### IN THE COURT OF APPEALS OF TENNESSEE AT KNOXVILLE June 30, 200 3 Session STEVE FRITTS v. A NDERSON COUNTY ELECTION C OMMISSION, et al., and JERRY CREASEY v. ANDERSON COUNTY EL ECTIONS COMMIS SION, e t al. Direct Appeal from the Chancery Court for Anderson County Nos. 02CH2769 and 02CH2522 Hon. William E. Lantrip, Judge

FILED AUGUST 11, 2003 No. E2003-00015-COA-R3-CV

and No. E2002-03118-COA-R3-CV

In this elec tion conte st

of two seats on the County Commission, the Trial Court declar ed the top vote getter elected to one of

the seats and ordered another election between the other candidates for the other se at. On ap

peal, we affirm. Tenn. R. App.P.3 Appe al as of Right ; Judgme nt of the Cha

ncery Court Affirm

ed.
H ERSCHEL P ICKENS F RANKS , J., delivered the opinion of the court, in which C HARLES D. S USANO , J R ., J., and D. M ICHAEL S WINEY , J., joined.
Georg e H. Buxton

and Har old P. Cousin s, Jr., Oak

Ridge, T ennesse e, for Ste ve Fritt s. Da vi d A . S tu ar t, Cl in to n, Te nn es se e, fo r J er ry C re as ey. Donald B. Roe, Oak Ridge, Tennessee , for Harold Jernigan. William A. Reeves, Knoxville, Tennessee, for Anderson County Election Commission.

OPINION

In this action, the election for County Commissioners from the 7 th district of Anderso n-2-

Co un ty, held Aug

ust 1, 2002

was cont ested. Th ree ca ndidate s conten ded for the two seats on the commission. Jerry

Creasey and Har old Jernig an had been incumb ents, and Steve Fritts was the third candida te on the ballot. The certified returns of election showed Jernig an received the most votes with 805, and Fritts received 748 votes, and Creasey 747 votes. The re cord est

ablishes that the E

lection Co mmission did

not comply

with Tenn . Co d e Ann. § 2 -6 -6 01 , a s i t r el at es to th e O ak Ri dg e R et ir em en t C om mu ni ty F ac il it y. The record shows that this nursing home facility ha d approximately 165 residents of which ther e were 59 r egistered voters, 17 of whom voted in the election.

Jernigan filed a Motion to Dismiss, which the Trial Court granted and stated in the Order: 1) Only forty-two (42) votes wou ld be available to change the ce rtified election results as to defendant Jernigan; 2) Defendant Jernigan’s margin of victory was 57 votes and therefore the potentia lly disputed 42 votes a

vailable , rega

rdless of how those

votes mig

ht have be

en cast, would not change the results of the election as to def endant Jernigan; 3) The certified election results as to defendant Jernig an should stand; and therefore defendant’s Motion to Dismiss is well taken and should be granted. The Order went on to state that the ce rtified e

lection o f Jernig an to the Se venth Dist

rict Count

y Commission was affirmed.

The matter c ame on fo

r heari ng on the

rema inin g i ssues, and in the Court’s Final Judgment he declared the election between Cre asey and F ritts void, and ordered

their names to be placed upon the ballot for the general election to be he ld on November 5, 2002. In the Novembe r 5 th election, Creasey

prevailed over Fritts, and Fritts then filed a Complaint to Contest Election on November

14, 2002, which the Court dismissed on the grounds of res judic ata and estop

pel. Bot h actions have been consolidated in this appeal.

Fritts essentia

lly argues that neither case law nor the statute provides for theremedy forged by the Trial Court, rathe r, the Court’s only op tion was to void the election results a s to all three c andidate s and orde r a new e lection w ith all thr

ee cand idates on the ballo t. Contested election cases are reviewa ble on appeal de novo. Barham v. Denison, 17 S.W.2d 692 (Ten

n. 1929). Absent a

showing of frau d or illeg ality , the cour ts w ill refrain from interfering with election returns. Lee v. Tuttle, 965 S.W.2d 483, 485 (Tenn. 1998).

Tenn. Code Ann. § 2-17-112 provides for remedies in election contests.-3- 2-17-112. Judgment. - (a) After hearin g the case the court shall give judg ment either: (1) Confirming the election; (2) Declaring the election void; (3) Declar ing a tie betwee n personswho have

the same number of

votes if it appears that two (2) or more p ersons who have the same number of votes have or would have had if the ballot intended for them and illegally rejected had bee n received, the highest number of votes for the office; or (4) Declaring a person duly elected if it appears that such person received or w ould have re ceived t

he highest numbe

r of vote s had the b allots inte nded for su c h person and illegally

rejected been received. (b) A judgment under subdivision (a)(4) deprives the person whose election is contested of all right or claim to the office and inve sts the person declared by the judgment duly ele cted with the right to the office. The crux of Fritts’ argume nt on appe al as stat

ed in his br

ief, is:

