Regina Morrison Newman v. Shelby County Election Commission

IN THE COURT OF APPEALS OF TENNESSEE
AT JACKSON
January 17, 2012 Session
REGINA MORRISON NEWMAN, ET AL. v. SHELBY COUNTY
ELECTION COMMISSION
Direct Appeal from the Chancery Court for Shelby County
No. CH10-1538 Arnold B. Goldin, Chancellor
No. W2011-00550-COA-R3-CV - Filed February 13, 2012
This is an election contest case brought pursuant to Tennessee Code Annotated Section §
2-17-101, et seq. Appellants, unsuccessful candidates for various offices in the August 5,
2010 Shelby County general election, filed suit against the Appellee Shelby County Election
Commission. Appellants aver that the election process was incurably flawed to the extent
that Appellants and the citizens of Shelby County were denied a free and equal election as
required by Article I, Section V of the Tennessee Constitution. The trial court granted an
involuntary dismissal, under Tennessee Rule of Civil Procedure 41.02(2), finding that
Appellants’ proof was insufficient to prove that the election was incurably uncertain. We
affirm.
Tenn. R. App. P. 3. Appeal as of Right; Judgment of the Chancery Court Affirmed.
J. S TEVEN S TAFFORD, J., delivered the opinion of the Court, in which A LAN E. H IGHERS, P.J.,
W.S.,and David R. Farmer, J., joined.
James G. Stranch, III and James G. Stranch, IV, Nashville, Tennessee, and David Cocke,
Memphis, TN for the appellants, Regina Morrison Newsom, Minerva Johnican, Venita Marie
Martin, Shep Wilbun, Corey Maclin, Randy L. Wade, Coleman Thompson, Ricky Dixon,
Sondra Becton, and Glenn Wright.
John L. Ryder, Pablo Adrian Varela, and Samuel J. Muldavin, Memphis, Tennessee, for the
appellee, Shelby County Election Commission.
OPINION
Regina Morrison Newman was an unsuccessful candidate for the office of County
Trustee during the general election held in Shelby County on August 5, 2010. According to
the record, Ms. Newman lost the election by 4,509 votes.1 Minerva Johnican was an
unsuccessful candidate for the office of Criminal Court Clerk; she lost that contest by 4,886
votes. Venita Marie Martin was a candidate for the office of Circuit Court Judge for
Division VIII in the August 5, 2010 election. Ms. Martin was unsuccessful, losing by 24,787
votes. Shep Wilbun was a candidate for the office of Juvenile Court Clerk and was
unsuccessful, losing by 12,462 votes. Corey Maclin was an unsuccessful candidate for the
Register of Deeds position; he lost the election by 27,720 votes. Randy Wade was a
candidate for Sheriff in the August 5 election and was unsuccessful, losing by 6,602 votes.
Ricky Dixon was a candidate for the office of Circuit Court Clerk; he lost by 17,431 votes.
Sondra Becton was an unsuccessful candidate for the office of Probate Court Clerk; she lost
by 6,519 votes. Glenn Wright (together with Ms. Newman, Ms. Johnican, Ms. Martin, Ms.
Becton and Messrs. Wilbun, Maclin, and Wade, “Plaintiffs,” or “Appellants”)2 was an
unsuccessful candidate for Criminal Court Judge for Division 3, losing by 1,516 votes.
Following the August 5, 2010 election, under Tennessee Law, the Shelby County
Election Commission (the “Commission,” or “Appellee”) had until August 26, 2010 to
certify the results of the election pursuant to Tennessee Code Annotated Section 2-8-113.3
Although the deadline for certification was not until August 26, 2010, the Commission
certified the election early on August 19, 2010. Tennessee Code Annotated Section 2-17-105
provides that a “complaint contesting an election under §2-17-101 shall be filed within five
(5) days after certification of the election.” On August 24, 2010, Appellants filed an
emergency petition for temporary restraining order, injunctive relief, and declaratory
judgment, contesting the August 5, 2010 election. An amended petition was filed on August
1
The margin of loss for each candidate is set out in the Tabulation of Votes Recorded for the State
and Federal Primary and County Election, which is part of our record.
2
Ricky Dixon, a named plaintiff in the trial court, has chosen not to appeal.
