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. 231