Green v. Reyes 836 S.W.2d 203 836 S.W.2d 203 (Cite as: 836 S.W.2d 203) Page 7 certain the candidate or side of a measure for which an illegal vote was cast, the tribunal shall subtract the vote from the official total for the candidate or side of the measure, as applicable. Id. If the true victor of the election can be ascertained, the trial court shall declare the winner. Tex.Elec.Code Ann. § 221.012(a) (Vernon 1986). Section 221.012(a) explains that: If the tribunal hearing an election contest can ascertain the true outcome of the election, the tribunal shall declare the outcome. Tex.Elec.Code Ann. § 221.012(a) (Vernon 1986). However, where the number of illegal unascertained votes is greater than or equal to the margin of victory, the trial court shall declare the election canvass void and order a new election. Tex.Elec.Code Ann. § 221.012(b) (Vernon 1986). Section 221.012(b) mandates that: The tribunal shall declare the election void if it cannot ascertain the true outcome of the election. Id. If the tribunal finds that illegal votes were cast but cannot ascertain how the voters voted, the tribunal shall consider those votes in making its judgment. Tex.Elec.Code Ann. § 221.011(b) (Vernon 1986) (emphasis added ). Therefore, the trial court properly considered the 126 unascertained illegal votes in making the determination that the true outcome of the election was uncertain. Id. [5] In addition, section 221.009(b) grants the district court the discretion to void the election results and order a new election be held: If the number of illegal votes is equal to or greater than the number of votes necessary to change the outcome of an election, the tribunal may declare the election void without attempting to determine how individual voters voted. Tex.Elec.Code Ann. § 221.009(b) (Vernon 1986) (emphasis added ). Pursuant to this section, an election tribunal may void the election and order that a new election be held without ever attempting to ascertain for whom illegal voters had cast their ballots. Id. Nevertheless, the overriding policy which guides an election contest is to determine "the true outcome of the election." Tex.Elec.Code Ann. § 221.003(a)(1) (Vernon 1986). Out of deference to this policy, the trial court chose to entertain the testimony of 313 of the 429 illegal voters in attempt to determine if the true outcome could be ascertained. Finally, the court concluded that "[t]his [41 vote] margin [of victory for Green], 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." Therefore, the trial court declared the election void pursuant to its discretion under sections 221.009(b) and 221.012(b) because the number of unascertained illegal votes was greater than the margin of victory. Tex.Elec.Code Ann. § 221.009(b) & 221.012(b) (Vernon 1986). Appellant contends that the trial court's ruling is in error because the court read 221.009(b) in isolation from the other provisions of the election code. However, our sister court in Corpus Christi has upheld a similar trial court judgment in an election contest. See Medrano, 769 S.W.2d at 688-89. In Medrano, it was held proper for the *210 trial court to void the election results and order a new election where some but not all of the illegal votes were able to be attributed to and deducted from the candidates' final election canvass. Id. The court of appeals heard an appeal in which appellant lost the election by a single vote. Id. at 688. The evidence presented at trial demonstrated that six illegal votes were cast. Id. The trial court heard testimony from each of the six persons who cast illegal votes and each stated for whom he or she had voted; however, the trial court chose not to believe the sixth voter's statements because the voter had a prior felony conviction. Id. at 688-89. Therefore, the vote was equally divided and the trial court held the election results void. Id. at 689-90. The court of appeals determined that the proper procedure under the election code was to first compel the illegal voters to reveal how they voted. Id. at 688. See also Tex.Elec.Code Ann. § 221.009 (Vernon 1986). Secondly, the court must subtract those votes it can attribute as being cast for a specific candidate from the final election canvass. See Medrano, 769 S.W.2d at 688. See also Tex.Elec.Code Ann. § 221.011 (Vernon 1986). If this tally yields a clear winner, the trial court shall declare the election result. © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 233