FILED

March 23, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

IN THE SUPREME COURT OF TENNESSEE

AT KNOXVILLE

(HEARD AT CHATTANOOGA)

FOR PUBLICATION

WAYNE LEE AND ) Filed: March 23, 1998

C. EDDIE SHOFFNER, )

)

Plaintiffs/Appellees, ) CLAIBORNE CHANCERY

)

v. ) Hon. Billy Ray White, Chancellor

)

ROBERT TUTTLE, JAMES K. LOOPE, ) No. 03S01-9610-CH-00105

ELEANOR Y. BREEDING, )

STEWART COLLINGSWORTH, and )

BETTY MANNING, )

)

Defendants, )

)

AND )

)

BILLY RAY CHEEK and )

BRUCE SEAL, )

)

Defendants/Appellants. )

FOR DEFENDANTS/APPELLANTS:

A. Benjamin Strand, Jr.

Dandridge

FOR APPELLEE LEE: FOR APPELLEE SHOFFNER:

Michael G. Hatmaker Mark C. Travis

Jacksboro Morristown

O P I N I O N

COURT OF APPEALS REVERSED; CASE DISMISSED HOLDER, J.
1

 Oral argument was heard in this case in Chattanooga, Hamilton County, Tennessee, as

part of this C ourt’s S.C .A.L.E.S. (Supreme Court Advancing Legal Education for Students)

project.

2

OPINION

This is an election contest alleging irregularities or mistakes in vote

counting in the 1994 election for Claiborne County Sheriff and Circuit Court

Clerk.1 The issue with which we are confronted is whether votes shall be

recounted when contestants allege that irregularities in vote tallying caused their

defeat. The Court of Appeals ordered a recount pursuant to Blackwood v.

Hollingsworth, 195 Tenn. 427, 260 S.W.2d 164 (1953). Upon review, we

reverse. We distinguish the present case from Blackwood on the basis that

Blackwood dealt with fraud and not mere irregularities or honest mistakes. We

hold that the plaintiffs are not entitled to relief as they have neither shown fraud

nor to a mathematical certainty that but for the irregularities they would have

been victorious.

BACKGROUND

The plaintiffs, Wayne Lee and Eddie Shoffner, were contestants in the

1994 Claiborne County general election. Plaintiff Lee was a candidate for court

clerk and was defeated by approximately 79 votes. Plaintiff Shoffner was a

candidate for sheriff and was defeated by approximately 169 votes.

The plaintiffs' complaint alleged that in excess of 8,200 people voted in

the contested election. They further alleged that approximately 2,595 of the total

votes were cast by early or absentee voting. These early or absentee votes

were cast on paper ballots. In addition, the plaintiffs alleged that there was a

"vigorous write-in campaign for the office of Claiborne County Executive." The
2

 Testimony indicates that the ballots were rejected as constituting two votes.

3

write-in campaign coupled with the early or absentee voting led to a high number

of paper ballots. The basis of plaintiffs' suit is that irregularities in the counting of

these paper ballots caused their defeat.

The machine votes were counted at their respective precincts, and the

paper ballots were taken to the Office of the Election Commission in Claiborne

County. The plaintiffs alleged that conditions at the Office of Election

Commission were intolerable during the paper ballot count. Testimony at trial

indicated that several individuals smoked and that the counting room was poorly

ventilated and lacked air conditioning. There was also a temporary power

outage. While counting ballots, the election judges, registrars, and vote counters

remained in this environment for approximately 30 hours.

Plaintiffs also alleged that irregularities in ballot counting occurred. An

election judge, Rocky Manning, testified at trial. He stated that ballots were

rejected if a candidate's name had been properly marked and the same

candidate's name was placed in the write-in column of the ballot.2 He estimated

that approximately 20 ballots per district were rejected. Steve Brogan, an

election judge, testified that the rejection policy was applied uniformly to every

ballot and not solely to ballots favoring the plaintiffs.

The trial court dismissed the plaintiffs' case, holding that the "[p]laintiffs

had failed to establish a prima facie case by failing to show with mathematical

certainty that any irregularity in the election held on August 4, 1994, would have

affected the outcome of the election." The Court of Appeals reversed and held

that a recount should take place. The appellate court quoted Blackwood v.
4

Hollingsworth, 195 Tenn. 427, 260 S.W.2d 164 (1953), in support of its holding. 

For the reasons stated below, we reverse the appellate court's judgment.