. . . The basis for the Trial Court’s dismissal of Jernigan and for its Judgment ordering a new election between twoof the three candidates was there we re potential voters that might have changed the e lection results of August 1, 2002. However, a review of the Order

dismissing Jernigan and the FI NAL JUDGMENT, support the conclusion that the election was rendered inc ur ab ly u ncerta in. It is impossibl e to determine whether any

of the forty- two (42) voters in question would have voted or how th ey w ould have voted. To do so is speculation. When a Trial Court finds irregularities in an ele ction con test whic h results in it

being im possible to

determine how the vote tabulation affected the vote for eac h candidate, then the election i s incurab ly uncertain and in accordance with Emery v. Robertson County Elect. Com. , 586 S.W.2d 103 (Tenn. 1979) and Austin v. M ayfield , 611 S.W.2d 824 (Tenn. 1981), the Trial Cour

t has only one option

and that i s to void the entire election as to all of the cand idates. We cannot agree. Fritts is correct

in that it is a matter of speculation as to how the 42 potential voters may have vote d. However, that is not the test in election contests. Emery states: The reported decisions of this state uniformly authorize the courts to void an election where the evide

nce rev eals tha

t the numbe

r of illeg al ballots

cast equ als or exceeds the differe

nce betw een the t

wo candi dates receiving

the most votes. The rule is based upon the ratio nale tha

t if all of the i llegal votes had been cast for the unsucc essful candida te the result

would have been changed. See, e. g., Ingra m v. Burne tte, supra ;-4- Hillard v. Park , supra . In Southall v. Billings , 213 Tenn. 280, 375 S.W.2d 8 4 4 (1963), Mr. Justice White, writing for the Court, suggests that such a mathematical purgi ng of votes renders the election void because of the unc ertainty of re sult. Id. 375 S.W.2d at 850. Applying this t est, t he 42 pote ntial vote s neit her e qual ed nor exc e eded the differe nce betw een Har

old Jernigan and the other two candidates. Emery is instructive and was an election contest involving a sheriff ’s race and two po sitions on th

e county commission in the 4 th district o f Roberts on County where there we

re four candida tes. Commiss ion candi date Dor ris had r eceive d 453 vote s, candid ate Shed d en 342 votes, candidate Bellar 341 votes, and the 4th candidate 23 votes. In this reg ard the Emery Court said: The proof shows that thirty-seve n absentee ballots wer e cast in the Fourth District and that at least eleven, if not more, of the absentee ballots rejec ted wer e cast by Fourth District voters. Thus, the Chancellor could have voided the certification of Shedden who had only one more vote that Bellar, on that simple m ath ematical calculation. . . . The Court

went on to

say that:

. . . The irr

egular ities found by

the Chanc ell or were of suc h a nature that it was impossible to say that they affected the vote for

candidates Bellar and Shedden but didnot affect

the vote for candidate Dorris, or that they did not affect the vote in the Sheriff’s race. The “irregularities” in this case do not rise to the level de scribed in Emery

. Here, we are conce rned w ith 42 p otential v oters who may have voted had the E

lection Co mmission co mplied with its statutory duties. Clearly this affe cted the vote for candidates Fritts and Creasey , but did not affect the vote f or Jernig an apply

ing the r ationale quoted fr om Emery

. Mayfield doe s no t s upp ort Fri tt s’ a rgu men t. In the elec tion conte st in Mayfield over the members of the Board of Aldermen of the town of Maury City there

were eight candidates for five positions o n the Boa

rd and the vote tota ls for the eight in descending order were

216, 163, 159, 156, 150, 147, 129 and 125. The top five vote getters were elected and the sixth runner-up with 147 votes filed the election contest. The Supreme Court, speaking throug h Justice Fones, said:
In this Court a

ppellant , May

field, ins ists that at least thirty-five vote s were ill egally cast, and he ha s identi fied the individual voters. If May field’s contentions are correct, the election would be void as to every candida te except Riddick. However, the proof was va gue , incomplete, and rendered uncertain bec ause of the erroneous ruling of the trial judge on thevalidity of Austin’s amendment and other rulings that followed in the w ake thereo f. Also, as indicated above, the Chancellor made no finding of fact with respect to the validity or invalidity of the thirty -f ive identifi ed-5- cit izens whose votes may ha ve been tainted with some irregularity . I t i s ina ppropria

te for this Court to assu

me the ro le of orig

inal fac t finder, even if

th e factual record appeare d complete. We, therefore, remandthis case back to the trial court for further conside ration of the evidence offered and such additional evidence a s may be appr opriate that

relatesto all allega tions in both

the original and a

mended c omplaints. If th e trial court’s finding of fact supports a conclusion that the election was rende redinc urably uncertain, th e c ha ra ct er of ir re gu la ri ti es sh ou ld be sp ec if ic al ly identifie d and the entire election should be voided. If the find ings suppor

t the purgi

ng of a spec ific number of ballots cast by identifiable citizens, then the election should be declared void as to all candidates wh ose total v ote did not exceed Austin’s one-hundred and forty-se ven vote s by more than the nu

mber of v oid ballots . (Emphasis supplied). Ac co rd in gl y, Mayfield

holds in races for multiple positions, that a remedy may be to void the elec tion as to

certain candidates, but

not all. The case of Forbes v . Bell, 816 S.W.2d 716 (Tenn. 1991), recognizes that statutory violations may

be sufficient to render an election void, but the Court then recognized that the violationmust be so s erious a s to thwart the will of th e community upon a particular question. The statutory violation established in this case does not rise to that leve l.
We affirm the Trial Court’s Order ordering another election as to the unfilled seat betwee n the rem aining c andidate s Crease y a nd Fritts

. As to the subs equent su

it filed by Fr

itts after the November election, the Trial Court held that the parties and issues in the subsequent action were the same as the issues raised a nd cited in the first election contest and dismissed the action. Our decision aff irmin g the Trial Court’s Judgmentin the initial election contest renders moot this subsequent action, because the basis of the subsequent

action wa s that the e

ntire election in Au gust

should have been rendered void and all three of the ca ndidates should hav e been p laced on the Nove mber ballot. We affirm the Judgments of the Trial Court and remand with the cost of the appeal assesse d to Steve F

ritts.

_________________________ H ERSCHEL P ICKENS F RANKS , J.-6-