In re Election Contest as to Watertown Special Referendum Election of October 26, 1999
628 N.W.2d 336
628 N.W.2d 336, 2001 SD 62
(Cite as: 628 N.W.2d 336, 2001 SD 62)
election that rose to the level of not being a free and
fair expression of the voters, contestants of the
election provided no evidence as to how many potential voters left the lines without voting or how
they would have voted and no evidence that any
voter was turned away, and thus, the results were
valid.
[9] Elections
227(1)
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An election will not be overturned upon the mere
mathematical possibility that the results could have
been changed, when the possibilities all combine to
repel any such conclusion.
[10] Elections
227(1)
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Although election officials may have misjudged
voter turnout, an election that culminates in a free
and fair expression of the will of the voters should
not be overturned due to the mistakes or neglect of
an election official.
*337 Robert L. Spears, Watertown, SD, Attorney
for appellants Porisch, Andrea, and Fischer.
Thomas J. Linngren of Green, Schulz, Roby, Oviatt, Cummings & Linngren, Watertown, SD, Attorneys for appellee Prairie Lakes Hospital, Sioux
Valley Health Care and Bartron Clinic.
Roy A. Wise of Richardson, Groseclose, Wyly,
Wise & Sauck, Aberdeen, SD, Attorneys for appellees Watertown Mayor, City Finance Officer,
and City Council.
AMUNDSON, Justice.
**1 Local residents of Watertown filed an election
contest based on allegations of perceived voting irregularities. The trial court held the election valid
and declined to order a new election. We affirm.
FACTS
**2 On August 2, 1999, the Watertown City
Council approved an ordinance, which would
rezone a portion of the city from residential to commercial. The City Council also passed a resolu-
Page 2
tion, which would vacate a portion of a city street.
The ordinance and resolution were passed at the request of Prairie Lakes Health Care System in order
for it to expand its main campus. Certain local residents (Contestants) objected to the changes and
sought to bring the rezoning issues to a special
election. After obtaining the requisite*338 number
of signatures, Contestants were able to demand a
special referendum election on the two zoning
changes.
**3 A special election took place on October 26,
1999, and was held at the Civic Arena. The voters
approved both referendums. After a recount, final
numbers showed that the resolution was approved
1,739 to 1,679, a difference of 60 votes, and the ordinance was approved 1,711 to 1,677, a difference
of 34 votes.
**4 Contestants brought suit contesting the election results under SDCL ch. 12-22. After hearing
Contestants' allegations of voting irregularities, including affidavits from 104 potential voters who
did not vote because of long lines, the circuit court
found that the election "resulted in a free and fair
expression of the will of the voters," and denied
Contestants a new election. Contestants appeal,
raising the follow issue:
Whether Contestants met their burden of proof
showing that the special election was not the free
and fair expression of the voters based on the
manner in which it was conducted.
STANDARD OF REVIEW
[1] **5 "In an election contest this court must determine whether there is sufficient evidence to support the trial court's findings of fact and conclusions of law and can only reverse the trial court's
judgment if it is clearly erroneous." Larson v. Locken, 262 N.W.2d 752, 755 (S.D.1978). Thus, we review only the sufficiency of the trial court's findings and whether those findings are in clear error.
DECISION
**6 The thrust of Contestants' argument is that the
lines leading to the voting registration table were
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