IN THE COURT OF APPEALS OF TENNESSEE

AT KNOXVILLE

June 30, 2003 Session

STEVE FRITTS v. ANDERSON COUNTY ELECTION COMMISSION, et

al., and JERRY CREASEY v. ANDERSON COUNTY ELECTIONS

COMMISSION, et 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 election contest of two seats on the County Commission, the Trial Court declared the top vote

getter elected to one of the seats and ordered another election between the other candidates for the

other seat. On appeal, we affirm.

Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed.

HERSCHEL PICKENS FRANKS,J., delivered the opinion of the court, in which CHARLES D. SUSANO,

JR., J., and D. MICHAEL SWINEY, J., joined.

George H. Buxton and Harold P. Cousins, Jr., Oak Ridge, Tennessee, for Steve Fritts.

David A. Stuart, Clinton, Tennessee, for Jerry Creasey.

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 ofAnderson
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County, held August 1, 2002 was contested. Three candidates contended for the two seats on the

commission. Jerry Creasey and Harold Jernigan had been incumbents, and Steve Fritts was the third

candidate on the ballot. The certified returns of election showed Jernigan received the most votes

with 805, and Fritts received 748 votes, and Creasey 747 votes. 

The record establishes that the Election Commission did not comply with Tenn. Code

Ann. § 2-6-601, as it relates to the Oak Ridge Retirement Community Facility. The record shows

that this nursing home facility had approximately 165 residents of which there were 59 registered

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 would be available to change the certified election

results as to defendant Jernigan;

2) Defendant Jernigan’s margin of victory was 57 votes and therefore the potentially

disputed 42 votes available, regardless of how those votes might have been cast,

would not change the results of the election as to defendant Jernigan;

3) The certified election results as to defendant Jernigan should stand; and therefore

defendant’s Motion to Dismiss is well taken and should be granted.

The Order went on to state that the certified election of Jernigan to the Seventh District County

Commission was affirmed. 

The matter came on for hearing on the remaining issues, and in the Court’s Final

Judgment he declared the election between Creasey and Fritts void, and ordered their names to be

placed upon the ballot for the general election to be held on November 5, 2002. In the November

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 judicata and estoppel. Both

actions have been consolidated in this appeal. 

Fritts essentially argues that neither case law nor the statute provides for the remedy

forged by the Trial Court, rather, the Court’s only option was to void the election results as to all

three candidates and order a new election with all three candidates on the ballot.

Contested election cases are reviewable on appeal de novo. Barham v. Denison, 17

S.W.2d 692 (Tenn. 1929). Absent a showing of fraud or illegality, the courts will 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. 
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2-17-112. Judgment. - (a) After hearing the case the court shall give judgment

either:

(1) Confirming the election;

(2) Declaring the election void;

(3) Declaring a tie between persons who have the same number of votes if it

appears that two (2) or more persons who have the same number of votes have or

would have had if the ballot intended for them and illegally rejected had been

received, the highest number of votes for the office; or 

(4) Declaring a person duly elected if it appears that such person received or

would have received the highest number of votes had the ballots intended for such

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 invests the person declared by the

judgment duly elected with the right to the office.

The crux of Fritts’ argument on appeal as stated in his brief, is:

. . . The basis for the Trial Court’s dismissal of Jernigan and for its Judgment

ordering a new election between two of the three candidates was there were potential

voters that might have changed the election results of August 1, 2002. However, a

review of the Order dismissing Jernigan and the FINAL JUDGMENT, support the

conclusion that the election was rendered incurably uncertain. It is impossible to

determine whether any of the forty-two (42) voters in question would have voted or

how they would have voted. To do so is speculation. When a Trial Court finds

irregularities in an election contest which results in it being impossible to determine

how the vote tabulation affected the vote for each candidate, then the election is

incurably uncertain and in accordance with Emery v. Robertson County Elect. Com.,

586 S.W.2d 103 (Tenn. 1979) and Austin v. Mayfield, 611 S.W.2d 824 (Tenn. 1981),

the Trial Court has only one option and that is to void the entire election as to all of

the candidates.

