                    IN THE COURT OF APPEALS OF TENNESSEE
                               AT KNOXVILLE
                             August 16, 2007 Session

 JOSEPH LEE v. ANDERSON COUNTY ELECTION COMMISSION, et al.

                 Direct Appeal from the Chancery Court for Anderson County
                 No. 06CH6334      Hon. Jon Kerry Blackwood, Special Judge



                 No. E2006-02572-COA-R3-CV - FILED OCTOBER 31, 2007


The Trial Court dismissed this election contest on Motion. On appeal we hold the allegation that
enough illegal votes were cast to change the outcome of the election when taken as true stated a
cause of action.


Tenn. R. App. P.3 Appeal as of Right; Judgment of the Chancery Court Affirmed in part,
Vacated in part, and remanded.


HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the court, in which SHARON G. LEE, J.,
joined, and CHARLES D. SUSANO , JR., J., filed a dissenting opinion.

Wendell K. Hall, Sevierville, Tennessee, for appellant.

William A. Reeves, Knoxville, Tennessee, for appellee, Anderson County Election Commission.
Harry L. Lillard, Oak Ridge, Tennessee, for appellee, Jerry Creasey.
Michael W. Ritter, Oak Ridge, Tennessee, for appellee, John Shuey.



                                               OPINION


                 In this election contest filed by the plaintiff against the Anderson County Election
Commission, various commissioners, and other candidates for county commission in the August
2006 election, the Trial Judge, responding to motions to dismiss the Complaint on the grounds it
failed to state a cause of action, that it was filed outside the ten day statute of limitations,1 and that


        1
         This defense was abandoned as it was not raised on appeal, moreover the Complaint was
filed on August 11, 2006.
the grounds alleged were insufficient to void the election, dismissed the action on the motions.

                 Plaintiff alleged that he was a candidate for the county commission in the general
elections held on August 3, 2006, and that the unofficial results were that he received 527 votes,
John Shuey received 528 votes, and Jerry Creasey received 999 votes.2 He alleged that certain votes
in the election should be deemed illegal, and that there were violations of the election statute which
“so permeated the conduct of the election as to render it incurably uncertain”.

                 Plaintiff alleged that Tenn. Code Ann. §2-7-118 states that a voter cannot remain in
the booth for more than 5-10 minutes, but that several voters in said election exceeded the time
limits, and yet the election officials did nothing. He alleged that many voters who were waiting left
without voting. He also alleged that at the Highland View precinct, paper ballots were issued to and
utilized by voters, even though the voting machines were not out of order, in violation of Tenn. Code
Ann. §§2-7-108, 2-7-119, and 2-9-109.

                 Plaintiff averred that the number of illegal votes cast was greater than the margin of
victory in the election, and he sought to examine all the paper ballots immediately, a speedy trial,
a ruling that all who left due to the wait would be allowed to vote, a ruling that all of the votes that
took more than the time limit be considered illegal, and for the Court to declare the election void.

                The Trial Court dismissed the case on motion and the plaintiff has appealed. These
issues are raised on appeal:

                 1.      Whether a Complaint to Contest Election, alleging intentional disregard by
                         election officials of the time limits for voting prescribed by law, resulting in
                         more votes cast in excess of the time limits than the margin of the election
                         results, states a claim upon which relief can be granted?

                 2.      Whether a Complaint to Contest Election, alleging intentional disregard by
                         election officials of the time limits for voting prescribed by law, resulting in
                         the disenfranchisement of more prospective voters than the margin of the
                         apparent outcome in the election, states a claim upon which relief can be
                         granted?

                 3.      Whether a Complaint to Contest Election, alleging the issuance of illegal
                         paper ballots at a precinct utilizing computerized voting machines, where
                         none of the machines had become out of order, states a claim upon which
                         relief can be granted?

              The standard of review for determining whether the trial court properly granted a
motion to dismiss is as follows:

       2
           The top two vote getters were to be elected.

                                                   -2-
               A Rule 12.02(6), Tenn. R. Civ. P., motion to dismiss for failure to state a claim upon
               which relief can be granted tests only the legal sufficiency of the complaint, not the
               strength of a plaintiff's proof. Such a motion admits the truth of all relevant and
               material averments contained in the complaint, but asserts that such facts do not
               constitute a cause of action. In considering a motion to dismiss, courts should
               construe the complaint liberally in favor of the plaintiff, taking all allegations of fact
               as true, and deny the motion unless it appears that the plaintiff can prove no set of
               facts in support of her claim that would entitle her to relief. In considering this
               appeal from the trial court's grant of the defendant's motion to dismiss, we take all
               allegations of fact in the plaintiff's complaint as true, and review the lower courts'
               legal conclusions de novo with no presumption of correctness.

