# FILED

March 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk IN THE SUPREME COUR T OF TENNESSEE AT KNOXVILLE (HE ARD AT C HATT ANOO GA)

FOR PUBLICA

TION 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 DEFEND

ANTS/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 i n this case i n Chattanooga, Hamilton County,Tennessee, as part of this C ourt’s S.C .A.L.E.S. ( S upreme C ourt A dvancing L ega l E ducation for S tudents) project. 2 OPINION

This is an election contest alleging irregu larities or mistakes i n vote counting in the 1994 election for Claiborne County Sheriff and Circuit Court Clerk. 1 The issue with whi ch we are confronted is w hether votes shall be recounted when contestants allege that irregularities in vote tallying caused their defeat. The Court of Appeals ordered a r ecount pursuant to Blackwood v. Hollingsworth , 195 Ten n. 427, 2 60 S.W .2d 164 (1 953). Upo n review, we

reverse. We distinguish the present ca se from Blackwoodon the basis that Blackwoodde al t wit h f ra udan d n ot me re irre gu la ri ti es

or ho ne st mi stak es . We hold that the plaintiffs are not entitled to relief as they hav e neither shown fraud nor to a ma themati cal certa inty that b ut for th e irregula rities the y would have been victorious.

BACKGROUND

The plaintiffs, Wayne Lee and Eddie Shoffner, were contes tants in the 1994 Claiborne County general election. Plaintiff Lee was a candidate f or court clerk and was defeated by approximately 79 votes. Plaintiff Shoff ner was a candidate for sheriff and was defeate d by approximately 169 votes.

The plaintiffs' complaint alleged that in excess of 8, 200 people voted in the contested election. They fur ther alleged that approx imately 2,595 of the total votes were cast by

early or absentee voting. These early or ab sentee votes were cast on paper ballots. In addition, the plaintiffs alleged that there was a "vigorous write-in campaign for the office of Clai borne County Executiv e." The2 Testimony indicates that the ball ots were rej ected as constitutingtwo votes. 3 write-in campaign c

oupled with the early

or absentee voting led to a high number of paper ballots. The basis of plaintiffs' suit is that irreg ularities in the counting of these paper ballots caused thei r defeat.

The machine votes were counted at their respectiv e 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 intoler able during the paper ball ot count. Testimony at trial indicated that several individuals smoked and that the counting room was poorly ventilated and lacked air conditioning. There w as also a temporary pow er outage. While counting ballots, the ele ction judges, registrars, and vote counters remained in this environment for approximately 30 hours.

Plaintiffs also alleged that i rregularities 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 pr

operly mar

ked and the same candidate's name was placed in the write-in col umn of the ballot. 2 He estimated that approximately 20 bal lots per district w ere rejected. Steve Br

ogan, 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

dismis sed the p laintiffs' case , holdin g that the "[p]l aintiffs had failed to establish a prima faci e case by failing to show with mathematical certaint y that any ir regularit y in the ele ction hel d on Augus t 4, 1994 , would have affected the outcome of the election." The Court of Appeals reversed and held that a recount should take plac e. 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 appel late court's judgment.

DISCUSSION

There are two grounds i n Tennessee upon which an election contest may be predicated. In Forbes v. Bell , 816 S.W.2d 716, 71 9 (Tenn. 1991), this Court delineated the grounds for an el ection contest. In Forbes , we held that a contestant may either file a suit to be declared a winn er or file a suit to have the election declared void.In an election contest suit , courts are vested w ith 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 Rep l.). On appeal t o the appellate c

ourt, th e 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 i n ordering a recount.

In a suit to be declared the w inner, contestants must show: (1) that the number of illegal votes ex ceeded the margin of victor y; and (2) that to a mathematical certainty they would have been vic

torious had the illegal

votes not been counted. Millar v. Thomas , 657 S.W.2d 750, 75 1 (Tenn. 1983). To obtain mathematical certainty, c ontestants must: (1) specific ally identify each il legal voter; and (2) show

for whom the illegal v

oters voted.

