Des Champ v. Featherston

• Decision Date: 26 October 1994
• Docket Number: No. 3-94-285-CV,3-94-285-CV
• Citation: 886 S.W.2d 536
• Parties: L.T. DES CHAMP, Appellant, v. Billy R. FEATHERSTON, Appellee.
• Court: Texas Court of Appeals

Page 536

886 S.W.2d 536

L.T. DES CHAMP, Appellant, v. Billy R. FEATHERSTON, Appellee.

No. 3-94-285-CV.

Court of Appeals of Texas Austin.

Oct. 26, 1994.

William H. Bingham, McGinnis, Lochridge & Kilgore, L.L.P., Austin, for appellant.

Randall B. Wood, Doug W. Ray, Ray, Wood & Fine, Austin, for appellee.

Before ABOUSSIE, JONES and KIDD, JJ.

PER CURIAM.

Appellant L.T. Des Champ filed an election contest challenging the outcome of the runoff election held on April 12, 1994, for the Democratic nomination for County Judge of Llano County, Texas. The district court rendered judgment upholding the election and declaring appellee Billy R. Featherston the winner. We will affirm the trial-court judgment.

BACKGROUND

This case involves the April 12, 1994, runoff election for the Democratic nomination for County Judge of Llano County between Des Champ and Featherston. The initial canvas of votes revealed that Des Champ won the election by two votes--929 to 927. Featherston then requested a recount, and the official election result after the recount showed that the election was tied 929 to 929. Pursuant to the mandate of the Election Code, the candidates drew lots. See Tex.Elec.Code Ann. § 2.028 (West 1986). Upon winning the draw, Featherston was declared the winner of the election.

Des Champ timely perfected a statutory election contest. Tex.Elec.Code Ann. §§ 232.001--.050 (West 1986 & Supp.1994). He alleged a number of election irregularities, including movement of a polling place in violation of the Texas Election Code and Section 5 of the Voting Rights Act of 1965, casting of illegal votes, and failure to secure the ballots cast in the runoff as required by the Election Code. Following a nonjury trial, the district court rendered judgment in favor of Featherston. The court found that Des Champ failed to prove that any of the alleged irregularities affected the outcome of the runoff election. It further determined that five people who had voted in the election, three of whom had voted for Des Champ and two for Featherston, were ineligible to vote. ¹ The court thus found the true outcome of the election to be 927 votes for Featherston and 926 votes for Des Champ.

DISCUSSION

In his appeal, Des Champ raises three points of error. He claims that the trial court erred: (1) in upholding the result of the runoff election because the movement of a polling place on the election day rendered the entire election void; (2) in failing to consider Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, as a collateral matter in resolving the election contest; and (3) in upholding the outcome of the runoff election because numerous other irregularities rendered the true result of the election improbable or impossible to ascertain.

We begin by addressing Des Champ's first point of error, which compels us to determine whether the trial court erred in not ordering a new election because the movement of the polling place for precinct number three rendered the election void. The Democratic primary had long been held in the Volunteer Fire Department building (the "Volunteer building"), and the notices for the primary and the runoff election stated that each election would be held in that building. However, on the morning of the election, precinct chairman Harold Steadman moved the polling place from the Volunteer building to the nearby Red Barn Community Center (the "Red Barn"). Des Champ asserts that this change prevented some individuals from voting.

Election Code provisions fall into two categories: mandatory and directory. To set aside an election for a violation of a mandatory provision, the contestant must prove only that a violation occurred. With few exceptions, such a violation results in the automatic invalidation of the election. To set aside an election for a violation of a directory provision, however, the contestant must prove both that a violation occurred and that the irregularity affected the outcome of the election. See Branaum v. Patrick, 643 S.W.2d 745, 749-50 (Tex.App.--San Antonio 1982, no writ). Des Champ asserts that Election Code provisions governing the time and place of elections are mandatory and, consequently, any violation of these provisions automatically voids the election as a matter of law. The moving of the polling place for precinct three did violate the Election Code, as even Featherston concedes. See Tex.Elec.Code § 43.003 (West 1986). Our task is to determine whether provisions concerning the designation of a polling place are always mandatory and, further, to decide if the violation of the polling place provision in precinct three requires this Court to void the entire election.

