Original question:

I work for a research institute and I would like to know if the ballot paper could be legally considered as a public document or not:

• Is it possible that a citizen - or group of citizens - can ask the electoral institutions to have access to the ballots to do a recount?
• Do you know if any country has some experience in this field or legislation concerning this issue?

I will very much appreciate your help.

Responses were received, with thanks, from:

• Tim Meisburger

• Alan Wall

• Carlos Navarro
• Domenico Tuccinardi
• Maria Helena Alves

Summary:

Recounts can be called when an election has been close, or when someone has a reason to believe that the first count has not been conducted correctly. The specific conditions under which recounts are allowed and the provisions for how the recounts are to be carried out and by whom are usually specified in the electoral law and vary from country to country. 

In most countries however, the recount is carried out by the election commission or by another government body linked to the election management or administration. Allowing access to the actual ballots to others - election condenders, voters, NGOs or others - would bring with it the risk of those carrying out the recount changing, defacing or destroying the ballots and thereby obstructing any additional recount should one be necessary. 

Instead, the way in which the public is usually involved is through officiall or unofficial observation at the first count and at any subsequent counts and by having access to records of ballot counts down to polling station level.

The legislation which could clash with this safekeeping of ballots is any legislation on public access to official documents as we can see in the case of Mexico (see full response from Carlos Navarro below). There is no universally accepted definition of exactly what an official document is, but so far there are very few examples of when ballots have been considered official to the point where they can be accessed by anybody - for the very reasons stated above.

Links to the ACE Encyclopaedia and other related resources:

• ACE Electoral integrity and independent observers
• ACE Encyclopaedia: Electoral integrity and interest group organizations
• ACE Encyclopaedia: Electoral integrity and vote counting
• ACE Encyclopaedia: Electoral integrity and complaints and appeals
• ACE Encyclopaedia: Vote counting and judicial recounts
• NY Times Article: Judge in Ohio Tells Counties To Preserve 2004 Ballots 

Quote from the ACE Encyclopaedia on recounts:

"A recount is usually held if a candidate or party challenges the vote count because there is reason to believe that the count was inaccurate. It may be that ballots were improperly counted or rejected, or that election officers improperly carried out the tabulation of results. Some systems provide for an automatic recount in a close election."

Individual responses in full:

Tim Meisburger: Usually it is not possible to grant access to a citizen - or group of citizens - to the ballots for a re-count, because of the danger they might change or deface the votes.

Typical public participation would be as official or unofficial observers of a re-count conducted by election officials.

Alan Wall: I fully agree with Tim. It would be highly unusual for a non official body - one other than the EMB or relevant electoral judiciary/judiciary related officials - to have access to the actual ballots. 

The opposite - a legal prohibition on observer/citizen/non-official groups handling ballots, for the reasons Tim notes - is  more in line with general attitudes. Used/unused ballots post election day would generally be regarded as accountable materials to be held under strict security - at least until all election challenges are finalised.

What is common is for observer/party groups to have access to observe recounts, as Tim notes, and also:

1. Have access to/copies of records of ballot counts down to polling station level, as data to feed in to unofficial quick counts, and/or for later comprehensive checking against official results; and
2. Observers/party agents/citizens at ballot counting locations maintaining their own parallel tallies of the ballots being counted.

Carlos Navarro: In line with Tim and Alan arguments, I don't know of any legal provision, at least in Latin America, that recognizes or grants public access to actual ballot papers for a recount or else.

Paper ballots and other relevant documents for the election are usually kept under security conditions until the very end of the electoral process, and even for an additional period after that, and then destroyed.

Nevertheless, I'd like to refer to a couple of interesting experiences, both related with highly controversial and close tight elections:

1. US Presidential elections of 2000. A consortium of eight mass media (AP; CNN; NYT; WSJ; Washington Post; St. Petersburg Times; Palm Beach Times and the Chicago Company-owner ol LA Times and Chicago Tribune among other media outlets) formally requested a recount of votes in the State of Florida after George W. Bush was formally declared President by the Supreme Court.  The consortium followed all legal procedures at hand (for sure, a legal provision to conduct an unofficial and public recount not included), and finally obtained  formal authorizations required to conduct the recount. To do so, they hired the services of the National Opinion Research Center of the University of Chicago, who conducted the recount of more than 6.1 million of votes cast for the presidential elections in the 67 counties of the State. The NORC employed more than 150 professional staff for this activity, that lasted from February through May 2001. 
2. Mexico's (July 2006) Presidential elections. By now, you are probably familiar with the formal end of the story, and maybe also its origins and evolution. But if you don't, a brief background might be useful: Since the moment preliminary results confirmed a narrow margin victory of the candidate of the conservative National Action Party (PAN) (less than 250,000 votes or 0.6% of around 42 million votes casted nation wide), the candidate of the leftist coalition - supposedly defeated - requested a total recount. His claim was not accepted by the Electoral Tribunal, that only ordered a partial recount of the votes cast in about 9% of the polling stations.

The point is that by the end of July, while the Electoral Tribunal was still dealing with formal complains and challenges to the election, one of the top magazines in Mexico (Proceso) formally requested the Federal Electoral Institute (IFE the Federal EMB in Mexico) to have access to ballot papers and copies of all other relevant documentation to conduct an independent recount, once all disputes were solved and the electoral process was formally concluded.

The magazine based their request on the provisions of the Federal Act on Transparency and Access to Government Public Information. The issue has become hotly contested since what is at stake is whether ballot papers are covered or not by the provisions of that Federal Act. IFE has announced that, according to electoral law, paper ballots and other electoral material shall be destroyed (burned up) after formal conclusion of the elections (which ocurred early September 2006); defeated candidates and followers have kept their claim of total recount and the elected President has asked the IFE not to proceed to destroy the ballot papers.

As you may see, is a current and highly controversial issue.

Domenico Tuccinardi: I agree in principle with the other colleagues that access to ballots after elections is normally limited to the election adjudication body until complaints are finally solved.

However, I recently came across in the Electoral Law of Montenegro a provision that foreees a so called right of insight into the elections material for political parties up to five days after the announcement of the results at the polling station level.

The losing coalition in the independence referendum tried to interpret extensively this prerogative granted by the Law to do a recount of the ballots. The Electoral Commission decided, at the end, that such right would include the possibility to photocopy the ballots, without recounting them.

Helena Alves: For all interested on the issue of accessing voted ballots (and further to Carlos' comments), please see the NY Times article on preservation of ballots for a possible recount.