32-1101. Contest of election other than member of Legislature; applicability of sections; grounds.

(1) Sections 32-1101 to 32-1117 shall apply to contests of any election other than the election of a member of the Legislature. The contest of the election of a member of the Legislature is subject to the Legislative Qualifications and Election Contests Act.

(2) The election of any person to an elective office other than the Legislature, the location or relocation of a county seat, or any proposition submitted to a vote of the people may be contested:

(a) For misconduct, fraud, or corruption on the part of an election commissioner, a county clerk, an inspector, a judge or clerk of election, a member of a counting or canvassing board, or an employee of the election commissioner or county clerk sufficient to change the result;

(b) If the incumbent was not eligible to the office at the time of the election;

(c) If the incumbent has been convicted of a felony unless at the time of the election his or her civil rights have been restored;

(d) If the incumbent has given or offered to any voter or an election commissioner, a county clerk, an inspector, a judge or clerk of election, a member of a counting or canvassing board, or an employee of the election commissioner or county clerk any bribe or reward in money, property, or thing of value for the purpose of procuring his or her election;

(e) If illegal votes have been received or legal votes rejected at the polls sufficient to change the results;

(f) For any error of any board of canvassers in counting the votes or in declaring the result of the election if the error would change the result;

(g) If the incumbent is in default as a collector and custodian of public money or property; or

(h) For any other cause which shows that another person was legally elected.

(3) When the misconduct is on the part of an election commissioner, a county clerk, an inspector, a judge or clerk of election, a member of a counting or canvassing board, or an employee of the election commissioner or county clerk, it shall be insufficient to set aside the election unless the vote of the county, precinct, or township would change the result as to that office.

Source

Cross References

Annotations

1. Nature of proceeding

2. Who may contest

3. Procedure

4. Other remedies

5. County seat elections

6. Miscellaneous

1. Nature of proceeding

This section is the exclusive method by which a school reorganization election may be attacked after the election is held, and a declaratory action is improper. Eriksen v. Ray, 212 Neb. 8, 321 N.W.2d 59 (1982).

It is ground for an election contest that illegal votes have been received or legal votes rejected sufficient to change the result. Plouzek v. Saline County Reorganization Committee, 181 Neb. 440, 148 N.W.2d 919 (1967).

This section does not apply to a school district election held for the purpose of contracting for the instruction of pupils. Farrell v. School Dist. No. 54, 164 Neb. 853, 84 N.W.2d 126 (1957).

The statutory proceeding to contest an election is a summary proceeding of a political nature and is not, strictly speaking, an action at law or in equity. Swan v. Bowker, 135 Neb. 405, 281 N.W. 891 (1938).

The right, conferred by statute on a candidate for public office to contest the election of his apparently successful rival, is a special statutory proceeding, and all the conditions prescribed for its exercise must be strictly followed. Landgren v. Hamilton, 133 Neb. 668, 276 N.W. 659 (1937); Wilson v. Matson, 110 Neb. 630, 194 N.W. 735 (1923).

An election contest is a summary proceeding of a political character tried before judges who serve in the capacity of election inspectors. Griffith v. Bonawitz, 73 Neb. 622, 103 N.W. 327 (1905).

The statute providing a method for contesting an election is complete within itself, including the manner of review in an appellate court. Mauck v. Brown, 59 Neb. 382, 81 N.W. 313 (1897).

A contest of election is an adversary proceeding by which the matters in controversy may be settled upon issues joined, and parties having an adverse interest to the contestant must be joined. Burke v. Perry, 26 Neb. 414, 42 N.W. 401 (1889).

A proceeding to contest an election is essentially a legal remedy, the object of which is to vacate the declared result of an election. Scott v. McGuire, 15 Neb. 303, 18 N.W. 93 (1883).

2. Who may contest

Proceedings under this section are available to contest election held under Reorganization of School Districts Act. Longe v. County of Wayne, 175 Neb. 245, 121 N.W.2d 196 (1963).

In an election contest, the contestant has the burden of proving that illegal ballots affected the result of the election. State ex rel. Brogan v. Boehner, 174 Neb. 689, 119 N.W.2d 147 (1963).

Election held for reorganization of school districts is subject to contest under this section. Arends v. Whitten, 172 Neb. 297, 109 N.W.2d 363 (1961).

There is no authority for a taxpayer and elector residing in a municipality to bring a proceeding to contest an election on the proposition of empowering the mayor and city council to compel a railroad company to provide viaducts over its tracks. Barnes v. City of Lincoln, 85 Neb. 494, 124 N.W. 99 (1909).

Under former law, residents and citizens of a proposed location of a county seat are not authorized to contest county seat election. Sebering v. Bastedo, 48 Neb. 358, 67 N.W. 148 (1896).

The first clause of this section gives to the taxpayers of a city the right to contest a city election on the question of giving financial aid to a railroad company. Foxworthy v. L. & F. R. R. Co., 13 Neb. 398, 14 N.W. 394 (1882).