We cannot agree.

Fritts is correct in that it is a matter of speculation as to how the 42 potential voters

may have voted. 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 evidence reveals that the number of illegal ballots cast equals or exceeds

the difference between the two candidates receiving the most votes. The rule is based

upon the rationale that if all of the illegal votes had been cast for the unsuccessful

candidate the result would have been changed. See, e.g., Ingram v. Burnette, supra;
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Hillard v. Park, supra. In Southall v. Billings, 213 Tenn. 280, 375 S.W.2d 844

(1963), Mr. Justice White, writing for the Court, suggests that such a mathematical

purging of votes renders the election void because of the uncertainty of result. Id.

375 S.W.2d at 850.

Applying this test, the 42 potential votes neither equaled nor exceeded the difference between Harold

Jernigan and the other two candidates. Emery is instructive and was an election contest involving

a sheriff’s race and two positions on the county commission in the 4th district of Robertson County

where there were four candidates. Commission candidate Dorris had received 453 votes, candidate

Shedden 342 votes, candidate Bellar 341 votes, and the 4th candidate 23 votes. In this regard the

Emery Court said:

The proof shows that thirty-seven absentee ballots were cast in the Fourth District

and that at least eleven, if not more, of the absentee ballots rejected were 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 mathematical

calculation. . . .

The Court went on to say that:

. . . The irregularities found by the Chancellor were of such a nature that it was

impossible to say that they affected the vote for candidates Bellar and Shedden but

did not 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 described in Emery. Here, we are concerned

with 42 potential voters who may have voted had the Election Commission complied with its

statutory duties. Clearly this affected the vote for candidates Fritts and Creasey, but did not affect

the vote for Jernigan applying the rationale quoted from Emery. 

Mayfield does not support Fritts’ argument. In the election contest in Mayfield over

the members of the Board of Aldermen of the town of Maury City there were eight candidates for

five positions on the Board and the vote totals 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 through Justice Fones, said:

In this Court appellant, Mayfield, insists that at least thirty-five votes were illegally

cast, and he has identified the individual voters. If Mayfield’s contentions are

correct, the election would be void as to every candidate except Riddick. However,

the proof was vague, incomplete, and rendered uncertain because of the erroneous

ruling of the trial judge on the validity of Austin’s amendment and other rulings that

followed in the wake thereof. Also, as indicated above, the Chancellor made no

finding of fact with respect to the validity or invalidity of the thirty-five identified
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citizens whose votes may have been tainted with some irregularity. It is

inappropriate for this Court to assume the role of original fact finder, even if the

factual record appeared complete.

We, therefore, remand this case back to the trial court for further consideration of the

evidence offered and such additional evidence as may be appropriate that relates to

all allegations in both the original and amended complaints. If the trial court’s

finding of fact supports a conclusion that the election was rendered incurably

uncertain, the character of irregularities should be specifically identified and the

entire election should be voided. If the findings support the purging of a specific

number of ballots cast by identifiable citizens, then the election should be declared

void as to all candidates whose total vote did not exceed Austin’s one-hundred and

forty-seven votes by more than the number of void ballots. (Emphasis supplied).

Accordingly, Mayfield holds in races for multiple positions, that a remedy may be to

void the election 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 violation must be so serious as to thwart the will of the community

upon a particular question. The statutory violation established in this case does not rise to that level.

We affirm the Trial Court’s Order ordering another election as to the unfilled seat

between the remaining candidates Creasey and Fritts.

As to the subsequent suit filed by Fritts after the November election, the Trial Court

held that the parties and issues in the subsequent action were the same as the issues raised and cited

in the first election contest and dismissed the action. Our decision affirming the Trial Court’s

Judgment in the initial election contest renders moot this subsequent action, because the basis of the

subsequent action was that the entire election in August should have been rendered void and all three

of the candidates should have been placed on the November ballot.

We affirm the Judgments of the Trial Court and remand with the cost of the appeal

assessed to Steve Fritts.

_________________________

HERSCHEL PICKENS FRANKS, J.
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