he has any objection to the qualification of the contestant, he shall specify in writing the facts on which the objection is founded. Each party shall append to his notice an affidavit that he verily believes the matters and things set forth to be true. If new facts be discovered by either party after he has given notice as aforesaid, he may, within ten days after such discovery, give an additional notice to his adversary, with the specifications and affidavit prescribed in this section.
(g) Council to Hear Election Contests; Procedure; Review. Council shall hear and decide election contests. Subpoenas for witnesses for either party shall be issued by the Clerk of Council, and served as in other cases, and the witnesses shall be entitled to the same allowances and privileges, and be subject to the same penalties, as witnesses attending a circuit court in a civil suit. The notice of contest shall be presented to Council at its first term after the same is delivered to the person whose election is contested, and the same shall be docketed for trial in such Council. At the trial of such contest, Council shall hear all such legal and proper evidence that may be brought before it by either party, and may, if deemed necessary, require the production of the poll books, certificates and ballots deposited with its Clerk, and examine the same. The hearing may be continued by Council from time to time, if it be shown that justice and right require it, but not beyond three months of the day of the election. At the final trial of such contest Council shall declare the true result of such election, and cause the same to be entered on the records of Council. When the result of the election is declared, as aforesaid, a certified copy of the order declaring such result shall, if required, be delivered by the Clerk to the person declared elected, if such be the result of the trial, and such copy shall be received in all courts and places as legal evidence of the rest of the election therein declared. Either the contestant or contestee shall have the right of appeal to the circuit court of the county from the final order or decision of Council in such proceeding, upon .the filing of a bond with good personal security, by the party desiring the appeal, to be approved by Council, in a sum deemed sufficient by such Council with condition to the effect that the person proposing to appeal will perform and satisfy any judgment which may be rendered against him by the circuit court on such appeal. But such appeal shall not be granted unless the party desiring the appeal shall make application for such appeal, and file such bond, within thirty days from the entering of the final order in such proceeding; and the circuit court may at any time require a new bond or increase the penalty thereof when the court deems it necessary. When such appeal is taken to the circuit court, as hereinbefore provided, it shall be heard and determined upon the original papers, evidence, depositions and records filed before and considered by Council and the circuit court shall decide the contest upon the merits. From the decision of the circuit court, an appeal shall lie to the supreme court of appeals, as in other cases, but such appeal shall be heard upon the original papers and copies of all orders made, without requiring the same to be printed.
(h) Costs in Election Contests. The cost of every contested election shall include only the expenses of serving notices, taking depositions and the allowances to witnesses; and shall be noted at the foot of every deposition or set of depositions, by the person taking the same. If the contestant fails in setting aside the election, there shall be awarded against him the amount of such costs incurred or expended by the person who was returned or declared elected. Otherwise, each party shall pay his own costs; unless it appears that the person returned or declared elected was guilty of fraud or malpractice in the election, or in procuring such return or declaration, in which case costs shall be awarded against him in favor of the contestant. Where costs are awarded in favor of either party, the amount thereof shall be ascertained under direction of the house joint session, or court, which decided the case, and a certificate thereof, authenticated by the signature of the presiding officer, shall be delivered to the party in whose favor they are awarded, which certificate shall have the force of a judgment, and if such costs be not paid within ten days after the date thereof, the clerk of the city in which the party against whom the costs were awarded resides, may issue execution on such certificate, upon its delivery to such clerk, in like manner as upon a judgment of the circuit court.
(i) Filling Vacancies. Whenever any vacancy shall occur in any elective public office, Council shall fill such vacancy by appointment. Such appointment shall be effective until the next general election.
(1978 Code Secs. 6-39 to 6-47.)