Stein v. Davidson Hotel Co., 945 S.W.2d 714, 716 (Tenn. 1997)(citations omitted); Stuart v.
Anderson County Election Com'n, 2007 WL 1108901 (Tenn. Ct. App. 2007), perm. app. denied
(September 17, 2007). In this case, we must construe the complaint liberally in plaintiff’s favor,
must take all of the plaintiff’s allegations of fact as true, and must review the Trial Court’s legal
conclusion de novo.

             This case is factually similar with Stuart v. Anderson County Election Com'n, 2007
WL 1108901 (Tenn. Ct. App. 2007), perm. app. denied (September 17, 2007), which arose from the
same August 2006 election.

                The plaintiff in Stuart raised precisely the same allegations regarding the time limits
being violated, and the use of paper ballots, which he claimed resulted in substantial numbers of
illegal votes, and sought a ruling that the elections was void. Id. The only factual difference
between that case and this one is that the plaintiff in Stuart was running for general sessions judge,
and lost by a margin of 119 votes. Id. Otherwise, the Complaints are almost verbatim (which is
demonstrated by the significant quoted portion of the Complaint contained in the Stuart opinion).
Id. Both plaintiffs alleged that substantial numbers of illegal votes were cast, and that those votes
exceeded the margin of victory in the respective elections. Id.

               For those reasons, the outcome in this case must necessarily follow the outcome in
the Stuart case, which we decided earlier this year. We quote from it as follows:

               In Forbes v. Bell, 816 S.W.2d 716 (Tenn.1991), our Supreme Court discussed at
               length the procedures for having an election set aside pursuant to Tenn. Code Ann.
               § 2-17-101, et seq. The Forbes Court began by observing that there are two grounds
               upon which an election contest can be based. The first ground involves a claim that
               the election was valid, but that the contestant, rather than the contestee, would be the
               winner if the outcome was properly determined. Id. at 719. If the contestant is
               successful in court, the proper relief in this type of case is a judgment declaring the
               contestant the winner. The second ground is a claim that the election was null and


                                                  -3-
void. Id. The proper remedy in this second situation, if the contestant is successful
in court, is to order a new election.

Plaintiff's complaint never states or even suggests that the election was valid and that
he would have been the winner had the outcome of the election been properly
determined. Instead, the entire complaint focuses on Plaintiff's allegations that the
election should be set aside and the Trial Court should order a new election. Thus,
we are dealing only with the second ground for contesting an election discussed
above.

In Forbes, the Court stated:

With respect to election contests seeking to have an election declared invalid, this
Court has stated:

        Tennessee law empowers a court to void an election on two alternative, but
        closely related bases. First, "upon a sufficient quantum of proof that fraud or
        illegality so permeated the election as to render it incurably uncertain, even
        though it can not be shown to a mathematical certainty that the result might
        have been different." Emery v. Robertson County Election Comm'n, 586 S.W
        .2d 103, 109 (Tenn. 1979); see also State ex rel Davis v. Kivett, 180 Tenn
        598, 177 S.W.2d 551 (1944); Ingram v. Burnette, 204 Tenn. 149, 316
        S.W.2d 31 (1958). Secondly, where some ballots are found to be illegal,
        [and] the number of illegal votes cast is equal to, or exceeds the margin by
        which the certified candidate won. Emery v. Robertson County Election
        Comm'n, supra; Hilliard v. Park, 212 Tenn. 588, 370 S.W.2d 829 (1963).

Millar v. Thomas, 657 S.W.2d 750, 751 (Tenn. 1983).

First addressing Forbes's claim that the election should be declared void because of
election irregularities that resulted in a number of allegedly illegal votes, we hold that
she has failed to state a claim for the same reason that she failed to state a claim that
she should be declared the winner of the election. The omission of a statement
setting out the margin of Bell's victory precludes a grant of relief on this ground.
Although requirements for declaring an election void based upon allegations of
illegal voting are less stringent than are the requirements for declaring a contestant
the victor, Blackwood v. Hollingsworth, supra, 260 S.W.2d at 166, those allegations
must still be specific enough to establish that absent the allegedly illegal votes, the
result of the election would have been different.

