Jernigan v. Curtis 622 S.W.2d 686 622 S.W.2d 686 (Cite as: 622 S.W.2d 686) Page 4 election officials without the administration of the oath required by statute. The numbered discrepancy arises in two different fashions. It was admitted by at least one election official that when the polls were closed, the voting machine showed that 531 votes had been cast during the day, but that the clerk's check list of voters voting showed that only 526 voters had voted at that precinct. Rather than turn in such a report, the election officials *690 wrote in five additional names on the check list to cause the totals to balance. However, there is an additional problem. The name of Eugene Russell appears twice on the check list, at numbers 291 and 346. The name of Mary Goad also appears twice, at numbers 120 and 175. There is only one person with each of those names registered in the precinct. Each of those individuals testified that they had voted only once. Therefore, there is an additional two-vote discrepancy which no one has attempted to explore. That this should be so is not too surprising. Mr. Condra testified that at one point they sent a Republican into the polling booth when the machine was set up to allow a Democrat to vote. The Republican voter pointed out to the election officials that he was unable to pull levers in his party's primary. To avoid the problem, the election officials cast a vote for one of the Democratic sheriff candidates and then switched the machine to allow the Republican to vote. Mr. Condra testified that he knew that this happened once for sure. It was testified by several of the election officials that no one was allowed to vote more than once in the precinct. The discrepancy was acknowledged by all of the election officials except a Mr. Goad, who denied the problem existed. It was also admitted by all of the election officials, with the exception of Mr. Goad, that assistance was provided to various voters without the administration of the statutorily required oath and the completion of the affidavit. Mr. Goad contended that the forms had been completed but then stolen from the table at the precinct. It does not appear from the transcript that anyone took this contention very seriously. It is undisputed that when the election materials were returned to the county clerk, they contained only one partially completed form for a Mr. Fred Adams. The number of voters who were so assisted is subject to dispute. One election official, Mr. Hagan, testified that three or four people were assisted. He identified Fred Adams and Lee Henry as having received assistance. Mr. Condra also testified that Fred Adams received assistance, and that as many as four people were in the booth at once when the Dyers came in to vote. Four individuals testified that they received assistance to vote in the West Tompkinsville precinct. These were A. Dyer, M. Dyer, R. Humes, and M. Humes. Mr. Goad, an election official, testified that Lee Kingerly had received assistance. The contestant's husband, an attorney, testified that he was present at the precinct when Coomer Tooley voted and that he saw this individual assisted by Mr. Condra. Mr. Tooley was never called to testify; Mr. Condra doesn't remember. The contestant's husband also testified that in the several hours he was at the precinct during the course of the day he was able to look into the polling place through the door and that on many occasions, he saw four legs under the curtain of the voting booth. That open voting occurred was not disputed by any of the election officials who admitted that it was the normal practice to allow married couples to go into the voting booth together. How frequently this occurred on May 26, 1981, was never even speculated on. [5] Although the above indicates that the election officials at the West Tompkinsville precinct were either ignorant of their function or didn't care how they performed it, it is our opinion that the circuit judge was not erroneous in refusing to throw out this precinct. The count discrepancy was only shown to be seven votes. Improper assistance was proven in less than ten cases. The instances of improper open voting were not even estimated, and it cannot be assumed that it was substantial. There were over 500 votes cast in this precinct on May 26. It has not been demonstrated that the errors set out above so destroyed the fairness of the election in this precinct that the votes of this precinct should be discarded. Fountain Run Precinct. Fountain Run precinct (Precinct No. 1) is a smaller precinct than No. 6. The clerk's voter check list shows that 291 voters cast their ballots at that precinct on election day. Two hundred *691 and twenty-six (226) votes were cast in this disputed contest. The election of- © 2006 Thomson/West. No Claim to Orig. U.S. Govt. Works. 297