This Court has also previously recognized that a recount by the trial court may be ordered where fraud has permeated the election proce ss and it is impossible for a contestant to s how fraud absent a recount. In Blackwood v. Hollingsworth , 195 Tenn. 427, 260 S.W.2d 164 (1953), the contestant all eged5 that election officials fraudulentl y 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 off icial returns. Factors justifying a recount i n Blackwoodwere: (1) it w as impossible for the contestant to point out the identity of the legal voters whose ballots had been fraudu lently miscalled; (2) it w

as 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 Blackwoodshould stand for the proposition that courts should go behi nd official results whenever a contestant alleges irr egularities or honest mistakes occurring during the tallying of legal votes. Such a holding could potentially render every election subject t o both a re count an d judicia l scrutiny.

The plaintiffs also cite Dixon v. McClary , 349 S.W.2d 140, 209 Tenn. 81 (1955), in support of their ar gument. In Dixon , armed men entered the ballot counting room, attempted to destr oy ballots and threatened el ection officials with bodily harm. One of the indiv iduals illegally

present in the counting r oom 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 ar med individuals. The ballots voided under duress w ere subsequently opened and counted by the trial cour t. 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 preci ncts." Id . at 138. Evidence show ed that an election official "was getting all the votes he could get off the cont estant." Id . at 139. Testimony also indicated that legal votes for the contestant w ere 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 i llegal votes had been ca st. Absent fraud or illegal votes, courts should strive to refrain from inter fering with official elec

tion returns. We, therefore, hold that contestants must show t o a mathematical certainty that but for the mistakes or irr egularities they w

ould have been victorious when election contests are predi cated on mere irregulari ties or honest mistakes in the tallying of legal votes.

The plaintiffs' proof is speculativ e and falls well short of es tablishing to a mathematical certainty that they should have been declared the winners. The record indicates that the r ejection policy w

as uniformly applied to ev ery ballot and, therefore, had a potentially equal impact on all candida tes. One could assume that the margins of vi ctory for the defendants would be even greater upon a recount. Accordingl y, the plaintiffs' proof is speculative and does not entitle the plai ntiffs to

their r equeste d relie f.

The Court of Appeals' decision or dering a recount is rev

ersed and the plaintiffs' case is dismissed. Costs of this appeal are taxed to the plaintiffs, Wayn e Lee and Eddie Sh offne r, for whic h executio n may issue if neces sary.Janice M. Holder, Justice

CONCURRING: Anderson, C.J. Drowota and Birch, JJ.

SEPARATE CONCURRING OPINION: Reid, J.

