Chapter 5 • In Moreau v. Tonry, Richard Tonry won the Democratic Party nomination for the United States House of Representatives, but there were 43 forged signatures on the polling place sign-in books and 315 more votes on the voting machines than there were signatures on the polling place sign-in books. Al- though more than 100,000 votes were cast in that election, the number of votes involved in the ir- regularities was greater than the margin of Mr. Tonry’s victory, so the court of appeal decided that the result of the election could not be determined and voided the election. On further appeal, the Louisiana Supreme Court cited Louisiana law that said, [I]f the court finds the proven frauds and irregularities are of such a serious nature that the voters have been deprived of the free expression of their will, the election will be nullified. At 4. But the supreme court reversed the decision of the court of appeal, apparently because it disagreed with the remedy that was ordered by the court of appeal, which allowed the Demo- cratic Party Committee to pick a nominee rather than conducting a new election involving so many voters. The Moreau decision is out of the mainstream of election law in general, and of Louisiana election law in particular. Cases decided in Louisiana 20 years before and after Moreau support the general principle cited, but ignored, in Moreau that “…‘if the court finds the proven frauds and irregularities are of such a serious nature as to deprive the voters of the free expression of their will, it will decree the nullity of the entire election.’” Valence v. Rosiere, 675 So.2d 1138, 1139 (La. Ct. App. 1996), quoting Dowling v. Orleans Parish Democratic Committee, 235 La. 62, 102 So.2d 755, 762 (1958). This comparison, using these cases, was discussed in detail in Chapter 2.86 The principle of subtracting illegal votes from the candidates’ totals when possible, illustrated by Boardman, Mirlisena and Pullen, and the principle of voiding the election when the illegal votes cannot be assigned to a particular candidate, illustrated by Green and Valence, came together in a single case in Jernigan v. Curtis, 622 S.W.2d 686 (Ky. Ct. App. 1981). • As was discussed in detail in Chapter 4, Patsy Jernigan came in second by four votes to Jessie Pearl Curtis in the 1981 contest for the Republican Party nomination for the Monroe County, Kentucky, Clerk of the Circuit Court. The Kentucky Court of Appeals decided that one known irregular vote (where there were two people in the voting booth at the same time) should be subtracted from Ms. Curtis’ total but should not be added to Ms. Jernigan’s total because “A vote that is illegally cast cannot be counted.” At 689 (emphasis supplied). The vote of one person who did not live in the county also was subtracted from Ms. Curtis’ total. With Ms. Curtis ahead by just two votes, the court of appeals found that the polling place officials at the Fountain Run Precinct had instructed people who assisted voters in casting their ballots not to execute the affidavit required of the assistors and had manipulated the vote-count data to cover up the discrepancy between the number of votes cast on the voting machine and the number of people who voted. The court also found that there was admitted 86 As also was discussed in Chapter 2, under Louisiana statutes at the time Moreau was decided, a candidate had to prove that “but for” election irregularities he or she would have won the election or, alternatively, that fraud or serious irregularities had deprived the voters of the free expression of their will. However, the “but for” prong of that law did not compel the result in Moreau because the court there could have, and should have, relied on the second prong of the standard (depriving voters of the free expression of their will) in deciding the case. The standard regarding the free expression of the voters’ will, which is solidly within the mainstream of election law, predated and was contemporaneous with the “but for” standard in Louisiana and remains the standard in these cases since the “but for” standard was removed from the statute. “Although a party contesting an election is no longer limited to the ‘but for’ standard, we note that a party contesting an election still must show at least that because of fraud or irregularities, the outcome of the election is impossible to determine.” Nugent v. Phelps, 816 So.2d 349, 357 (La. Ct. App. 2002). 105