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 4 mony of Barbara Duganier of Arthur Andersen & Co. were not called to testify. 4. Additional evidence indicates that the correct number of individuals that apparently voted in both the Republican primary and the Democratic run-off was 429. Of these, approximately 97.5% (418) probably voted in the Green/Reyes race in the multi-race run-off election, because that percent of all run-off voters cast a vote for one candidate or the other in the Green/Reyes race. 9. Subtracting the ascertainable illegal votes (See FOF 7) from the candidates' total votes would produce a 41-vote margin of victory for Green.1 This margin, however, based only on a subset of the entire apparent illegal voter population, cannot provide the degree of certainty necessary for this court to declare the true outcome of the election. The number of unascertained votes is greater than three times the margin of victory established by the sample of voters whose voting conduct was determinable by the court. These unascertained votes must be considered by the court in making its judgment. Tex.Elec.Code Ann. § 221.011 (Vernon's 1986). 5. During eight days of the trial, Reyes caused subpoenas to be issued for 292 of the 429 identified "crossover" voters. Of those 292 voters, 246 voters actually appeared to give evidence either in person (212) or through telephone depositions (34) supervised by the court. The number who testified by deposition were permitted to do so because of disabilities or circumstances that materially impaired their ability to come to the courthouse. The remaining individuals fell into several different categories: crossover voters that were subpoenaed but failed to appear; crossover voters that resisted service; crossover voters that evidence showed had moved and could not be located; and others that neither party chose to subpoena. Reyes also tendered into evidence affidavits from eight crossover voters. The affidavits were admitted into evidence as statements against interest. Tex.R.Civ.Evid. 803(24). 6. Following presentation of the Contestant's witnesses, the Contestee presented 59 voter witnesses in court over a two day period. 7. At the close of evidence, the court had heard evidence concerning the voting conduct of 313 alleged crossover voters. Of those 313 voters, the court finds that they included 220 illegal votes for Green, 75 illegal votes for Reyes, 10 illegal voters who could not remember how they voted or if they voted in the race in questions, and 8 votes that were not illegal. These findings must be viewed with caution since many of the voters who disclosed their vote did so with qualifications such as "I think" or "I probably." 8. The voting conduct of 126 of the identified crossover voters could not be ascertained for reasons such as failed memory (the 10 described in FOF 7), failure to appear pursuant to subpoena, obstacles to service, or for other reasons 230 10. The court finds that there was no reliable way of determining how the 126 unascertained votes should be considered to further adjust the votes for each candidate. Contestant's expert witness on the probable tendencies of the crossover voters concluded that the crossover voters as a group were likely to be Green voters. Contestee's expert witness concluded that the voters that did not testify were predominantly Hispanics, and likely to favor Reyes. Applying mathematical projections to the 313 voters whose conduct and memory had been revealed at trial, would produce a victory for Reyes, that is, 70.28% illegal Green votes (220 of 313) x 429 = 302 to be deducted from Green; 23.96% illegal Reyes votes (75 of 313) x 429 = 103 to be deducted from Reyes; yielding a Reyes victory by 13; using the sum of 418 that probably voted in this race (See FOF 4) these projections would give Reyes a victory by 8. Taken as a whole, this evidence is too unreliable to ascertain the true outcome. 11. It is highly unlikely that the 116 voters who did not give direct evidence of their conduct could all be produced in court *207 or located to give testimony by deposition or affidavit, even with a protracted trial. 12. 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. B. Conclusions of Law The Election Code voids any ballot cast in a Democratic © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works.