1-8- 

# FILED

March 23, 1998 Cecil Crowson, Jr. Appellate C ourt Clerk FOR PUBLICATION 1 2 IN THE SUPREME COURT OF TENNESSEE 3 4 AT KNOXVILLE 5 6 7 8 9 WAYNE LEE AND C. EDDIE SHOFFNER, ( 10 ( 11 Plaintiffs-Appellees, ( 12 ( Claiborne Chancery 13 ( 14 v . ( Hon. Billy Joe White, 15 ( Chancellor 16 ( 17 ROBERT TUTTLE, JAMES K. LOOPE, ( No. 03S01-9610-CH18 00105 19 ELEANOR Y. BREEDING, STEWART ( 20 COLLINGSWORTH, BETTY MANNING, ( 21 BILLY RAY CHEEK AND BRUCE SEAL, ( 22 ( 23 Defendants-Appellants. ( 24 25 26 27 28 29 CONCURRING OPINION 30 31 32 33 I concur with the conclusion that the contestants 34 cannot prevail in this election contest suit. I write 35 separately to expand upon some points which are not, in my 36 view, adequately developed in the main opinion. 37 38 The pleadings in a suit to contest an election 39 are critically important, particularly the allegations of 40 fact on which the claim for relief is based and the relief 41 sought. A contest may be based on the allegation that the 42 election was valid as well as the allegation that the 43-9- election was void. The contestant may limit the relief 1 sought to a determination that the contestant is entitled 2 to be declared the winner of the election or to an 3 adjudication that the election is void. Tenn. Code Ann. § 4 2-17-112 (1994). The contestant may seek relief in 5 the alternative, that the contestant be declared the winner 6 or that the election be declared void. A contestant may 7 also seek a recount of the ballots cast in the election. 8 However, the relief sought must be consistent with the 9 allegations of fact, and, if the allegations of fact and 10 the relief sought are not consistent, the suit may be 11 dismissed for failure to state a cause of action on which 12 relief can be granted. Tenn. R. Civ. P. 12.02(6). If the 13 proof does not support the relief sought, the suit will be 14 dismissed, even though the proof may support relief which 15 is not sought. For instance, the contestant in Forbes v. 16 Bell , 816 S.W.2d 716 (Tenn. 1991), sought a declaration 17 that she was the winner upon the allegations that “the 18 wholesale disregard of the election laws” resulted in 861 19 illegal ballots. The Court noted that because the 20 complaint did not set forth the number of votes each 21 candidate received “we have no way of determining whether 22 the number of allegedly illegal votes equals or exceeds the 23 margin of [the contestee’s] victory.” The Court held, 24 “[t]his omission alone is fatal to Forbes’s claim that she 25 should be declared the duly elected winner” and affirmed 26-10- the dismissal of the complaint for failure to state a cause 1 of action. Id. at 719. 2 3 The contestant cannot be declared the winner upon 4 the allegation that the election was void; the only relief 5 available is a new election. In Emery v. Robertson Co. 6 Election Comm’n , 586 S.W.2d 103 (Tenn. 1979), the election 7 was declared void and a new election ordered upon the 8 allegation and proof that fraud or other illegality so 9 permeated the election as to render the results incurably 10 uncertain. 11 12 13 The courts may also void elections 14 upon a sufficient quantum of proof that 15 fraud or illegality so permeated the 16 conduct of the election as to render it 17 incurably uncertain, even though it 18 cannot be shown to a mathematical 19 certainty that the result might have 20 been different. 21 22 23 24 I d . at 109. In Shoaf v. Bringle , 192 Tenn. 695, 241 S.W.2d 25 832 (1951), the contestant sought alternative relief, 26 either that the contestant be declared the party elected or 27 a declaration that the election was void. The Court found 28 that the proof did not support the claim that the 29 contestant was entitled to be declared the winner but that 30 the election was rendered void by the fraudulent and 31 illegal acts of the election officials. The Court stated: 32 33-11- Such allegations in the bill as 1 “many legal votes” and “many votes” and 2 such general statements are entirely 3 too general under the ground that the 4 election was valid. Maloney v. Collier 5 [112 Tenn. 78, 83 S.W. 667 (1904)]. But 6 when we come to consider the ground 7 that the election was void because of 8 the fraudulent and illegal acts of 9 those holding the election such general 10 allegations if supported by any 11 specifically stated facts may be taken 12 into consideration. The allegations of 13 fraud must be supported by some 14 specific allegation of fact. 15 16 17 18 Id. at 835. In Millar v. Thomas , 657 S.W.2d 750 (Tenn. 19 1983), the Court reaffirmed the holding in Emery v. 20 Robertson Co. Election Comm’n that an election can be found 21 void upon a showing “that fraud or illegality so permeated 22 . . . the election as to render it incurably uncertain, 23 even