Green v. Reyes
836 S.W.2d 203
836 S.W.2d 203
(Cite as: 836 S.W.2d 203)
Page 5
primary run-off election from someone who had previously
participated in the Republican primary in that election year.
Texas Election Code § 162.013.
2. Texas Election Code § 221.012(b) mandates that an election tribunal "shall declare the election void if it cannot ascertain the true outcome of the election." (emphasis added.)
Moreover, the court may reach this result "without attempting to determine how individual voters voted" so long as
"the number of illegal votes is equal to or greater than the
number of votes necessary to change the outcome of an
election." Texas Election Code § 221.009(b).
3. Section 221.009(b) must be interpreted and applied in a
manner that makes sense. It clearly must mean that an election tribunal in its discretion may order a new election
when, as here, the number of illegal votes exceeded the official margin of victory by more than two to one without
either requiring testimony from each illegal voter, or proof
by the Contestant that collecting such testimony represented
a physical impossibility. The statute must envision the circumstance in which the magnitude of the illegal voting
along with some evidence of the tendencies of the illegal
voting warrant the relief of a new election without the laborious, lengthy, and expensive process of a single trial judge
trying to call a close election weeks or months afterwards by
the testimony of hundreds of voters with uncertain memories.
4. Plainly-worded statutes must be read in their common
sense. Section 221.009(b) must mean that in some reasonable circumstances the presumption of correctness of the official outcome no longer prevents relief in the form of a new
election.
5. Section 221.011 requires the court to deduct illegal votes
from the candidates receiving them, but when it "cannot ascertain how the [illegal] voters voted, the tribunal shall consider those votes in making its judgment." The law assumes
that in some cases, as here, some illegal votes will remain in
doubt after all the evidence is concluded in an election contest, and further mandates that the court take those illegal
but unknown votes into account.
6. When the court, with some degree of certainty, can de-
termine the outcome of the election based upon the evidence
presented by the parties, section 212.012(a) requires it to do
so. Failing this, the court's only alternative is defined by §
221.012(b), which requires the voiding of the election.
Whatever may be the case when Contestant fails to sustain
its burden of proof concerning the number of illegal voters,
or proves a number of illegal voters less than the margin in
the official returns for the election, once a Contestant has
satisfied its burden of proving the number of illegal voters
necessary to trigger the powers of the court under §
221.009(b), § 221.012(b) cannot be read to require a Contestant to prove the unavailability or lack of memory on the
part of each and every voter whose vote might make a difference in order for the court to declare a new election. Such
a burden would make some election contests logistically impossible.
7. An application of sections 221.009 and 221.012 in this
fashion carefully balances two competing public policies
which clash when illegal voting exceeds the margin of "victory" by some magnitude: the policy of promptly determining election results versus the policy of maintaining public
confidence in the integrity of an election process that is free
from taint.
1The adjusted final canvas referred to in the second Finding of Fact would be adjusted by the illegal votes as follows: Green's total vote count would become 15,638 votes
(15,858 minus 220 illegal votes) and Reyes's total vote
count would become 15,597 votes (15,672 minus 75 *208
illegal votes), yielding the 41-vote margin of victory.
Based upon these Findings of Fact and Conclusions of Law,
the trial court reasoned that the election should be declared
void and a new election ordered pursuant to Tex.Elec.Code
Ann. § 221.009(b) (Vernon 1986).
[2][3] In points of error one, two, three, four, five, six, seven, eight, nine, ten, eleven, twelve, and fifteen, the appellant
asserts that the trial court's judgment ordering a new election has impermissibly lessened the burden of proof which
is placed upon election contestants. "The burden of proving
illegality in an election contest is on the contestant who
must prove that illegal votes were cast in the election being
contested and that a different and correct result would have
been reached by not counting the illegal votes." See, e.g.,
© 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.
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