The Resolution of Election Disputes: Legal Principles that Control Election Challenges 836 S.W.2d 203 836 S.W.2d 203 (Cite as: 836 S.W.2d 203) Page 8 Tex.Elec.Code Ann. § 221.012(a) (Vernon 1986). However, the trial court "shall declare the election void" if the margin of victory is less than or equal to the number of undetermined illegal votes after subtracting all of the illegal votes that may be positively attributed to the candidates. [FN5] See Medrano, 769 S.W.2d at 688. See also Tex.Elec.Code Ann. § 221.009(b) & 221.012 (Vernon 1986). The court of appeals ruled that the trial court may properly void the election results where it is unable to ascertain for whom all illegal votes were cast and without such the number of undetermined illegal votes is greater than or equal to the margin of victory. [FN6] See Medrano, 769 S.W.2d at 690. Likewise, the trial court in this instance found that the number of illegal unascertained votes was in excess of the margin of victory. [FN7] FN5. See also Kelley v. Scott, 733 S.W.2d 312, 314 (Tex.App.--El Paso 1987, writ dism'd w.o.j.). In that instance, the appellee had won the election by only one vote. Id. However, the election tribunal found that one absentee ballot had been illegally counted. Id. The court held that: Tex.Elec.Code Ann. sec. 221.009(b) (Vernon 1986) provides that if the number of illegal votes is equal to or greater than the number of votes necessary to change the outcome of an election, the tribunal may declare the election void without attempting to determine how the individual voters involved voted. Since one vote can change the outcome of the election in question, it was not necessary to show how [the illegal voter] cast her vote. Id. FN6. See also Kelley, 733 S.W.2d at 314; Wright, 520 S.W.2d at 793; White v. Hearne, 514 S.W.2d 765, 767 (Tex.Civ.App.--Waco 1974, no writ); Ware v. Crystal City Ind. Sch. Dist., 489 S.W.2d 190, 191-92 (Tex.Civ.App.--San Antonio 1972, writ dism'd w.o.j.). FN7. The trial court's Finding of Fact number twelve states that "The true outcome of the April 14 run-off election cannot be ascertained, and the number of illegal votes is greater than the number necessary to change the outcome." 234 [6] Appellant argues that under the trial court's ruling "any close election can be voided because the existence of some illegal votes taints the election and public policy requires that a new election is required to correct this taint;" however, the policy behind section 221.012(b) of the Election Code is not about how close the final election results may be but rather, that section merely seeks to insure that the final election canvass is a clear reflection of the legal votes cast. See Medrano, 769 S.W.2d at 688. Section 221.012(b) is not a tool to be utilized to void the election results of a close election. Rather, section 221.012(b) only comes into play where there were illegal votes cast which upon reasonable inquiry at an election contest cannot be attributed to either the contestant or contestee. See Tex.Elec.Code Ann. § 221.012(a) & (b) (Vernon 1986). See also Medrano, 769 S.W.2d at 688. The trial court may void the election results and order that a new election be held where there is a sufficient number of illegal votes which cannot be attributed to either candidate, *211 namely, where the number of illegal unascertainable votes is greater than or equal to the margin of victory. Tex.Elec.Code Ann. § 221.012(b) (Vernon 1986). See also Medrano, 769 S.W.2d at 688. [7] Appellant further argues that under the approach taken by the trial court, "whoever loses, may return to court, prove that the number of illegal voters is equal to or greater than the difference in the margin in the election and the contestant is entitled to a new election." (emphasis added ). Once again, appellant misconstrues the Election Code. Sections 221.009 and 221.012 vest discretion in the trial court to determine whether or not the true results of the election can be ascertained. Tex.Elec.Code Ann. § 221.009 & 221.012 (Vernon 1986). "The tribunal shall declare the election void if it cannot ascertain the true outcome of the election." Tex.Elec.Code Ann. § 221.012(b) (Vernon 1986). In this instance, the trial court found that the true results of the April 14, 1992 primary runoff could not be ascertained. The evidence presented at trial attributed 220 of the illegal votes to Green, 75 to Reyes, 8 were not illegal, and 126 were unable to be attributed to either side. We find that the trial court did not impermissibly alter the burden of proof in an election contest and further find that the trial court prop- © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.