Toliver v. Thompson , 72 O.B.A.J. 6 ( 2000 )

OPALA, J.,

dissenting.

1 Petitioner, the victorious candidate under the certified canvass, seeks this court's intervention to impose that vote count's force as the now-final and hence unassailable governmental decision. I recede from today's disposition that invalidates respondent's order directing another election to be held in the race for county sheriff between the petitioner and his general-election opponent (Fugate). My analysis, which markedly differs from that of the court, is set forth in Jackson v. Maley¹, where I state:

I cannot accede to the view that the relief of another election, afforded Smith below, should be set aside in this proceeding. Compelling legal reasons clearly militate against disturbing that decision. If, as in this case, (1) a timely and legally sufficient recount claim is pressed, (2) which is coupled with an alternative plea for another election, and (8) a recount cannot be had because of the government officials' failure to preserve the ballots in conformity to the statutory requirements, the mere impossibility of having a recount becomes the functional equivalent of an inconclusive tally, so that the outcome of the contest is one that may not be determined with mathematical certainty. This event alone triggers the petitioner's state-created due process rights which compel the granting of another election. The government's failure to account for the honesty of its initial count is a significant post-election irregularity which makes the outcome of the race incapable of being determined with mathematical accuracy and hence warrants another election.

12 Fugate had purchased from the government his statutory right to a recount. The government accepted his money but failed to deliver the goods. Because of official dereliction or misconduct, the recount could not be effected. Inasmuch as the government destroyed Fugate's legislatively conferred political right to test the integrity of the process by which he would otherwise stand defeated, it may not now take advantage of its own malfeasance to impose on Fugate its questionable count. That count remains clouded by the effectively purchased right of recount. The cloud so cast upon it may not be regarded as erased or removed by the government's failure to preserve the votes in disregard of the law's clearest command.

3 I would leave undisturbed the respondent's call for a new election.

1 . Jackson v. Maley, 1991 OK 7, 806 P.2d 610, 621-622 (Opala, C.J., dissenting).