though it cannot be shown to a mathematical certainty 24 that the result might have been different.” Millar v. 25 Thomas , 657 S.W.2d at 751 (quoting Emery , 586 S.W.2d at 26 109). In Millar , the contestant, who was defeated by a 27 margin of 162 votes, sought a declaration that the election 28 was void upon the allegation that 251 absentee ballots were 29 illegal. The Court affirmed the trial judge’s finding that 30 the technical discrepancies shown by the contestant did not 31 render the ballots void and dismissed the contestant’s 32 suit. 33 34-12- An election may also be declared void in the 1 absence of allegations and proof of pervasive fraud or 2 illegality. An election may be declared void upon 3 allegation and proof that the number of invalid ballots 4 tallied equals or exceeds the margin whereby the contestant 5 was declared the winner. 6 7 The reported decisions of this 8 State uniformly authorize the courts to 9 void an election where the evidence 10 reveals that the number of illegal 11 ballots cast equals or exceeds the 12 difference between the two candidates 13 receiving the most votes. The rule is 14 based upon the rationale that if all of 15 the illegal votes had been cast for the 16 unsuccessful candidate the result would 17 have been changed. In Southall v. 18 Billings , 213 Tenn. 280, 375 S.W.2d 844 19 (1963), Mr. Justice White, writing for 20 the Court, suggests that such a 21 mathematical purging of votes renders 22 the election void because of the 23 uncertainty of result. Id. 375 S.W.2d 24 at 850. 25 26 27 28 Emery v. Robertson Co. Election Comm’n , 586 S.W.2d at 108- 29 09 (citations omitted). These decisions also show that 30 the cause or nature of the error or irregularity that 31 renders the ballots invalid is not determinative; they may 32 be invalid because of fraud, honest mistake, or 33 carelessness. 34 35 A contestant can assert the right to be declared 36 the winner only upon the allegation that the election was 37-13- valid. The claim to the office for which the contestant 1 was a candidate must be based upon alleged errors regarding 2 specifically identified ballots and may relate to the 3 inclusion of invalid ballots, the exclusion of valid 4 ballots, errors in tallying valid ballots and other errors 5 relating to specifically identified ballots. Accordingly, 6 the contestant is entitled to be declared the winner of the 7 election only upon allegation and proof that the correction 8 of errors relating to the specifically identified ballots 9 will result in the contestant receiving a majority of the 10 valid ballots cast. The rule was clearly set forth in 11 Shoaf v. Bringle , 241 S.W.2d 832 (Tenn. 1951), where the 12 Court stated: 13 14 When we consider this case from 15 the aspect that it was a valid election 16 and that the petitioner, contestant, 17 had received more votes than the 18 contestee it becomes necessary for the 19 contestant to show on the face of his 20 petition or complaint that the illegal 21 votes cast should be thrown out and 22 that when this is done that the vote 23 that he received plus the legal votes 24 of which he claims to have been 25 deprived was greater than that of the 26 contestee. In making these allegations 27 it was necessary that the contestant 28 specifically point out each and every 29 vote that was fraudulently or illegally 30 cast on behalf of the contestee and 31 against him and that the total of these 32 votes when taken from the contestee and 33 added to him would give him a majority. 34 Under the factual situation as set 35 forth in this bill the contestant fails 36 to show specifically that the number of 37 votes cast illegally here if thrown out 38-14- would give him a majority. Therefore, 1 when we come to purging the polls the 2 contestant fails to sustain his 3 position that there was a valid 4 election and that he received a 5 majority of the votes. It thus appears 6 and there is nothing else that can be 7 done but to hold that the demurrer on 8 this feature of the case should have 9 been sustained by the Chancellor and 10 the suit dismissed as to this branch of 11 the lawsuit. 12 13 14 15 Id. at 833. 16 17 The contestant may in certain limited 18 circumstances be entitled to a recount of the ballots, even 19 though the allegations would not entitle the contestant to 20 be declared the winner. Upon allegations and proof that 21 there were errors or irregularities relating to the 22 tallying of ballots properly voted, that the ballots have 23 been securely preserved and that the number of ballots not 24 properly tallied equals or exceeds the margin of victory, 25 the court may order a recount of the ballots. If, upon 26 recount, the contestant receives a majority of the valid 27 ballots cast, the contestant will be declared the winner. 28

