Jackson v. Maley

• Decision Date: 06 November 1990
• Citation: 1991 OK 7,806 P.2d 610
• Parties: The Honorable Niles JACKSON, Petitioner, v. The Honorable John MALEY, Presiding Judge over the Petition of Wendell Smith Alleging Irregularities in the General Judicial Election Held
• Court: Oklahoma Supreme Court

Page 610

806 P.2d 610

1991 OK 7

The Honorable Niles JACKSON, Petitioner, v. The Honorable John MALEY, Presiding Judge over the Petition

of Wendell Smith Alleging Irregularities in the General

Judicial Election Held November 6, 1990, for Judicial Office

No. 3, Oklahoma County, Oklahoma; The Honorable Lance Ward,

Secretary of the State Election Board, State of Oklahoma;

The Honorable Marti L. Hayes, Election Board Secretary,

Oklahoma County; and Wendell Smith, Contestee of the

November 6, 1990 General Judicial Election, Respondents.

No. 76774.

Supreme Court of Oklahoma.

Feb. 4, 1991.

As Corrected Feb. 8 and 25, 1991.

Rehearing Denied Feb. 25, 1991.

Action to Assume Original Jurisdiction and Grant Writs of Mandamus; John Maley, Trial Judge.

Unofficial losing candidate for district judge brought petition alleging irregularities arguing either he should be issued a certificate of election or the election results should be declared void and a new election held because it was impossible to determine with mathematical certainty the correct outcome of election. The trial judge found sufficient irregularities to hold the election results void and ordered a new election. Held: The trial court erred in voiding the election results and ordering a new election. Although certain irregularities occurred in the election the proof was wholly insufficient to show it was impossible to determine with mathematical certainty which candidate for the office was entitled to be issued a certificate of election.

ORIGINAL JURISDICTION ASSUMED; TRIAL COURT JUDGMENT VACATED.

Kenneth R. Nance and Thomas J. Daniel IV, Oklahoma City, for petitioner.

Lana Jeanne Tyree and Phyllis L. Walta, Oklahoma City, for respondent Smith.

Robert H. Henry, Atty. Gen., and Dan M. Peters, Asst. Atty. Gen., Oklahoma City, for respondent Ward.

Dick A. Blakeley, Asst. Dist. Atty., Tulsa, for respondent Hayes.

LAVENDER, Justice.

Petitioner, Niles Jackson, the announced winner at the general election held on November 6, 1990, for office three, district judge, seventh judicial district, Oklahoma County, requests us to assume original jurisdiction and issue certain writs of mandamus. He asks us to issue a writ of mandamus to Respondent, the Honorable John Maley, trial judge over a petition alleging irregularities filed by Respondent, Wendell Smith (announced loser of the election), directing him to deny the petition. The trial judge in ruling on Smith's petition held it could not be determined with mathematical certainty which candidate was entitled to a certificate of election and he entered judgment ordering a new election. Jackson also asks for writs of mandamus to the Oklahoma State and County Election Boards directing them to issue him a certificate of election to the contested office. The secretaries of the election boards, Lance Ward and Marti L. Hayes, respectively, have been named as Respondents. ¹ Recognizing the great public importance of election matters we assume original jurisdiction under OKLA. CONST. art. VII, § 4 and cases such as Keltch v. Alfalfa County Election Board, 737 P.2d 908, 909 (Okla.1987) and Helm v. State Election Board, 589 P.2d 224, 226 (Okla.1979). We further vacate the judgment of the trial judge.

After the election Jackson was the announced winner by 157 votes according to the official canvass generated by the Oklahoma County Election Board. ² He had 68,004 votes to Smith's 67,847. Smith attempted to impeach the official canvass by showing there were a sufficient number of irregularities so that it was impossible to determine with mathematical certainty which candidate was entitled to be issued a certificate of election. ³ The trial judge ruled he carried his burden to so show. We hold the trial court erred.

The judgment of the trial judge is broken down into three parts. The first part finds certain irregularities which the trial judge ruled established it could not be determined with mathematical certainty which candidate was entitled to a certificate of election. Such determination in an irregularity matter is required by statute. 26 O.S.Supp.1990, § 8-120(2). The burden of establishing same is upon the contestant, here Smith. Groves v. Bumgarner, 662 P.2d 307, 308 (Okla.1983); Helm v. State Election Board, supra, 589 P.2d at 227; Hembree v. City of Stilwell, 597 P.2d 1218, 1220 (Okla.1979). These irregularities found by the trial court are as follows. (1) 87 persons who voted at the election in Oklahoma County were shown to not be registered to vote by the records of the Oklahoma County Election Board; (2) 77 ballots cast at the election were not read by the electronic scanning (counting) devices used by Oklahoma County to count the ballots; ⁴ (3) 66 more votes were cast than persons signing the official precinct poll books, challenged voter and absentee voter affidavits; and (4) one person voted at two different precincts.