Courts liberally construe Election Code provisions not clearly mandatory on their face as directory only. Ramsay v. Wilhelm, 52 S.W.2d 757, 759 (Tex.Civ.App.--Austin 1932, writ ref'd). However, "[p]rovisions regulating the time and place for holding elections are usually mandatory." Davis v. State, 75 Tex. 420, 12 S.W. 957, 961 (1889) (emphasis added); see also Branaum, 643 S.W.2d at 750 (stating in dicta that provisions setting the day and place of an election are usually mandatory); Shrader v. Ritchey, 306 S.W.2d 808, 809 (Tex.Civ.App.--Beaumont 1957) (declaring that place and time provisions are mandatory), on certificate, 158 Tex. 154, 309 S.W.2d 812 (1958); Clark v. Stubbs 131 S.W.2d 663, 667 (Tex.Civ.App.--Austin 1939, no writ) (holding that "[t]he time and place for holding elections are usually regarded as mandatory"); Coffee v. Lieb, 107 S.W.2d 406, 410-11 (Tex.Civ.App.--Eastland 1937, no writ) (determining that place and notice provisions for special elections are mandatory); Gray v. Ingleside Indep. Sch. Dist., 220 S.W. 350, 351 (Tex.Civ.App.--Fort Worth 1920, writ dism'd) (noting in dicta that place provisions are mandatory).

We therefore assume, without deciding the issue, that provisions governing the time and place for holding elections are mandatory. However, this assumption does not resolve the issue of whether a violation of such a provision requires a court to void the entire election. Courts have recognized that the policy behind time and place provisions dictates that violations should not always result in the voiding of an election. See, e.g., May v. State, 43 Tex.Crim. 54, 63 S.W. 132, 133 (Tex.Crim.App.1901); Ex parte Segars, 32 Tex.Crim. 553, 25 S.W. 26, 27 (Tex.Crim.App.1894). Even Des Champ concedes that a violation of a mandatory provision should not always result in the voiding of an election, identifying three categories of exceptions in which time and place provisions are not mandatory: (1) the collateral attack exception, which disallows an attack on an election through any means other than an election contest; (2) the de minimus exception, which enables a court to uphold an election in spite of a minor move that does not affect the election outcome; and (3) the prescription exception, which allows the establishment of a new voting location by prescription. For present purposes, we need examine only the second exception.

The Texas Supreme Court has explained the policy underlying time and place provisions: "It is of the essence of a fair election that a time should be fixed and a place appointed where each qualified voter may cast his ballot or give his vote." Davis, 12 S.W. at 961. The Court of Criminal Appeals used a similar rationale to explain the de minimus exception:

The object of a provision of this character is to insure a fair and honest election, by requiring each voter to cast his ballot at the same place where his neighbor voted, and those to whom his qualifications were best known and by whom, if necessary, they could be challenged.... Elections are the ultimate expression of the sovereign will. When fairly expressed,--that is, free from taint of fraud or charge of improper conduct,--it becomes the duty of courts to sustain them, where it can be done by a liberal construction of the laws relating to elections, rather than defeat them by requiring rigid conformity to law. The great public purposes which are accomplished by elections demand this.

Ex parte White, 33 Tex.Crim. 594, 28 S.W. 542, 544 (Tex.Crim.App.1894) (emphasis added). The court thus determined that a change in polling place across the hallway of the courthouse to another room was insufficient to void the election; the distance was very small, and voters knew where the poll was. Id. In a case decided the same year, the court determined that moving the poll to another street two blocks away did not represent sufficient grounds for voiding the election. The court held:

It does not appear that there has not been a fair expression of the will of the people.... It does not appear that any voter was deprived of his vote, nor was the change attributed to any fraudulent or improper motive, nor does it appear that the change was not known and concurred in by all the voters in ward 2. Indeed, ... we find that a larger proportionate vote was cast in ward 2 than in the other wards....

Ex parte Segars, 25 S.W. at 27; see also May, 63 S.W. at 133 (recognizing an exception to the general rule that place provisions are mandatory when changes in location are only slight and "were rendered necessary by some supervening cause"); Roper v. Scurlock, 29 Tex.Civ.App. 464, 69 S.W. 456, 458 (Tex.Civ.App.1902) (deciding that a changed polling place only 125 feet and within plain view of the designated polling place was not grounds for voiding the election), appeal dismissed, 193 U.S. 675, 24 S.Ct. 852, 48 L.Ed. 842 (1904).

We will proceed to consider whether the precinct three move falls within the de minimus exception. The polling place was moved across a parking lot from the Volunteer building to the Red Barn, a location in plain view of the designated polling place. Testimony established that at least one sign directed people to the new polling site. Des Champ argues that people were confused and did not...