DISCUSSION

There are two grounds in Tennessee upon which an election contest may

be predicated. In Forbes v. Bell, 816 S.W.2d 716, 719 (Tenn. 1991), this Court

delineated the grounds for an election contest. In Forbes, we held that a

contestant may either file a suit to be declared a winner or file a suit to have the

election declared void. In an election contest suit, courts are vested with the

statutory authority to: (1) confirm an election; (2) declare an election void; (3) 

declare an election a tie; and (4) declare a contestant a winner. Tenn. Code

Ann. § 2-17-112 (1994 Repl.). On appeal to the appellate court, the plaintiffs

requested a recount and did not request that the election be declared void. The

appellate court ordered a recount. Accordingly, our scope of review is whether

the appellate court erred in ordering a recount.

In a suit to be declared the winner, contestants must show: (1) that the

number of illegal votes exceeded the margin of victory; and (2) that to a

mathematical certainty they would have been victorious had the illegal votes not

been counted. Millar v. Thomas, 657 S.W.2d 750, 751 (Tenn. 1983). To obtain

mathematical certainty, contestants must: (1) specifically identify each illegal

voter; and (2) show for whom the illegal voters voted.

This Court has also previously recognized that a recount by the trial court

may be ordered where fraud has permeated the election process and it is

impossible for a contestant to show fraud absent a recount. In Blackwood v.

Hollingsworth, 195 Tenn. 427, 260 S.W.2d 164 (1953), the contestant alleged
5

that election officials fraudulently miscalled several hundred legal votes for the

contestee that had been marked for the contestant. We held that when legal

votes were fraudulently miscalled the contestant may be entitled to a recount if

the proof was sufficient to justify going behind the official returns. Factors

justifying a recount in Blackwood were: (1) it was impossible for the contestant

to point out the identity of the legal voters whose ballots had been fraudulently

miscalled; (2) it was impossible to show fraud absent a recount; and (3) the

ballot box had been properly secured and admitted into evidence.

The appellate court found that the present case was controlled by our

holding in Blackwood. Blackwood, however, held that a recount was appropriate

when legal ballots had been fraudulently miscalled. We are unpersuaded that

Blackwood should stand for the proposition that courts should go behind official

results whenever a contestant alleges irregularities or honest mistakes occurring

during the tallying of legal votes. Such a holding could potentially render every

election subject to both a recount and judicial scrutiny.

The plaintiffs also cite Dixon v. McClary, 349 S.W.2d 140, 209 Tenn. 81

(1955), in support of their argument. In Dixon, armed men entered the ballot

counting room, attempted to destroy ballots and threatened election officials with

bodily harm. One of the individuals illegally present in the counting room then

marked approximately 98 unopened and uncounted ballots void.

Dixon is inapposite to the present case. In Dixon, absentee ballots were

marked void and not counted due to duress and threats made by armed

individuals. The ballots voided under duress were subsequently opened and

counted by the trial court. Accordingly, Dixon permitted counting of legal votes

illegally voided during a scheme to defraud an election's results.
6

Similarly, in Summitt v. Russell, 285 S.W.2d 137 (Tenn. 1955), the

contestant requested a recount alleging "mistakes, and illegal and fraudulent

count in various precincts." Id. at 138. Evidence showed that an election official

"was getting all the votes he could get off the contestant." Id. at 139. Testimony

also indicated that legal votes for the contestant were marked by an election

official for the contestee. The ballot box had been secured and was admitted

into evidence. This Court held that a recount was proper.

Upon review, we find that the plaintiffs have not met their burden in a suit

to be declared a winner. They have neither alleged that the election was

permeated with fraud nor that illegal votes had been cast. Absent fraud or illegal

votes, courts should strive to refrain from interfering with official election returns. 

We, therefore, hold that contestants must show to a mathematical certainty that

but for the mistakes or irregularities they would have been victorious when

election contests are predicated on mere irregularities or honest mistakes in the

tallying of legal votes.

The plaintiffs' proof is speculative and falls well short of establishing to a

mathematical certainty that they should have been declared the winners. The

record indicates that the rejection policy was uniformly applied to every ballot

and, therefore, had a potentially equal impact on all candidates. One could

assume that the margins of victory for the defendants would be even greater

upon a recount. Accordingly, the plaintiffs' proof is speculative and does not

entitle the plaintiffs to their requested relief.

