McNally v. Tollander 302 N.W.2d 440 100 Wis.2d 490, 302 N.W.2d 440 (Cite as: 100 Wis.2d 490, 302 N.W.2d 440) "G. In some instances it was physically impossible for a voter to cast his ballot for plaintiff Files on a voting machine." Files, supra, 594 S.W.2d at 838. FN9. The complaint alleged that 1,522 voters were deprived of the right to vote. The total number of votes cast was 47,401. Because the case before us involves clear deprivations of more than forty percent of the voters, we do not find the Files decision persuasive. The Court of Appeals held the outcome test applicable to this case, stating: "... in order to successfully challenge an election a plaintiff must show the probability of an altered outcome. He must prove that the will of the electors would have favored the opposite result actually reached." McNally, supra, 97 Wis.2d at 609, 294 N.W.2d 660. The only exception to this "outcome rule" acknowledged by the Court of Appeals, would be where a candidate would stand to benefit from his own wrongdoing or where fraud was involved. McNally, supra, 97 Wis.2d at 610, 294 N.W.2d 660. [2] We agree with these statements as they apply to most cases of election irregularities. But in a case where deprivations of the right to vote are so significant in number or so egregious in character as to seriously undermine the appearance of fairness, we hold such an election must be set **448 aside, even where the outcome of the election might not be changed. "... courts should use their discretion to avoid elections where proven violations have undermined the appearance of fairness of an election. For example, when many voters see election officials stuffing ballot boxes, or when large numbers of voters are prevented from voting, public confidence in the integrity of the election and popular acceptance of the winner may be severely impaired. In such cases a new election might be justified to remedy these effects, regardless of the likelihood that the election's outcome was altered." Developments *506 In The Law Elections, 88 Harv.L.Rev. 1111, 1330 (1975). (emphasis added). Page 8 This approach was applied in Bell v. Southwell, 376 F.2d 659 (5th Cir. 1967). In Bell, a number of black voters were intimidated from voting by a large crowd of whites and a number of qualified black women were denied the right to cast their ballot in the "white women's" voting booth. Although it was clear that the infringement of these voter's rights did not change the outcome of the election, the Court held that the election must be set aside. "The fact is that there are certain discriminatory practices which, apart from any demonstrated injury or inability to do so, so infect the processes of the law as to be stricken down as invalid." Bell, supra, 376 F.2d at 662. The Court in Bell, recognized, as we do, that a deprivation case differs from an election contest in which the winner is challenged because of irregularities. "Mrs. Bell and her co-plaintiffs alone or as members of the class did not challenge the eligibility of Mr. Southwell or the fact that he received an overwhelming majority. Indeed, Mrs. Bell as a former candidate did not seek to be selected over Southwell or any other opponent. What, and all, she and others sought was an election conducted free of such indefensible, racial distinctions. That being so, it was not the usual simple case of counting votes and denying relief for want of affirmative proof of a different result." Bell, supra, 376 F.2d at 664-665. As the trial court found this case involved no fraud. Nor does it involve the kind of "indefensible, racial distinctions" that tainted the election in Bell. However, the disenfranchisement of such a substantial number of voters, make this a case where the processes of the law are so infected as to require nullification of the election. *507 The Court of Appeals expressed concern with the effect of setting aside the election on the majority of voters who did vote.[FN10] We conclude the temporary "disenfranchisement" of those voters is preferred to the permanent disenfranchisement of the forty percent of voters who were denied the right to vote. FN10. The court stated that: "... were this court to set aside the election on the basis of ballot deprivation to some voters, we would disenfranchise the majority of voters who © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 331