3
Tennessee Code Annotated Section 2-8-113 provides, in relevant part, as follows:
(a) On the fourth Thursday after a primary election, the state coordinator
of elections shall publicly calculate and compare the votes received by each
person and declare who has been nominated for office in the primary or
elected to the state executive committee. The candidates who receive the
highest number of votes shall be declared elected or nominated; provided,
that in order for any person to receive a party nomination by write-in
ballots, such person must receive a number of write-in votes equal to or
greater than five percent (5%) of the total number of registered voters of the
district. However, this section shall not apply where there are candidates
for the office involved listed on the official ballot.
-2-
25, 2010. The amended petition names the Commission, Shelby County Government, and
the winning candidates for each of the offices sought by each of the Appellants as
defendants.
The amended petition, which was filed pursuant to Tennessee Code Annotated Section
2-17-101 et seq., challenges the August 5, 2010 election asserting that the “election process
was incurably flawed to the extent that Plaintiffs and [the] citizens of Shelby County were
denied a free and equal election as required by Article I, Section V of the Tennessee
Constitution.” In their prayer for relief, Appellants requested the Chancery Court to declare
the August 5, 2010 election a nullity on two grounds: (1) “as a result of the current fraud,
illegality, and irregularities which have occurred so far during the early voting process;” and
(2) “as a result of the fraud, illegality, and substantial irregularities which have occurred
during the voting process and afterward.” In their petition, Appellants alleged numerous
irregularities in the August 5, 2010 election, including: (1) “vote swap,” where voters would
touch their candidate’s name on the electronic touch-screen, only to have another candidate’s
name appear; (2) incorrect “party identifiers,” where candidates in non-partisan races would
incorrectly be identified as Republicans or Democrats; (3) a malfunction where incorrect data
designated citizens who had voted in the May 2010 election as having early voted in the
August 2010 election and that, as a result, some 5,400 voters who arrived at the polls to vote
on August 5 were incorrectly told that they had already voted; (4) media coverage of the
arrest of two individuals for having allegedly voted twice in a 2006 election, which
Appellant’s asserted had a “chilling effect” on voters who, as a result of the malfunction
involving the uploading of incorrect data were incorrectly told that they had already voted;
(5) at the majority of voting locations, the voter tallies retrieved by Democratic poll watchers
were inconsistent with the voter tallies subsequently given by the Commission; (6)
inconsistent entries of provisional ballots in the GEMS audit log; (7) numerous improprieties
regarding the handling of poll tapes all in violation of Tennessee Code Annotated Section
2-8-108;4 (8) allegations that many voting machines were not sealed; (9) the existence of a
4
Tennessee Code Annotated Section 2-8-108 provides:
(a) The commission shall preserve all paper ballots for six (6) months after
the election to which they were cast or offered to be; cast and may then
dispose of them. During the period in which they are preserved, the
packages of ballots shall be kept securely locked and may be opened and
the ballots examined only on court order or under chapter 18 of this title.
(b) All other election documents such as applications for all ballots, spoiled
and rejected ballots, voter affidavits, records of assistance to voters, etc.,
shall be preserved by the county election commission for six (6) months or
(continued...)
-3-
“Ghost Race,” which could be used to manipulate the election results; and (10) that the
number of votes cast in the August 5, 2010 election exceeded the number of persons who
voted in the election.
Tennessee Code Annotated Section 2-17-106 requires the trial of an election contest
to be held “not less than fifteen (15) nor more than fifty (50) days from the day the complaint
is filed and not less than ten (10) days after the complaint is served on the defendant.” As
a result of this statutory requirement, the discovery schedule was compressed in this case.
In fact, the record reveals that some depositions were taken during the trial, which was held
on October 4, 6, and 7, 2010. Before the hearing, on October 1, 2010, the individual
defendants (i.e., the winning candidates) filed a motion to dismiss. After considering
memoranda of law and hearing oral arguments, and upon Appellants’ representation in open
court that the case was purely a “Prong II Emery” case (see discussion infra), the Chancellor
granted the motion of the individual defendants and dismissed them, along with Shelby
County Government, from the case, leaving the Commission as the sole
Defendant/Appellee.5 The issue of whether the individually named defendants were properly
dismissed is not before us. Furthermore, the Appellants have not contested their
4
(...continued)
longer if so ordered by a court or by the coordinator of elections. All
election documents pertaining to a federal election shall be preserved by the
county election commission for twenty-two (22) months.
5
Concerning which Emery Prong is at issue, the following discussion occurred at the hearing on the
motion to dismiss:
COURT: Since the allegation that you [Appellants] make is the Prong-two
Emery allegation. . . . I mean assuming that those allegations can be
proven, it seems that the relief would be that you’re asking for is a new
election.
