                   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 7th district of Anderson
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
5th 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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