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)
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Chumney v. Craig, 805 S.W.2d 864, 870 (Tex.App.--Waco
1991, writ denied). See also Medrano v. Gleinser, 769
S.W.2d 687, 688 (Tex.App.--Corpus Christi 1989, no writ);
Miller v. Hill, 698 S.W.2d 372, 375 (Tex.App.--Houston
[14th Dist.] 1985, writ dism'd 714 S.W.2d 313 (Tex.1986));
Wright v. Board of Trustees of Tatum Ind. Sch. Dist., 520
S.W.2d 787, 790 (Tex.Civ.App.--Tyler 1975, writ dism'd
w.o.j.); Grizzaffi v. Lee, 517 S.W.2d 885, 892
(Tex.Civ.App.--Fort Worth 1974, writ dism'd w.o.j.). Nevertheless, the standard of review to be placed on an appeal
from a judgment in an election contest is whether from the
record it appears that the trial court abused its discretion.
See, e.g., Miller, 698 S.W.2d at 375; Goodman v. Wise, 620
S.W.2d 857, 859 (Tex.Civ.App.--Corpus Christi 1981, writ
ref'd n.r.e.). See generally, Tex.Jur. III, Elections § 185
(1984).
In this instance, appellant brought an election contest under
the Texas Election Code on the basis that illegal votes were
improperly counted in the final election canvass.
Tex.Elec.Code Ann. § 221.003(a)(1) (Vernon 1986). In particular, appellant alleged that a large number of voters had
registered and voted in both the Republican party primary
and the Democratic primary runoff election. Section
221.003 of the Texas Election Code allows for an election
contest to be brought where it appears that the final election
canvass is not the true outcome of the election due to the
casting of illegal votes. [FN2] See Tex.Elec.Code Ann. §
221.003(a)(1) (Vernon 1986). An illegal vote occurs where
a registered voter actually casts a ballot in both the Republican and Democratic primaries. [FN3] See Tex.Elec.Code
Ann. § 221.003(b) (Vernon 1986).
FN2. Tex.Elec.Code Ann. § 221.003(a)(1) (Vernon
1986). Section 221.003(a)(1) provides in relevant
part that:
(a) The tribunal hearing an election contest shall attempt to ascertain whether the outcome of the contested election, as shown by the final canvass, is
not the true outcome because:
(1) illegal votes were counted....
Id.
FN3. Tex.Elec.Code Ann. § 221.003(b) (Vernon
1986). Subsection states that:
232
In this title, "illegal vote" means a vote that is not
legally countable.
Id.
In order to determine the true outcome of the election, the
trial court heard testimony from 313 illegal voters during
the course of the eleven day trial. Section 221.009 grants the
district court the power to compel a voter to reveal his or her
vote by providing that:
(a) A voter who cast an illegal vote may be compelled,
after the illegality has been established to the satisfaction
of the tribunal hearing the contest, to disclose the name of
the candidate for whom he voted or how he voted on a
measure if the issue is relevant to the election contest.
Tex.Elec.Code Ann. § 221.009(a) (Vernon 1986). Both appellant and appellee were able to secure the testimony of
313 of the 429 illegal voters; of these, 220 illegal voters admitted voting for Green and 75 admitted voting for Reyes.
[4] Pursuant to the Election Code, the trial court subtracted
the number of ascertainable illegal votes from the candidates' total votes. [FN4] See *209Tex.Elec.Code Ann. §
221.011(a) & 221.012(b) (Vernon 1986). See also
Tex.Elec.Code Ann. § 221.012(a) (Vernon 1986). In this instance, once the illegal votes were subtracted from the original election results, the canvass yielded a 41 vote margin
of victory for Green. Notwithstanding, the trial court also
found that 126 illegal votes were not able to be ascertained.
Therefore, the 41 vote margin of victory in favor of Green
could not accurately reflect the true outcome of the election.
In response, the trial court entertained testimony from expert witnesses on behalf of appellant and appellee who testified that statistically the majority of the 126 unascertained
illegal votes would have been cast for their opponent. Disregarding this conflicting testimony, the trial court determined that the true outcome was unable to be determined.
Therefore, pursuant to section 221.012(b), the trial court
held the election void and ordered a new election because
the margin of victory, 41, was far surpassed by the number
of unascertained illegal votes, 126. See Tex.Elec.Code Ann.
§ 221.012(b) (Vernon 1986). Section 221.011(b) states that:
FN4. Tex.Elec.Code Ann. § 221.011(a). Section
221.011(a) mandates that:
If the tribunal hearing an election contest can as-
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