In cases in which the contestant seeks to have the election declared void, the
prescribed methodology is for the court to consider all of the illegal votes as having
been voted one way (against the contestee) and then to ascertain whether the results


                                   -4-
of the election would thereby have been changed. Ingram v. Burnette, 204 Tenn.
149, 316 S.W.2d 31, 32 (1958); see also Jared v. Fitzgerald, 183 Tenn. 682, 195
S.W.2d 1 (1946). But even if we were to assume in this case that all of the allegedly
illegal votes were cast for Bell, there is no basis in Forbes's complaint or amended
complaint upon which to say that the deduction of this number of votes from Bell's
total would have produced a different result or rendered the outcome in doubt.
Hence, we must hold as to this basis for contest that Forbes's pleadings have failed
to state a claim for which relief can be granted.

This ruling leaves Forbes with only one remaining avenue for relief, based on a claim
that the election should be invalidated because it was so permeated with fraud and
illegality that it cannot be said to fairly reflect the will of the voters. As to this
ground, it is not necessarily fatal that the complaint does not specifically set out a
sufficient number of illegal votes to change the result of the election or to make the
result mathematically uncertain. Southall v. Billings, supra, 375 S.W.2d at 849. To
void an election on this basis, however, the alleged wrong must be so gross and
palpable a failure of the opportunity for a free and equal expression of the popular
will, that the courts cannot permit the election to stand. Barry v. Lauck, 45 Tenn. 588
(1868). Honest mistakes or mere omissions, or irregularity in directory matters--even
though gross--if not fraudulent, will not void an election unless they affect the result
or at least render it uncertain. Summitt v. Russell, 199 Tenn. 174, 285 S.W.2d 137,
141 (Tenn. 1955).

Most election contests brought on this theory are based on claims of fraud or
conspiracy, but the cases do recognize that statutory violations alone may be
sufficient to render an election void. In reviewing a complaint that does no more
than allege statutory violations, however, the focus of the court's inquiry must be kept
in mind--that is, whether the violations are so serious as to thwart the will of the
community upon a particular question. Browning v. Gray, 137 Tenn. 70, 191 S.W.
525, 526 (Tenn. 1916) (citing Barry v. Lauck, supra, 45 Tenn. at 593). Toward that
end, the Browning court quoted Barry v. Lauck, as follows:

       "... Whatever statutory provisions are essential to the attainment of this end,
       are obviously indispensable; and whatever precautions prescribed by statute
       against mistake or fraud are of such a nature that their omission in the
       particular instance has resulted in a fraud upon the electors, or has rendered
       the result of the election incurably uncertain, or the future omission of which,
       in the future, if permitted, must necessarily prove avenues of fraud, tend to
       prevent a fair exercise of the franchise, or to render elections insecure and
       uncertain, must be held to be a matter of substance, and essential to the
       validity of the proceeding.

Browning, 137 Tenn. at 73, 191 S.W. 525.


                                  -5-
It follows as a corollary that technical non-conformity with election statutes will not
necessarily void an election, as "such strictness would lead to defeat rather than
uphold, popular election, and can not be maintained." McCraw v. Harralson, 44
Tenn. 34 (1867). Invalidating an election solely on the basis of technical omissions,
much like failing "to cross a 't' or dot an 'I'," would effectively disenfranchise voters.
Foust v. May, 660 S.W.2d 487, 490 (Tenn. 1983).

Forbes, 816 S.W.2d at 719-21.

The contestant in Forbes alleged election voting irregularities in both Williamson
and Hickman County. The allegations with regard to Hickman County were more
substantial and included, inter alia: (1) the improper utilization of paper ballots in
conjunction with voting machines when the voting machines were not out of order;
(2) paper ballots at one precinct being cast in violation of the statute rendering all 153
ballots "illegal"; (3) allowing ballot boxes to be unlocked in violation of Tenn.Code
Ann. § 2-7-109; (4) voters using paper ballots not being provided private voting
compartments as required by relevant statutes; (5) voters using paper ballots turning
in the ballots to election officials, as opposed to depositing them into a locked box;
and (6) lines of voters were allowed to accumulate at one precinct because the
election officials did not strictly enforce the "time limits for voters to use the voting
machines thereby causing registered voters to leave the voting place without voting
after a wait of at least one and a half to two hours." Id. at 722-23. The Supreme
Court concluded that these allegations failed to state a claim upon which relief could
be granted to have the election set aside on the basis that it was so permeated with
fraud and illegality that it could not be said to fairly reflect the will of the voters.