The Court of Appeals' decision ordering a recount is reversed and the

plaintiffs' case is dismissed. Costs of this appeal are taxed to the plaintiffs,

Wayne Lee and Eddie Shoffner, for which execution may issue if necessary.
Janice M. Holder, Justice

CONCURRING:

Anderson, C.J.

Drowota and Birch, JJ.

SEPARATE CONCURRING OPINION:

Reid, J.

1
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FILED

March 23, 1998

Cecil Crowson, Jr.

Appellate C ourt Clerk

1 FOR PUBLICATION

2

3 IN THE SUPREME COURT OF TENNESSEE

4

5 AT KNOXVILLE

6

7

8

9

10 WAYNE LEE AND C. EDDIE SHOFFNER, (

11 (

12 Plaintiffs-Appellees, (

13 ( Claiborne Chancery

14 (

15 v . ( Hon. Billy Joe White,

16 ( Chancellor

17 (

18 ROBERT TUTTLE, JAMES K. LOOPE, ( No. 03S01-9610-CH19 00105

20 ELEANOR Y. BREEDING, STEWART (

21 COLLINGSWORTH, BETTY MANNING, (

22 BILLY RAY CHEEK AND BRUCE SEAL, (

23 (

24 Defendants-Appellants. (

25

26

27

28

29

30 CONCURRING OPINION

31

32

33

34 I concur with the conclusion that the contestants

35 cannot prevail in this election contest suit. I write

36 separately to expand upon some points which are not, in my

37 view, adequately developed in the main opinion.

38

39 The pleadings in a suit to contest an election

40 are critically important, particularly the allegations of

41 fact on which the claim for relief is based and the relief

42 sought. A contest may be based on the allegation that the

43 election was valid as well as the allegation that the
-9-

1 election was void. The contestant may limit the relief

2 sought to a determination that the contestant is entitled

3 to be declared the winner of the election or to an

4 adjudication that the election is void. Tenn. Code Ann. § 

5 2-17-112 (1994). The contestant may seek relief in

6 the alternative, that the contestant be declared the winner

7 or that the election be declared void. A contestant may

8 also seek a recount of the ballots cast in the election. 

9 However, the relief sought must be consistent with the

10 allegations of fact, and, if the allegations of fact and

11 the relief sought are not consistent, the suit may be

12 dismissed for failure to state a cause of action on which

13 relief can be granted. Tenn. R. Civ. P. 12.02(6). If the

14 proof does not support the relief sought, the suit will be

15 dismissed, even though the proof may support relief which

16 is not sought. For instance, the contestant in Forbes v.

17 Bell , 816 S.W.2d 716 (Tenn. 1991), sought a declaration

18 that she was the winner upon the allegations that “the

19 wholesale disregard of the election laws” resulted in 861

20 illegal ballots. The Court noted that because the

21 complaint did not set forth the number of votes each

22 candidate received “we have no way of determining whether

23 the number of allegedly illegal votes equals or exceeds the

24 margin of [the contestee’s] victory.” The Court held,

25 “[t]his omission alone is fatal to Forbes’s claim that she

26 should be declared the duly elected winner” and affirmed
-10-

1 the dismissal of the complaint for failure to state a cause

2 of action. Id. at 719. 

3

4 The contestant cannot be declared the winner upon

5 the allegation that the election was void; the only relief

6 available is a new election. In Emery v. Robertson Co.

7 Election Comm’n , 586 S.W.2d 103 (Tenn. 1979), the election

8 was declared void and a new election ordered upon the

9 allegation and proof that fraud or other illegality so

10 permeated the election as to render the results incurably

11 uncertain. 

12

13

14 The courts may also void elections

15 upon a sufficient quantum of proof that

16 fraud or illegality so permeated the

17 conduct of the election as to render it

18 incurably uncertain, even though it

19 cannot be shown to a mathematical

20 certainty that the result might have

21 been different.

22

23

24

I d 25 . at 109. In Shoaf v. Bringle , 192 Tenn. 695, 241 S.W.2d

26 832 (1951), the contestant sought alternative relief,

27 either that the contestant be declared the party elected or

28 a declaration that the election was void. The Court found

29 that the proof did not support the claim that the

30 contestant was entitled to be declared the winner but that

31 the election was rendered void by the fraudulent and

32 illegal acts of the election officials. The Court stated:

33
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1 Such allegations in the bill as

2 “many legal votes” and “many votes” and

3 such general statements are entirely

4 too general under the ground that the

5 election was valid. Maloney v. Collier

6 [112 Tenn. 78, 83 S.W. 667 (1904)]. But

7 when we come to consider the ground

8 that the election was void because of

9 the fraudulent and illegal acts of

10 those holding the election such general

11 allegations if supported by any

12 specifically stated facts may be taken

13 into consideration. The allegations of

14 fraud must be supported by some

15 specific allegation of fact.