MR. STRANCH [Appellants’ lawyer]: Correct.
* * *
COURT: All right. Well, I think that everyone—I think I can agree that
this case is being tried not on the individual races but on the basis of
Plaintiffs’ argument that the entire election should be declared null and
void as a result of fraud, illegality, and irregularities, which are alleged to
have occurred and that the case is going to either rise or fall on that
allegation.
-4-
representation in the trial court that they were proceeding only on Prong II of Emery, and that
Prong I arguments were, consequently, waived (see further discussion below).
At the conclusion of the Appellants’ proof at the October hearing, the Commission
moved for involuntary dismissal under Tennessee Rule of Civil Procedure 41.02(2).6 The
motion was granted in a bench ruling by the Chancellor on October 7, 2010. The
Commission was ordered to submit a proposed order, including findings of fact and
conclusions of law. This proposed order was forwarded to Appellants, who did not respond
for several weeks. Finally, in December 2010, the proposed order was submitted and the trial
court entered its findings of fact and conclusions of law on January 14, 2011. An additional
post-trial matter relating to the request for attorney’s fees by the individually named
defendants under Tennessee Code Annotated Section 2-17-115 was considered and denied.
A final order was entered on February 24, 2011. Appellants appeal, raising three issues for
review as stated in their brief:
1. Whether the trial court used an incorrect legal standard by
requiring Plaintiffs-Appellants to present evidence of intentional
misconduct to overturn the results of the election at issue in this
case.
2. Whether the trial court improperly declined to consider the
possibility that the voting irregularities identified by Plaintiffs-
Appellants rendered “incurably uncertain” the results of certain
selected races as opposed to the election generally.
3. Whether the trial court improperly required too high a
showing of a definitive causal link between the number of votes
6
Tennessee Rule of Civil Procedure 41.02(2) provides:
After the plaintiff in an action tried by the court without a jury has
completed the presentation of plaintiff's evidence, the defendant, without
waiving the right to offer evidence in the event the motion is not granted,
may move for dismissal on the ground that upon the facts and the law the
plaintiff has shown no right to relief. The court shall reserve ruling until all
parties alleging fault against any other party have presented their respective
proof-in-chief. The court as trier of the facts may then determine them and
render judgment against the plaintiff or may decline to render any judgment
until the close of all the evidence. If the court grants the motion for
involuntary dismissal, the court shall find the facts specially and shall state
separately its conclusion of law and direct the entry of the appropriate
judgment.
-5-
implicated by a particular election irregularity and the effect that
irregularity had on the certified results of the election.7
We first note that Appellate courts use the standard found in Tennessee Rule of
Appellate Procedure 13(d) “to review a trial court's disposition of a Tenn. R. Civ. P. 41.02(2)
motion because the trial court has used the same reasoning to dispose of the motion that it
would have used to make a final decision at the close of all the evidence.” Burton v. Warren
Farmers Co-op, 129 S.W.3d 513, 521 (Tenn. Ct. App. 2002). We review the trial court's
findings of fact de novo upon the record with a presumption of correctness, unless the
preponderance of the evidence is otherwise or unless the trial court has committed an error
of law affecting the outcome of the case. Id.
7
As a point of practice, we note that Tennessee Rule of Appellate Procedure 24(a) provides, in
relevant part, that:
The following papers filed in the trial court are excluded from the record:
(1) subpoenas or summonses for any witness or for any defendant when
there is an appearance for such defendant; (2) all papers relating to
discovery, including depositions, interrogatories and answers thereto,
reports of physical or mental examinations, requests to admit, and all
notices, motions or orders relating thereto; (3) any list from which jurors
are selected; and (4) trial briefs; and (5) minutes of opening and closing of
court. Any paper relating to discovery and offered in evidence for any
purpose shall be clearly identified and treated as an exhibit. No paper need
be included in the record more than once.
Id.
This record contains several volumes, many of which are
comprised of only discovery materials, including interrogatories, requests
for documents, and answers thereto. In addition, this record contains the
same papers numerous times. It is too often the case that an Appellant
includes all filings made in the trial court and every portion of the transcript
of the hearing (including arguments of counsel) in contravention of the
foregoing Rule of Appellate Procedure. The problem with inclusion of
extraneous filings that are clearly excluded from the appellate record is that
it places upon this Court a duty that falls to the Appellant—to prepare a
correct and complete record on appeal. Tenn. R. App. P. 24(b). In making
that record, the Appellant should adhere to the mandates contained in
Tennessee Rule of Appellant Procedure 24(a). This Court endeavors to file
its opinions in a timely manner; however, when placed in the position of
having to review volumes of extraneous, unnecessary, and irrelevant
filings, our goal is hindered and the interests of judicial economy are
stymied.
