The Resolution of Election Disputes: Legal Principles that Control Election Challenges Thus, in following the statutes governing election procedures the court applied the common law principle of due diligence to allow proof of illegal voting that would otherwise have prevented the free expression of the voters’ will. The way that the Pennsylvania Supreme Court applied the principle of due diligence is similar to the way that the principle of equitable estoppel was treated in Taft v. Cuyahoga Board of Elections, 854 N.E.2d 472 (Ohio 2006). Equitable estoppel stops a litigant from pursuing a claim in court when the litigant took a different position on the claim earlier, and the opposing litigant relied on the original position. Mr. Taft and Richard M. Bain both received 1,124 votes in the November 8, 2005 election for the fourth council seat in the City of Pepper Pike, Ohio. A coin flip made Mr. Taft the winner. But a state law required an automatic recount when the margin between the winning and losing candidates was less than one-half of 1%. Following an automatic recount, Mr. Taft’s total was reduced by one vote in Precinct D, and Mr. Bain was declared to be the winner. Five days later, the board of elections examined all of the ballots in Precinct D and found that one ballot had a chad next to Mr. Taft’s name that was attached by only one corner. Under state law, a ballot could be counted if the chad was hanging by two corners or fewer, but the county prosecutor told the board it could not change the certified election result. Then Mr. Taft began a series of challenges, including a challenge to the procedures followed during the recount, which resulted in an appeal to the Ohio Supreme Court. Among other things, Mr. Bain argued that Mr. Taft was estopped from challenging the recount procedure because he acquiesced in the procedure when the recount was held. The supreme court said, “In cases in which we have found equitable estoppel in an election context, irregularities were plain on the face of the ballot, and the contestors were aware of the alleged defects prior to the election.” Taft is not estopped from instituting his election contest. His claimed election irregularity—the board’s improper counting of a single ballot from Precinct D during its initial recount—was not plain on the face of the unpunched ballots, and Taft was not aware of the potential defect until after the board’s [later] administrative review and…investigative report. In addition, this is not a case where he should have been aware of the single ballot in question before the board’s investigation. At 478-479 (internal citations omitted). D. The challenger’s burden of proof can determine the outcome of a lawsuit. Legal victories or losses are often determined by which party has the burden of proof. In a civil case, which is what a lawsuit challenging an election is, the plaintiff must prove the truth of the facts that he or she alleges by a preponderance of the evidence.15 That is, he or she has “the burden of proof.” The determinative nature of bearing the burden of proof in a lawsuit or administrative action was recognized 15 As opposed to a criminal case where the prosecution must prove its case beyond a reasonable doubt, which is a much stricter standard. 14