16

17

18

Id. 19 at 835. In Millar v. Thomas , 657 S.W.2d 750 (Tenn.

20 1983), the Court reaffirmed the holding in Emery v.

21 Robertson Co. Election Comm’n that an election can be found

22 void upon a showing “that fraud or illegality so permeated

23 . . . the election as to render it incurably uncertain,

24 even though it cannot be shown to a mathematical certainty

25 that the result might have been different.” Millar v.

26 Thomas , 657 S.W.2d at 751 (quoting Emery , 586 S.W.2d at

27 109). In Millar , the contestant, who was defeated by a

28 margin of 162 votes, sought a declaration that the election

29 was void upon the allegation that 251 absentee ballots were

30 illegal. The Court affirmed the trial judge’s finding that

31 the technical discrepancies shown by the contestant did not

32 render the ballots void and dismissed the contestant’s

33 suit. 

34
-12-

1 An election may also be declared void in the

2 absence of allegations and proof of pervasive fraud or

3 illegality. An election may be declared void upon

4 allegation and proof that the number of invalid ballots

5 tallied equals or exceeds the margin whereby the contestant

6 was declared the winner.

7

8 The reported decisions of this

9 State uniformly authorize the courts to

10 void an election where the evidence

11 reveals that the number of illegal

12 ballots cast equals or exceeds the

13 difference between the two candidates

14 receiving the most votes. The rule is

15 based upon the rationale that if all of

16 the illegal votes had been cast for the

17 unsuccessful candidate the result would

18 have been changed. In Southall v.

19 Billings , 213 Tenn. 280, 375 S.W.2d 844

20 (1963), Mr. Justice White, writing for

21 the Court, suggests that such a

22 mathematical purging of votes renders

23 the election void because of the

24 uncertainty of result. Id. 375 S.W.2d

25 at 850.

26

27

28

29 Emery v. Robertson Co. Election Comm’n , 586 S.W.2d at 108-

30 09 (citations omitted). These decisions also show that

31 the cause or nature of the error or irregularity that

32 renders the ballots invalid is not determinative; they may

33 be invalid because of fraud, honest mistake, or

34 carelessness.

35

36 A contestant can assert the right to be declared

37 the winner only upon the allegation that the election was
-13-

1 valid. The claim to the office for which the contestant

2 was a candidate must be based upon alleged errors regarding

3 specifically identified ballots and may relate to the

4 inclusion of invalid ballots, the exclusion of valid

5 ballots, errors in tallying valid ballots and other errors

6 relating to specifically identified ballots. Accordingly,

7 the contestant is entitled to be declared the winner of the

8 election only upon allegation and proof that the correction

9 of errors relating to the specifically identified ballots

10 will result in the contestant receiving a majority of the

11 valid ballots cast. The rule was clearly set forth in

Shoaf v. Bringle 12 , 241 S.W.2d 832 (Tenn. 1951), where the

13 Court stated:

14

15 When we consider this case from

16 the aspect that it was a valid election

17 and that the petitioner, contestant,

18 had received more votes than the

19 contestee it becomes necessary for the

20 contestant to show on the face of his

21 petition or complaint that the illegal

22 votes cast should be thrown out and

23 that when this is done that the vote

24 that he received plus the legal votes

25 of which he claims to have been

26 deprived was greater than that of the

27 contestee. In making these allegations

28 it was necessary that the contestant

29 specifically point out each and every

30 vote that was fraudulently or illegally

31 cast on behalf of the contestee and

32 against him and that the total of these

33 votes when taken from the contestee and

34 added to him would give him a majority. 

35 Under the factual situation as set

36 forth in this bill the contestant fails

37 to show specifically that the number of

38 votes cast illegally here if thrown out
-14-

1 would give him a majority. Therefore,

2 when we come to purging the polls the

3 contestant fails to sustain his

4 position that there was a valid

5 election and that he received a

6 majority of the votes. It thus appears

7 and there is nothing else that can be

8 done but to hold that the demurrer on

9 this feature of the case should have

10 been sustained by the Chancellor and

11 the suit dismissed as to this branch of

12 the lawsuit.