-6-
This matter was filed as an election contest. See Hatcher v. Chairman, Shelby County
Election Comm'n, 341 S.W.3d 258, 263 (Tenn. Ct. App. 2009) (pursuant to Tennessee Code
Annotated Section 2–17–105, an election contest is filed “ after the election”). This court has
succinctly summarized the grounds for an election contest:
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 void. Id. The
proper remedy in this second situation, if the contestant is
successful in court, is to order a new election.
Stuart v. Anderson County Election Comm'n, 237 S.W.3d 297, 303 (Tenn. Ct. App. 2007).
The first ground, i.e., “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,”
addresses counting votes. Id. To prevail on this ground, “an election contestant must
‘specifically point out each and every vote that was fraudulently or illegally cast on behalf
of the contestee and against [the contestant].’” Forbes, 816 S.W.2d at 719 (quoting Shoaf
v. Bringle, 241 S.W.2d 832, 833 (Tenn. 1951)). There is no allegation in this matter that
anyone cast an illegal vote, nor do the Appellants’ seek, as a form of relief, a declaration that
he or she is the winner of his or her specific contest. Rather, in the instant case, we are only
concerned with the second ground, i.e., that the election be declared null and void.
Under Tennessee law, a court has the power to void an election on either of two
grounds. First, “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 719–20 (citing Emery v. Robertson County Election Comm'n, 586 S.W.2d 103,
109 (Tenn. 1979)) [hereinafter referred to as Emery Prong I]. Secondly, “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.” Forbes, 816 S.W.2d at 719–20 (quoting Emery, 586 S.W.2d at 109)
[hereinafter referred to a Emery Prong II].
-7-
In explaining the two grounds for election contests, the Forbes Court relied upon the
case of Emery v. Robertson Co. Election Comm’n, 586 S.W.2d 103 (Tenn. 1979). The
Emery Court established a two-prong test. Emery Prong I, which is not triggered in this case
(see discussion above and infra), is a challenge to the individual, specific races conducted
during the election.8 Under Prong I, the plaintiff has the burden to prove that “the number
of illegal ballots cast equals or exceeds the difference between the two candidates receiving
the most votes.” Emery, 586 S.W.2d at 108. Mere speculation is not enough. Despite the
fact that the Appellants clearly proceeded at trial under only Prong II of Emery (even to the
point of dismissal of the individually named defendants who had won their respective races),
and have raised no appellate issues concerning the waiver of Prong I or dismissal of the
individual defendants, Appellants, nonetheless, present several arguments in their brief that
seem to trigger Prong I (i.e., argument concerning the actual numbers of votes cast and the
margin of loss). Specifically, the Appellants cite to Appellant Glenn Wright’s case. As
noted above, Mr. Wright lost the election for Criminal Court Judge for Division 3 by only
1,516 votes. Appellants’ brief seems to argue that the narrow margin of loss somehow bears
on the theory espoused at trial (i.e., Emery Prong II). As discussed above, the question of
whether the number of votes cast equals or exceeds the difference between the two
candidates who received the most votes is not an inquiry under Emery Prong II, only under
Prong I. Mr. Wright, along with the other Appellants, did not object at trial to the case
proceeding only under Prong II of Emery. Waters v. Farr, 291 S.W.3d 873, 918 (Tenn.
2009) (stating that issues not raised in the trial court are waived on appeal); Tenn. R. App.
P. 36(a) (“Nothing in this rule shall be construed as requiring relief be granted to a party
responsible for an error who failed to take whatever action was reasonably available to
prevent or nullify the harmful effect of an error.”). Having not objected below, neither Mr.
Wright, nor the other Appellants can be heard to complain on appeal.
Although Appellants’ Prong I arguments are waived, it is apparent that the question
of causality cannot be separated from the inquiry under either Emery Prong I or Prong II.
However, a Prong II attack requires a less stringent standard as the plaintiff need not show
specific numbers of votes. Emery Prong II, upon which the instant case turns, allows a
plaintiff to challenge an election contest by proving that “fraud or illegality so permeated the
conduct of the election as to render it incurably uncertain.” Emery, 586 S.W.2d at 109.
