This information was updated February 2016 Using the Tennessee Code (Tenn. Code) current through the 2015 Regular Session of the Legislature.
We are unable to link to individual statutes, but the index for and links to all statutes cited below can be found under Title 2 "Elections" at: http://www.lexisnexis.com/hottopics/tncode
Mixed paper ballot and DREs without VVPAT
In 2008, Tennessee passed the Tennessee Voter Confidence Act, requiring all 95 counties to use optical scan voting systems with paper ballots by the November 2010 general election. In 2010, the Tennessee Voter Confidence Act was amended to delay implementation of this requirement until “no later than the general election in 2012” (Public Chapter 612). In 2011, the act was amended again to remove the requirement and instead make it optional for counties to use optical scan voting systems (Public Chapter 301). Currently, only three counties use optical scan voting systems with paper ballots as their polling place equipment.
For more details, visit Verified Voting.
Mix of recount, retabulation and electronic review
Counting method chosen by election official
The count may be by hand or by retabulation. Tenn. Code Section 2-17-117(c) provides that “[t]he court or body with jurisdiction of a contested election shall determine if the recount shall be conducted by hand or with automated tabulators.” Most counties in Tennessee currently use only direct-recording electronic machines (DREs) without a voter-verified paper audit trail (VVPAT). This means that for most votes cast in Tennessee, only an electronic review can be conducted. During contests, for example, “any party to the contest who challenges either the accuracy of the voting machines or the accuracy of the election officials' recording of the vote on the machines may have the machine or machines brought into court to be examined by the parties or as evidence,” but “[t]he total votes shown on the machine shall be conclusive unless the court finds reason to believe that the vote shown on the machine is not accurate.” Tenn. Code Sections 2-17-110(a) and (b).
Tennessee statute allows “any court, primary board, legislative body, or tribunal” with jurisdiction over election contests to initiate a recount of ballots for both general and primary elections, but only under limited circumstances. These include a tie vote; an indication of fraud, or the malfunction of a voting machine, in each case in sufficient amounts to alter the election outcome; or “any other instance” in which such a body “finds that a recount is warranted.” Tenn. Code Section 2-17-117(a). If a recount is ordered, all ballots cast in the election must be recounted. Tenn. Code, Section 2-17-117(b).
“The incumbent office holder and any candidate for the office may contest the outcome of an election for the office,” and “[a]ny campaign committee or individual which has charge of a campaign for the adoption or rejection of a question submitted to the people may contest the election on the question.” Tenn. Code Section 2-17-101(b). An election contest must be initiated by one of the foregoing before it proceeds to the recount stage. However, as discretion to initiate the recount itself lies entirely with the court – there is no mention of a petitioner’s ability to ask the court for a recount, only of the court’s power to order one - we have classified this as a “court-ordered recount” only.
Timing: Tenn. Code Section 2-17-105. Tenn. Code Section 2-17-106(a).
While a court may initiate a recount in the instance of a tie vote, please note that the statutory language does not mandate that they do so; it only states that the court “may” order a recount. Tenn. Code Section 2-17-117(a). Note also that in the absence of a contest, ties will be resolved in other ways, although not through the conduct of a recount. In general, the state election commission will cast the deciding vote, except that the county or municipal legislative body may either cast the deciding vote or call for a run-off election in the case of elections under their respective jurisdictions; a joint session of the general assembly will cast the deciding vote in the case of elections for governor; the governor will cast the deciding vote in the case of elections for representatives in congress; and tie votes in senate elections shall void the election and a new one will be ordered. Tenn. Code Section 2-8-111.
Candidates may initiate election contest proceedings, Tenn. Code Section 2-17-101(b), through which a court may then order a recount. Tenn. Code Section 2-17-117(a). As noted above, the candidates cannot request the recount directly; that is left up to the discretion of the court and is only authorized under certain circumstances.
“Any campaign committee or individual which has charge of a campaign for the adoption or rejection of a question submitted to the people may contest the election on the question.” Tenn. Code Section 2-17-101(b). As in the case with candidate-initiated contests, in its discretion and only under certain circumstances, the court may order a recount. Tenn. Code Section 2-17-117(a).
No statutory guidance for recount observers
No statutory guidance for recount challengers
We found no specific statutes governing observers or challengers during the court-ordered recount process, or requiring that recounts be conducted publicly.
Statutory guidance provided
As noted above, almost all voting in Tennessee is conducted on DRE voting machines without a VVPAT. Although DRE voting machines sometimes have touch screen calibration issues that may cause votes to be cast for a candidate other than the one the voter intended (commonly referred to as “jumping X” issues because when a voter presses the box next to one candidate’s name, the calibration issue causes the “X” that is then illuminated to show up next to a different candidate’s name), the voters themselves cannot make ballot marking errors per se because there are no ballots. However, with respect to the three counties that offer paper ballots at the polls, and with respect to paper absentee ballots, rules applicable to the counting of irregularly marked ballots and determining voter intent can be found in Tenn. Code Section 2-7-133.
State has audit laws
The Tennessee Voter Confidence Act provides for mandatory hand counted audits for the “top race” in all general elections where precinct-based optical scanners are used. Tenn. Code 2-20-103(a)(1). As noted above, however, only three counties in Tennessee currently use precinct-based optical scanners, and therefore full implementation of this Act has yet to occur.