The Resolution of Election Disputes: Legal Principles that Control Election Challenges 302 N.W.2d 440 100 Wis.2d 490, 302 N.W.2d 440 (Cite as: 100 Wis.2d 490, 302 N.W.2d 440) Citing State ex rel. Wood v. Baker, 38 Wis. 71, 89 (1875), this Court held that: "... The voters' constitutional right to vote 'cannot be baffled by latent official failure or defect.' " Ollmann, supra, 238 Wis. at 579, 300 N.W. 183. *503 While in Barnett and Ollmann, the right to vote could be vindicated by counting the defective ballots and upholding the election, that remedy is unavailable when the ballots were neither distributed nor cast. [1] We conclude that the exclusion of these 2,578 voters so undermines the appearance of fairness in the election that the election must be set aside. The Court is not unmindful of the stringency of the remedy of setting aside an election. However, this is not a case where that remedy will render an elective office vacant or otherwise unduly burden the administration of government in Burnett County. Rather, by setting the election aside, the status quo, as it has been for more than one hundred years, will be preserved. If the electors of Burnett County choose to remove the county seat to Siren, that change may be accomplished by a regularly conducted referendum in which all qualified voters participate. **447 The defendants argue that, notwithstanding the deprivation of the right to vote of forty percent of the voters, the election should not be overturned because the outcome of the election could not have been changed. [FN7] The defendants have cited several cases, from among the many to be found in the reports, standing for the proposition that the "outcome test" is widely recognized in other jurisdictions. None of these cases involve the wholesale deprivation of the right to vote that makes the present case an anomaly of American law. In fact, the courts in some of the cited cases expressly noted that no deprivation of the right of qualified voters to vote was involved. Jardon v. Meadowbrook-Fairview Metropolitan District, 190 Colo. 528, 549 P.2d 762, 765 (1976); McNulty v. Board Of Supervisors Of Elections, 245 Md. 1, 224 A.2d 844, 848 (1966). FN7. For purposes of discussion, we assume that the outcome of this election could not have been changed even if all qualified voters who did not re- 330 Page 7 ceive ballots voted "no." *504 The recent case of Files v. Hill, Ark., 594 S.W.2d 836 (1980), cited to us by defendants, did present a claim of deprivation of the right to vote. In Files, one of two consolidated cases was a class action brought by a representative of persons allegedly denied the right to vote for a write-in candidate.[FN8] The plaintiffs sought to have the election voided on the basis of an Arkansas constitutional provision guaranteeing the free exercise of the right of suffrage. The Supreme Court of Arkansas found the plaintiffs had failed to state a claim because no allegation had been made that the election results would have been different if the votes of the plaintiff class had been counted. While Files does support the application of the outcome test in an action involving deprivation of the right to vote, the maximum number of alleged deprivations *505 in that case equalled only about three percent of the electorate.[FN9] FN8. The following is a list of problems that allegedly resulted in the inability of the members of the class to vote: "A. Instructions concerning write-in votes were not sufficiently clear. "B. Pencils were not furnished for the convenience of voters. "C. Voting machines did not function properly and it was impossible for many voters to cast a write-in vote for plaintiff Files. "D. Voters were instructed that long lines waiting at the polls were caused by write-in voters and that electors could vote more quickly by using machines that were not functioning to accept write-in votes. "E. Instructions for voting for write-in candidate Files were given by election officials, resulting in ballots not being counted although the instructions were followed. "F. Electors, attempting to vote for plaintiff Files and following instructions of election officials, wrote plaintiff's name on masking tape, and on parts of the voting machine in an effort to cast votes for plaintiff Files, with the result that said votes were not counted. © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.