The trial judge next found a series of irregularities he said "cast serious doubt as concerns the mathematical certainty of the election...." These were as follows. (1) 587 spoiled ballots were issued without proper affidavits; ⁵ (2) at precinct 225 there was a lack of control over the ballots and voters were not allowed to place ballots in ballot boxes of any type, but were instructed to leave them on a table in open view; (3) there were numerous head errors pertaining to the electronic scanners; (4) there were numerous problems with the electronic scanners; (5) there were several electronic scanning tapes (precinct vote total tapes) which did not have a zero tape attached; (6) numerous accounting errors on the precinct ballot accounting forms exist which means all ballots were not accounted for by precinct officials; and (7) there was a lack of proper marking equipment, to wit: specialized pens which allow the scanner to properly record the vote.

The third category of irregularity concerned the trial judges "questioning" of whether the election results were reversed, i.e. that Smith really won by 157 votes, rather than Jackson. However, no finding was made by him the results were so reversed and as we shall demonstrate the evidence in this record does not support such a conclusion. Instead, the evidence unequivocally refutes it. We shall discuss the various irregularities found by the trial court and their impact, if any, on this election.

In order for an irregularity to establish it is impossible to determine with mathematical certainty which candidate was the winner a contestant must make a prima facie case of mathematical uncertainty. See Helm, supra, 589 P.2d at 228. Only then does it become incumbent on the announced winner to go forward with the evidence to establish he achieved victory by a mathematical certainty. Id. This is so because a contestant in Smith's position must present at least enough evidence to impeach the correctness of the precinct returns, as embodied in the official canvass of the county election board, which are prima facie evidence themselves of the correctness of the vote. To so impeach the precinct returns a contestant must, at least, make a showing either illegal votes were cast or votes were cast by legal voters that should have been counted, but were not, or were counted incorrectly, in sufficient numbers, to eliminate his opponent's margin of victory. See Hembree, supra, 597 P.2d at 1220; see also Helm, supra, 589 P.2d at 227-228. He could also show some other irregularity, such as legal voters, again in sufficient numbers, were denied the right to vote. He must make such a showing because courts indulge every presumption in favor of the validity of an election and, where possible, that validity will be sustained. Keltch, supra, 737 P.2d at 911. Mere probabilities will not suffice to carry this initial burden. Groves, supra, 662 P.2d at 308. From our review of this record we find only two of the trial court's rulings arguably meeting the prima facie standard, but the number of votes involved are wholly insufficient to eliminate Jackson's margin of victory. Thus, the trial court erred in his determination to order a new election.

Oklahoma County has over 280 precincts within its boundaries. During the general election over 172,000 votes were cast in the county of which over 135,000 were cast in this race. To vote at a precinct the person presenting himself on the day of the election must be a registered voter. To determine if one is registered precinct officials are provided with a precinct registry (poll book) which is compiled by the county election board and provided to the precincts. 26 O.S.Supp.1990, § 7-102.1 and § 7-114. Voters in the registry are required to sign it when they present themselves to vote. 26 O.S.Supp.1990, § 7-117. Persons not listed in the registry, but who present themselves to vote may still cast a ballot if they present a voter identification card and sign an affidavit swearing that he/she is a registered voter of the precinct and no absentee ballot has been cast. 26 O.S.Supp.1990, § 7-116. The first irregularity found by the trial court concerns these latter voters. He ruled 87 of these voters, at the time of hearing, were not shown to be registered in the records of the county election board. Clearly our case law supports the view that the vote of an unregistered voter is illegal and should be discarded. Baggett v. State Election Board, 501 P.2d 817 (Okla.1972). Our review of the record bears out this finding of the trial court, but the 87 votes alone are insufficient in numbers to meet the prima facie case for Jackson's margin of victory was 157 votes according to the precinct returns. ⁶

The trial court also found one person voted at two different precincts. The record bears out this finding. Documentary evidence was provided a person with the exact same name and address voted at the two precincts, apparently at one by signing a challenged voter affidavit. Although Jackson argues it simply could have been a case of two...