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
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