Helm v. State Election Bd., 53014

• Citation: 589 P.2d 224
• Decision Date: 03 January 1979
• Docket Number: No. 53014,53014
• Parties: State Senator Mary HELM, Petitioner, v. The STATE ELECTION BOARD of the State of Oklahoma and the Honorable Lee Slater, Secretary of the State Election Board, Respondents.
• Court: Supreme Court of Oklahoma

Page 224

589 P.2d 224

State Senator Mary HELM, Petitioner, v. The STATE ELECTION BOARD of the State of Oklahoma and the

Honorable Lee Slater, Secretary of the State

Election Board, Respondents.

No. 53014.

Supreme Court of Oklahoma.

Jan. 3, 1979.

As Amended Jan. 8, 1979.

Rehearing Denied Jan. 12, 1979.

Candidate-Petitioner Helm asks this Court to assume original jurisdiction and prohibit the issuance of a Certificate of Election to her opponent Cain in a General Election Contest for the office of State Senator, Senate District No. 46, for the reason that outcome of the election cannot be determined with mathematical certainty. A trial authority appointed by the Chief Justice of the Supreme Court found from the evidence that Cain could be determined the winner by mathematical certainty and rejected a stipulation as to the testimony of ten voters as to how they voted in the State Senate race.

APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED. PETITION FOR WRIT OF PROHIBITION DENIED.

Stephen Jones, Enid, for petitioner.

William P. Bleakley and Eric Groves, Jernigan, Groves, Bleakley & Moorman, Oklahoma City, for intervenor, Cain.

SIMMS, Justice:

Petitioner, State Senator Mary Helm, was a candidate for election in the November 7, 1978, general election for the office of State Senator, Senate District No. 46, Oklahoma County, Oklahoma. Helm was opposed in the election by Intervenor, Bernest Cain. A dispute exists over the votes cast on an improperly programmed voting machine in Ward 6, Precinct 5, of Oklahoma City.

Helm asks this Court to assume Original Jurisdiction and prohibit the issuance of a certificate of election to Cain by the State Election Board for the reason that it is impossible to determine with "mathematical certainty" that Cain was the winner of the election.

We assume Original Jurisdiction under the provisions of Article VII, Section 4, Oklahoma Constitution, and by reason of Edmondson v. State, ex rel., Phelps, Okl., 533 P.2d 604 (1974); Baggett v. State Election Board, Okl., 501 P.2d 817 (1972), and Williamson v. State Election Board, Okl., 431 P.2d 352 (1967).

After the senatorial election was contested by Helm, Judge Tom Cornish of the Court of Criminal Appeals was appointed by the Chief Justice of this Court to hear and determine the contest. Neither party objected to the appointment of Judge Cornish.

The matter was heard below on both stipulations of fact and oral testimony from expert witnesses.

Avoidance of inaccuracy mandates that we hereinafter set forth the germane portions of the written stipulation as set forth here:

"4. An irregularity was made in Ward 6, Pct. 5, in machine No. 125917 concerning the arrangement of names on the ballot. The names of the candidates for State Senate on this machine were out of order in that the individual lever designated Mary Helm actually cast a vote for her opponent Bernest Cain because Senator Helm's name was on the top position of the ballot and Mr. Cain's name was directly beneath hers, whereas on the back of the machine where the votes were actually registered mechanically Senator Helm's name was below that of Mr. Cain's.

"5. Party lever labels initially on machine 125917 designated the candidate for the opposing party; that is, the party lever label designated 'Republican' was across from the label indicating the Democratic candidate, Bernest Cain, and vice-versa.

"6. After the election had been in progress some time, the straight party labels were reversed by the Precinct Election Judge.

To put it another way, the Court finds that during the first panel configuration, if any individual voter cast a straight Republican vote, the effect was that he voted for Senator Helm, and if a voter cast a straight Democratic ticket the effect was that he voted for Bernest Cain; if a voter pulled an individual lever for Mary Helm, he actually voted for Bernest Cain, or if he pulled the individual lever for Bernest Cain, he actually voted for Senator Mary Helm.

"7. After the adjustment had been made which is set forth in stipulation No. 6, the result was that if a voter voted straight Republican he in effect voted for Bernest Cain for State Senate, and if he voted the straight Democratic ticket, he cast a vote for Senator Mary Helm.

"8. The machine was shut down at 5:30 P.M. on order of the County Election Board at at that time or soon thereafter, the vote was taken off the machine which showed that on machine 125917, 78 votes were cast for Senator Mary Helm, 107 votes for Bernest Cain, and 15 votes for Nelson Berry, the Indiependent candidate.

