Green v. Reyes 836 S.W.2d 203 836 S.W.2d 203 (Cite as: 836 S.W.2d 203) Page 3 only those voters who had voted in both the March 10, 1992 Republican Primary and the April 14, 1992 Democratic Primary runoff. [1] During an eleven day trial, the court heard testimony from 313 of the 431 allegedly illegal voters. Many of the voters *205 appeared at trial to testify; a few were deposed by telephone; and some others submitted affidavits. Many witnesses expressed dismay and anger that the trial court was demanding that they reveal for whom they had voted when generally voters enjoy a constitutional right not to do so; however, the trial court properly advised the voters that this protection does not extend to voters who have cast illegal votes. See, e.g., Ex Parte Henry, 132 Tex. 575, 126 S.W.2d 1 (1939). See also Tex.Elec.Code Ann. § 221.009(a) (Vernon 1986). Nevertheless, the trial court issued admonishments to each witness that although voting in both political party's election primary is a crime, "nothing you testify to in this case can ever be used against you." The court determined that the number of illegal votes was truly 429 and that of those votes, 220 illegal votes were cast in favor of Green, 75 illegal votes in favor of Reyes, 8 votes were not illegal at all [FN1], and 126 votes were unable to be attributed to either candidate because the testimony of the voter was unable to be obtained or the voter did not remember how he or she voted. Thereafter, both appellant and appellee brought forth expert testimony to show that statistically the vast majority of the 126 undetermined illegal votes would have been cast for their opponent. FN1. These eight voters included those whose signed in at the March 10, 1992 Republican primary but testified that they had not actually cast ballots and those who voted in the Democratic primary runoff election but did not vote for either Reyes or Green. After deducting the number of attributable illegal votes from each side, Green maintained a 41 vote margin of victory. Once the trial court has determined which illegal votes it can subtract as attributable to either candidate and which illegal votes are unascertained, section 221.012 provides that: (a) If the tribunal hearing an election contest can ascertain the true outcome of the election, the tribunal shall declare the outcome. (b) The tribunal shall declare the election void if it cannot ascertain the true outcome of the election. Tex.Elec.Code Ann. § 221.012 (Vernon 1986). The trial court exercised its authority under the election code and ordered the election void because the margin of victory was less than the number of unascertained illegal votes. Tex.Elec.Code Ann. § 221.009(b) (Vernon 1986). In support of this ruling, the trial court issued its Findings of Fact and Conclusions of Law as follows: A. Findings of Fact 1. On April 14, 1992, the Democratic Party of Harris County held a primary run-off election to determine the party's nominee for the newly created 29th Congressional District. The two men running for that election were Ben Reyes, a long-time Houston city councilman, and Raymond Eugene Green, a state senator from the Houston area. The final canvass of the April 14 run-off election showed that Green had won by a 180 vote margin. The April 14 runoff followed a March 10, 1992 general primary, held in both major political parties. Pursuant to a stipulation made by the two parties the final canvass of the election reflected the following totals for each of the candidates: Raymond Eugene Green--15,844 votes; Ben Reyes--15,664 votes. 2. After Reyes had filed this lawsuit, but before the trial had commenced, the Harris County Clerk, Anita Rodeheaver, discovered 22 unopened and uncounted ballots from the Democratic run-off. The ballots were later opened under the supervision of the court and found to reflect the following totals for each of the candidates: Raymond Eugene Green 14 votes, and Ben Reyes 8 votes. When added to the vote count stipulated to by the parties, the court finds that the final canvas should be adjusted to represent the following totals for each of the candidates: Raymond Eugene Green--15,858 votes; Ben Reyes--15,672 votes. This produces a margin of victory for Green of 186 votes. 3. Voting records kept by the Harris County Clerk's office showed that 431 individuals had signed-in to vote at the Republican primary on March 10, 1992 and subsequently *206 signed-in to vote in the Democratic Primary Run-off election on April 14, 1992. See Plaintiff's Exhibits 1a-1f; Testi- © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 229