13

14

15

Id. 16 at 833.

17

18 The contestant may in certain limited

19 circumstances be entitled to a recount of the ballots, even

20 though the allegations would not entitle the contestant to

21 be declared the winner. Upon allegations and proof that

22 there were errors or irregularities relating to the

23 tallying of ballots properly voted, that the ballots have

24 been securely preserved and that the number of ballots not

25 properly tallied equals or exceeds the margin of victory,

26 the court may order a recount of the ballots. If, upon

27 recount, the contestant receives a majority of the valid

28 ballots cast, the contestant will be declared the winner. 

29 In Blackwood v. Hollingsworth , 195 Tenn. 427, 260 S.W.2d

30 164 (1953), in which the margin of victory was 159 votes,

31 the contestant sought a recount of the ballots on the

32 allegation that more than several hundred legal votes cast

33 for the contestant were fraudulently called by the election

34 official and credited to the contestee. The Court
-15-

1 overruled the contestee’s demurrer and held that the trial

2 court would be justified in recounting the votes, upon

3 proof that there had been no tampering with these ballots

4 in the meantime. In distinguishing the situation in

5 Blackwood from that in Shoaf v. Bringle , the Court stated:

6

7 In considering whether the

8 allegations of the petition were

9 sufficient to withstand demurrer, this

10 case must not be confused with one in

11 which it is sought to overcome the

12 official returns by alleging that

13 illegal votes are included therein in a

14 number sufficient to reverse the result

15 when the official returns are purged of

16 such votes. In that situation, as held

17 in Shoaf v. Bringle , 192 Tenn. 695, 241

18 S.W.2d 832, the contestant must

19 specifically point out the allegedly

20 illegal votes cast for the contestee. 

21 Otherwise, there would be no basis upon

22 which to determine for whom those

23 illegal votes were cast. In the

24 instant case the contest is based upon

25 the allegation that more than several

26 hundred legal votes cast for the

27 contestant were fraudulently called by

28 the election officials and credited to

29 the contestee. Once a ballot is placed

30 in the box there is no way of

31 ascertaining the identity of the person

32 who cast it. Therefore, to require the

33 contestant to allege in her petition

34 the identity of the voter whose ballot

35 was fraudulently called for the

36 contestee, though cast for contestant,

37 would be to require of the contestant

38 that which is impossible. But if the

39 proof be sufficient to justify the

40 Court in going behind the official

41 returns and sufficient to conclude that

42 an unauthorized approach to the ballots

43 in the box has been sufficiently

44 guarded against, then the recount of

45 these ballots establishes the truth or
-16-

1 falsity of the charge made as to

2 miscalling ballots.

3

4

5

6 Id. at 166. See also Dixon v. McClary , 209 Tenn. 81, 349

7 S.W.2d 140 (1961); Summitt v. Russell , 199 Tenn. 174, 285

8 S.W.2d 137 (1955). 

9

10 In their brief, the plaintiffs state that they

11 are not seeking to have the election declared void. The

12 contestants allege, in effect, that the election was valid

13 and they seek a recounting of the ballots. The contestants

14 allege specifically that there were irregularities in the

15 counting of the ballots. Each contestant contends that a

16 recounting will show that the contestant received a

17 majority of the valid ballots cast. The only evidence on

18 this issue was the estimate by one election judge that

19 “approximately 20 ballots per district” in all nine

20 districts were invalidly rejected, and the testimony of

21 another judge that the rejection practice was applied to

22 ballots cast for the contestees as well as for the

23 contestants but it was possible that if the rejected

24 ballots were counted, the results of the election would

25 have been different. This testimony is not sufficiently

26 probative to establish that the claimed errors exceed the

27 margins of victory. The record supports the finding that

28 the ballots were securely preserved and that there were

29 errors in tallying the votes. However, it does not
-17-

1 establish that the number of ballots improperly tallied

2 equals or exceeds the margins of victory. This

3 mathematical conclusion is essential to establishing the

4 right to have a recounting. Therefore, the trial court

5 properly found that the contestants failed to show that a

6 recounting “would have changed the result of the election

7 or rendered its outcome uncertain.” Forbes v. Bell , 816

8 S.W.2d at 724. I agree that the trial judge properly

9 dismissed the suit. 

10

11 _____________________________

12 Reid, J.

13