3. Procedure

Irregularities in canvass of vote will not invalidate election. Haggard v. Misko, 164 Neb. 778, 83 N.W.2d 483 (1957).

Election contest was properly brought under subdivisions (5) and (6) of this section. Swan v. Bowker, 135 Neb. 405, 281 N.W. 819 (1938).

A contestant who alleges that illegal votes, sufficient to change the result of the election, were cast must prove for whom the illegal votes were cast before any votes can be eliminated. Mehrens v. Election Canvassing Board, 134 Neb. 151, 278 N.W. 252 (1938).

Election is not invalidated unless illegal votes are received and counted sufficient to change result. Mosiman v. Weber, 107 Neb. 737, 187 N.W. 109 (1922).

In proceeding to contest election, contestant may introduce in evidence properly preserved ballots without first making proof of charges in complaint. Frum v. Leamer, 101 Neb. 675, 164 N.W. 715 (1917).

A contestant is required to prove the material allegations of his complaint irrespective of whether the incumbent has formally answered. McWhorter v. Schramm, 97 Neb. 103, 149 N.W. 306 (1914).

The Legislature may constitute the Supreme Court a tribunal to decide contests of election involving officers elected by the entire state or by districts composed of a number of counties. Bell v. Templin, 26 Neb. 249, 41 N.W. 1093 (1889).

4. Other remedies

Once an election takes place, a challenge under the Open Meetings Act to preliminary stages leading up to the election is effectively subsumed by the election contest provisions of sections 32-1101 through 32-1117. An election contest is the exclusive remedy under such circumstances, and a separate challenge under the Open Meetings Act does not exist once the issue is voted upon by the public. Pierce v. Drobny, 279 Neb. 251, 777 N.W.2d 322 (2010).

A suit to obtain an injunction is not the proper remedy in which to try the title to a public office. Hotchkiss v. Keck, 84 Neb. 545, 121 N.W. 579 (1909), reversed on rehearing 86 Neb. 322, 125 N.W. 509 (1910). Followed in Moor v. Keck, 84 Neb. 550, 121 N.W. 581 (1909), reversed on rehearing 86 Neb. 694, 126 N.W. 388 (1910).

The statutory remedy by contest is not an exclusive remedy, and the right to hold the office of county treasurer may be determined in an action of quo warranto. State ex rel. Barton v. Frantz, 55 Neb. 167, 75 N.W. 546 (1898).

The proceeding to contest an election, provided for by this article, is a cumulative remedy and is not a ban to a proceeding in quo warranto. State ex rel. Fair v. Frazier, 28 Neb. 438, 44 N.W. 471 (1890).

The statute provides an adequate remedy, either by contest or quo warranto, for the settlement of the rights of parties in disputed elections, and equity has no jurisdiction to enjoin an officer holding an election certificate from taking office. State ex rel. Hunt v. Mayor and City Council of Kearney, 28 Neb. 103, 44 N.W. 90 (1889).

The grounds of contest enumerated in this section are sufficient grounds of removal in an action of quo warranto. State ex rel. Richards v. McMillen, 23 Neb. 385, 36 N.W. 587 (1888).

Mandamus will lie to compel a canvassing board to canvass all the votes returned, in the event of a refusal to canvass the votes from certain precincts, and the fact that a statutory right of action to contest the election exists is not a ban. State ex rel. Whittemore v. Peacock, 15 Neb. 442, 19 N.W. 685 (1884).

Mandamus will lie to compel a board of canvassers to reassemble and canvass the entire vote cast at an election where they have refused to canvass part of the votes, and the fact that a statutory right of action to contest the election is provided by this section is not a ban. State ex rel. Willard v. Stearns, 11 Neb. 104, 7 N.W. 743 (1881).

Question of statutory right of action to contest an election being a ban to a writ of mandamus to compel a canvassing board to canvass all votes cast raised but not decided. State ex rel. Townsend v. Hill, 10 Neb. 58, 4 N.W. 514 (1880).

5. County seat elections

An election for the location or relocation of a county seat may be contested in a proceeding brought under this article, but not in a mandamus proceeding. State ex rel. Hocknell v. Roper, 46 Neb. 730, 65 N.W. 802 (1896).

The proceeding provided for by this article is not an exclusive remedy by which elections for relocating county seats must be contested, and a taxpayer may enjoin the calling of an unauthorized election. Solomon v. Fleming, 34 Neb. 40, 51 N.W. 304 (1892).

The question of the jurisdiction of the county commissioners to call an election for the purpose of locating the county seat may properly be presented in a proceeding to contest the election. Laws v. Vincent, 16 Neb. 208, 20 N.W. 213 (1884).

6. Miscellaneous

The right to contest an election otherwise than by legal proceedings in the proper court is a right created by the Constitution and statutes. In re Contest Proceedings, 31 Neb. 262, 47 N.W. 923 (1891), 10 L.R.A. 803 (1891).