The allegations of illegality in the present case are certainly no more serious than
those at issue in Forbes which were found by the Supreme Court to be insufficient
as a matter of law to set aside the election on the basis that the election was
permeated with irregularities. We conclude, as did the Court in Forbes and the Trial
Court in this case, that the allegations of misconduct on the part of election officials
were insufficient to taint the election. Id. at 723. Thus, of the two bases upon which
Plaintiff seeks to have this election declared invalid, the Trial Court correctly held
that Plaintiff fails to state a claim upon which relief can be granted as to the first
basis, that illegality so permeated this election "that it cannot be said to fairly reflect
the will of the voters." Id. at 720.

This, however, does not end our inquiry. According to Forbes, a second basis upon
which a contestant can have an election held invalid is "where some ballots are found
to be illegal, [and] the number of illegal votes cast is equal to, or exceeds the margin
by which the certified candidate won." Forbes, 816 S.W.2d at 720 (quoting Miller
v. Thomas, 657 S.W.2d 750, 751 (Tenn. 1983)). See also Emery v. Robertson County
Election Commission, 586 S.W.2d 103, 108-09 (Tenn. 1979)("The reported decisions


                                   -6-
                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.").

                Plaintiff's complaint is replete with allegations that many votes were illegal, why
                those votes were illegal, and that the number of those claimed illegal votes exceeds
                the margin by which defendant Layton won the election. In short, Plaintiff's
                complaint alleges that there are one hundred twenty plus illegal votes. Unlike the
                plaintiff in Forbes, Plaintiff's complaint did include a statement setting out the 119
                vote margin of victory, and further included an allegation that the number of claimed
                illegal votes was sufficient so that the deduction of those votes from Layton's total
                "would have produced a different result or rendered the outcome in doubt." Id. at
                720. It is not fatal to Plaintiff's complaint at this motion to dismiss stage that rather
                than stating a specific number of claimed illegal votes, Plaintiff instead alleges that
                the number of illegal votes exceeds the 119 vote margin of victory. Plaintiff's
                complaint, liberally construed, alleges that the number of claimed illegal votes is at
                least 120. Taking these factual allegations as true, which we must at this stage of the
                proceedings, Plaintiff's complaint does state a cause of action upon which relief can
                be granted on this second basis that the number of claimed illegal votes cast is 120
                or more. Therefore, we vacate the Trial Court's dismissal of this action but only as
                to this sole basis. In so doing, we express absolutely no opinion on the merits of
                Plaintiff's case. On remand the Trial Court must determine whether any votes cast
                are illegal for the reasons claimed by Plaintiff and, if so, whether those votes cast that
                are determined to be illegal are equal to or exceed the margin of victory of 119 votes.

                Conclusion

                The judgment of the Trial Court is affirmed in part and vacated in part, and this cause
                is remanded to the Trial Court for further proceedings consistent with this Opinion
                and for collection of the costs below. Costs on appeal are taxed one-half to the
                Appellant, David A. Stuart, and his surety, and one-half to the Appellee, Anderson
                County Election Commission.

Stuart, at pp. 5-8.

                 In this case, the allegations of misconduct on the part of election officials, taken as
true, are insufficient to show that the election was “permeated with fraud or illegality” such that it
should be declared void, and plaintiff’s Complaint fails to state a claim with regard to this ground
for relief. The allegation regarding illegal votes in excess of the margin of victory, taking this
allegation as true, does state a claim at this juncture of the case.



                                                   -7-
                We therefore remand to the Trial Court the issue of determining whether illegal votes
were cast, if any, and determine the outcome as Stuart dictated.

                We affirm the Trial Court’s Judgment in part and vacate in part, and remand for
further proceedings consistent with this Opinion. The cost of the appeal is assessed one-half to the
plaintiff, Joseph Lee, and one-half to the Anderson County Election Commission.




                                                      ______________________________
                                                      HERSCHEL PICKENS FRANKS, P.J.




                                                -8-