"9. The Oklahoma County Election Board certified this machine's results in its figures to the State Election Board for the purpose of certifying the winner in State Senate District 46. On the face of the return submitted to the State Election Board, there were 5,290 votes cast for Mr. Cain, 5,084 votes cast for Senator Mary Helm, and 283 votes cast for Nelson Berry or a difference of 206 votes for Cain over Helm. However, these totals included all of the votes cast on machine 125917. If the votes cast on this machine are excluded from the totals, the result would be 5,183 votes for Mr. Cain, 5,006 votes for Senator Helm, and 283 votes for Nelson Berry. At that point, the number of votes separating the leading candidates would be less than the number of votes in dispute, i. e., there are 177 votes separating the two major candidates and 185 votes in dispute."

In other words, petitioner contends that on the machine in question, there were 185 improperly registered or counted votes which exceeds the 177 vote differential as between she and Intervenor Cain. Therefore, she concludes she has met her burden of proving that it is impossible to determine with mathematical certainty whether she or Cain is entitled to be issued a certificate of election. 26 O.S.1974 Supp., § 8-120.

Expert witnesses in the field of mathematics and statistical analysis were called to give an opinion as to the establishment of "mathematical certainty" by both Helm and Cain. Close scrutiny of the testimony given by the expert witnesses shows it was predicated on statistical analysis, election behavior, and mathematical Probabilities. Although mathematical probabilities may be an acceptable criteria for ascertaining the outcome of an election in some jurisdictions, it certainly is not the test to be applied in Oklahoma. Section 8-120, supra, demands "mathematical certainty." This Court in Williamson, supra, held:

"Having determined that it is not possible under the record before us to determine with Mathematical certainty which candidate received the majority of the votes cast in the Senatorial Election under consideration, . . . Williamson's application for Writ of Mandamus directing the State Election Board to certify him as being the duly elected candidate to the office of State Senator, Senatorial District No. 36, Tulsa County, and to issue him a Certificate of Election, is accordingly denied."

The Williamson rule of mathematical certainty was followed in Baggett, supra; And Edmondson, supra. Further analysis of Williamson shows that this Court drew a clear distinction between "mathematical certainty" and "probability" when we stated at page 358:

"We have examined the entire returns as reflected by the 'Findings' and 'Transcript of the Proceedings of the Tulsa County Election Board', and have analyzed the votes received by all the candidates on machine 'A' and can only conclude that it is Highly probable that Williamson received the majority of all the votes cast in the Senate race, which includes the 94 'unaccounted for' votes."

Here, like in Williamson, it is "highly probable" that Cain received sufficient votes on the incorrectly programmed machine in Ward 6, Pct. 5, to have won the election. But, mere probability alone, no matter how great, is insufficient to declare either party the winner of a contested election in this State.

We acknowledge that it is proper to call expert witnesses to testify as to their opinions on varied subjects. However, we emphatically reject the notion that it is proper in this jurisdiction, under the mathematical certainty rule, to use an expert witness for the purpose of voicing an opinion as to who received the greater number of votes in an election when the expert's opinion is predicated upon a core-relation between the questioned machine or ballot box and the actual known results on other machines or in other ballot boxes. Nor should an expert witness be permitted to testify as to his opinion based upon any method of "sampling", nor should he be permitted to voice any opinion as to the outcome of any election based upon "election behavior".

The term "mathematical certainty" as used in the cited cases and statute, is ascertainable only by mathematical computation. In other words, if by use of simple arithmetic, person "A" receives more votes than person "B", it is mathematically certain that person "A" won the election. If, however, the number of so-called disputed votes exceeds the numerical margin by which one candidate is shown to have won over the other candidate, exclusive of the disputed votes, then Mathematical uncertainty is shown to exist.

Here, the "disputed" votes totalled 185. The numerical margin of Cain over Helm is 177. We conclude that Helm has established the burden of proof she assumed under 26 O.S.1974 Supp., § 8-120, supra.

Going forward with the evidence, Intervenor Cain sought to establish that he had achieved victory by a mathematical certainty by offering the testimony of ten legally registered voters to show that they had factually voted on the questioned machine, and that they had cast their vote for Cain. Petitioner and Intervenor entered into the following stipulation of record:

"BY MR. GROVES: (At the bench) The following is an offer to stipulate to the testimony of ten witnesses, each of whom are present in the courtroom under the subpoenae of the...