Texas Recount Laws: Is a Recount a Possibility for Cruz vs. Beto?

Getty Ted Cruz vs Beto O'Rourke

The Texas Senate race between Ted Cruz and Beto O’Rourke has been called, with Ted Cruz now declared the winner. The race was very close, and at times the results bounced back and forth between Cruz and O’Rourke. At some points, O’Rourke had a steady lead, but then near the end Cruz picked up a number of votes as more precincts reported, to take the lead. The race was very close, but is a recount even possible? Read on for details.

As of 9:20 p.m. Central, Ted Cruz had a reported 50.9 percent of the votes with a total of 3,144,235 votes. Beto O’Rourke was close behind with 48.4 percent and a total of 2,992,714 votes. Some precincts are still reporting in, CNN reported.

According to Texas law, a recount can be requested if the difference in votes between the winner and the person petitioning a recount is less than 10 percent of the number of votes received by the person elected. It’s a little complicated, so the Texas Secretary of State provides an example. If Jane Doe got 2,000 votes and John Doe got 1,850 votes, the difference between their votes is 150 votes. In this case, 10 percent of 2,000 votes (the votes the winner got) would be 200. In that situation, John Does could request a recount.

Here’s exactly how the law [Sec. 212.022 – 212.0241, Section A] is worded on the Texas Secretary of State’s website:

Difference between number of votes received by petitioner and number of votes received by the person who was elected or is entitled to a place on the runoff election ballot is less than 10% of the number of votes received by the person elected or entitled to a place on the runoff ballot (same formula for votes for and against a measure).

Other grounds may be if the total votes received by all candidates is less than 1,000, or if an election judge swears he counted paper ballots incorrectly.

Interestingly, Texas law states that no ground is needed to request a recount of electronic votes: “No ground required for recount of electronic system results. [Sec. 212.0241].”

If you want to read exactly how the recount law is worded in Texas law, and not just summarized by the Secretary of State, you can see the webpage here. The relevant section reads:

Sec. 212.022. OBTAINING INITIAL RECOUNT IN ELECTION ON OFFICE. Except as provided by Section 212.0241, a candidate for nomination or election to an office may obtain an initial recount in an election in which the person was a candidate if:

(1) the difference in the number of votes received by the candidate and any candidate for the office who is shown by the election returns to be nominated, elected, or entitled to a place on a runoff ballot or tied for nomination, election, or entitlement to a place on a runoff ballot is less than 10 percent of that candidate’s number of votes…”

Here’s how this would translate for Cruz and Beto. If the 9:20 p.m. vote count was the final count (3,144,235 for Cruz versus 2,992,714 for Beto), that would mean that Ted Cruz led by 151,521 votes. Ten percent of Ted Cruz’s vote count would equal 314,423 votes. So that means the difference in their votes was less than 10 percent of Cruz’s total votes as of 9:20 p.m. So in that situation, yes it appears that O’Rourke might be able to request a recount.

The Secretary of State’s website says that O’Rourke would have to request a recount to the presiding officer of the final canvassing authority. The deadline for filing is listed as the following:

a) Except as provided by Subsection (b), a petition for an initial recount must be submitted by the later of:

(1) 5 p.m. of the fifth day after election day; or

(2) 5 p.m. of the second day after the date the canvassing authority to whose presiding officer the petition must be submitted completes its canvass of the original election returns.

(b) A petition for a winning candidate in response to an opposing candidate’s petition as described by Section 212.0241(b) must be submitted not later than 48 hours after receipt of the notice of approval under Section 212.032.

Of course, the final determination on whether or not O’Rourke could request a recount depends on the final vote total. O’Rourke has not yet said anything publicly about whether or not he would consider requesting a recount.

In the case of a candidate-initiated recount, the initiator can choose the counting method. If votes were cast on paper ballots, the requestor can seek a hand count of the ballots. They can also choose retabulating on automatic tabulating equipment, CEIMN reported. These recounts are referred to as “initial recounts.” Supplementary recounts can happen if the initial recount was only partial, but only in very specific circumstances. Voters can only request recounts for ballot measures, CEIMN reported.

In Texas law, a recount only automatically happens if there’s a tie, according to Tex. Elec. Code §216.001. In these situations, the counting method is the same as what was used for the election, leading to a mix of recount, retabulation, and electronic review, CEIMN reported.