In Blackwood v. Hollingsworth , 195 Tenn. 427, 260 S.W.2d 29 164 (1953), in which the margin of victory was 159 votes, 30 the contestant sought a recount of the ballots on the 31 allegation that more than several hundred legal votes cast 32 for the contestant were fraudulently called by the election 33 official and credited to the contestee. The Court 34-15- overruled the contestee’s demurrer and held that the trial 1 court would be justified in recounting the votes, upon 2 proof that there had been no tampering with these ballots 3 in the meantime. In distinguishing the situation in 4 Blackwoodfrom that in Shoaf v. Bringle , the Court stated: 5 6 In considering whether the 7 allegations of the petition were 8 sufficient to withstand demurrer, this 9 case must not be confused with one in 10 which it is sought to overcome the 11 official returns by alleging that 12 illegal votes are included therein in a 13 number sufficient to reverse the result 14 when the official returns are purged of 15 such votes. In that situation, as held 16 in Shoaf v. Bringle , 192 Tenn. 695, 241 17 S.W.2d 832, the contestant must 18 specifically point out the allegedly 19 illegal votes cast for the contestee. 20 Otherwise, there would be no basis upon 21 which to determine for whom those 22 illegal votes were cast. In the 23 instant case the contest is based upon 24 the allegation that more than several 25 hundred legal votes cast for the 26 contestant were fraudulently called by 27 the election officials and credited to 28 the contestee. Once a ballot is placed 29 in the box there is no way of 30 ascertaining the identity of the person 31 who cast it. Therefore, to require the 32 contestant to allege in her petition 33 the identity of the voter whose ballot 34 was fraudulently called for the 35 contestee, though cast for contestant, 36 would be to require of the contestant 37 that which is impossible. But if the 38 proof be sufficient to justify the 39 Court in going behind the official 40 returns and sufficient to conclude that 41 an unauthorized approach to the ballots 42 in the box has been sufficiently 43 guarded against, then the recount of 44 these ballots establishes the truth or 45-16- falsity of the charge made as to 1 miscalling ballots. 2 3 4 5 Id. at 166. See also Dixon v. McClary , 209 Tenn. 81, 349 6 S.W.2d 140 (1961); Summitt v. Russell , 199 Tenn. 174, 285 7 S.W.2d 137 (1955). 8 9 In their brief, the plaintiffs state that they 10 are not seeking to have the election declared void. The 11 contestants allege, in effect, that the election was valid 12 and they seek a recounting of the ballots. The contestants 13 allege specifically that there were irregularities in the 14 counting of the ballots. Each contestant contends that a 15 recounting will show that the contestant received a 16 majority of the valid ballots cast. The only evidence on 17 this issue was the estimate by one election judge that 18 “approximately 20 ballots per district” in all nine 19 districts were invalidly rejected, and the testimony of 20 another judge that the rejection practice was applied to 21 ballots cast for the contestees as well as for the 22 contestants but it was possible that if the rejected 23 ballots were counted, the results of the election would 24 have been different. This testimony is not sufficiently 25 probative to establish that the claimed errors exceed the 26 margins of victory. The record supports the finding that 27 the ballots were securely preserved and that there were 28 errors in tallying the votes. However, it does not 29-17- establish that the number of ballots improperly tallied 1 equals or exceeds the margins of victory. This 2 mathematical conclusion is essential to establishing the 3 right to have a recounting. Therefore, the trial court 4 properly found that the contestants failed to show that a 5 recounting “would have changed the result of the election 6 or rendered its outcome uncertain.” Forbes v. Bell , 816 7 S.W.2d at 724. I agree that the trial judge properly 8 dismissed the suit. 9 10

_____________________________ 11 Reid, J. 12 13