Thus, the grounds for voiding an election involve: (1) fraud and illegality rendering the
election uncertain or (2) enough illegal ballots having been cast to call the election into
doubt. Again, there is no allegation in this matter that anyone cast an illegal vote, so the
second ground for voiding the election is not met. Therefore, to void the August 5, 2010
8
At the outset of its ruling from the bench, the trial court re-iterated that “we’re not dealing with
single elections in this case based on the margin of victory between the candidates . . . but dealing with the
entire election.” There was no objection to this statement.
-8-
election, Appellants must show 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.” Forbes, 816 S.W.2d at 720. “Thus, whether there is proof of actual fraud only, or
violations of statutory safeguards only, or a combination of the two, the issue is whether or
not those acts, viewed cumulatively, compel the conclusion that the election did not express
the free and fair will of the qualified voters.” Emery, 586 S.W.2d at 109. Consequently, a
plaintiff must show a causal connection between the illegalities asserted and the uncertainty
of the election results.
In King v. Sevier County Election Comm'n, 282 S.W.3d 37, 46 (Tenn. Ct. App.
2008), this court noted that examples of cases that voided elections include Shoaf (alleging
“intimidation and dures[s]” at the polls, and a conspiracy between officials and candidate to
provide insufficient ballots in opponent's stronger precincts); State ex rel. Davis v. Kivett,
177 S.W.2d 551 (Tenn. 1944) (alleging a conspiracy to “steal the election” through
intimidation and the use of fraudulent votes); and Hollis v. State ex rel. Vaughan, 237
S.W.2d 952 (Tenn. 1951) (alleging a conspiracy to “steal the election” by the procurement
of “fictitious absentee ballots” and the printing of fraudulent ballots that omitted some
candidates' names). Thus, the level of fraud and illegality necessary to void an election is
steep. Election contests are about the manner and form of the election itself or the
qualifications of the winner to hold the office to which she or he has been elected. See
Hatcher v. Bell, 521 S.W.2d 799, 802 (Tenn.1974). There is no doubt that the August 5,
2010 election was not perfect, and that mistakes were made by the Commission; however,
mistakes, without evidence of fraud, illegality, or a causal connection between the mistakes
and the uncertainty of the election results, will not void an election under Prong II of Emery.
The vote of the people is the most significant step in the election process. See Snow v. City
of Memphis, 527 S.W.2d 55, 64 (Tenn. 1975) (“The final validating step by the people is the
most significant action in the entire [constitutional] amending process.”). Consequently,
“courts should be . . . reluctant to take the step of declaring an election invalid.” Forbes, 816
S.W.2d at 724. “[V]oiding an election is an extreme remedy.” King, 282 S.W.3d at 43. The
paramount question is whether there is evidence in this record that the election results did not
reflect the will of the electorate. No election is perfect, and honest mistakes sometimes occur.
See Ingram, 316 S.W.2d at 33. However, “[h]onest mistakes . . . will not void an election
unless they affect the result or at least render it uncertain.” Forbes, 816 S.W.2d at 720.
After reviewing the record, we agree with the trial court’s findings that there is a
complete lack of evidence on several grounds asserted by the Appellants in their amended
petition. Concerning the allegation that there were numerous incidents of “vote swap,” i.e.,
where voters would touch their candidate’s name on the electronic touch screen only to have
another candidate’s name appear, there was no evidence in the trial transcript to support this
allegation. In addition, the allegation that there were numerous instances where “party
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identifiers” incorrectly identified the candidates in non-partisan races as Republicans or
Democrats is unsupported in the record as no testimony or evidence was offered to support
the allegation.
Appellants also aver that a malfunction occurred where incorrect data indicated that
certain citizens had early voted, when they had not. Although a mistake did occur with the
electronic poll books (see below), Appellants assert that these voters, having been turned
away, did not attempt to vote and so were denied suffrage. In support of this allegation, the
Appellants proferred the testimony of Emmie Johnson, a poll worker at the Glenview
location. Ms. Johnson attempted to testify that there were several voters at that precinct who
were turned away on grounds that they had early voted, when they allegedly had not.
However, the trial court sustained the Commission’s hearsay objection, thus negating the
substantive portions of Ms. Johnson’s testimony. The Appellants do not appeal the trial
court’s evidentiary ruling on Ms. Johnson’s testimony. Despite the trial court’s ruling, the
Appellants did not offer the testimony of any citizen that was actually turned away from the
October 5 vote based upon incorrect information that the citizen had already exercised his
or her right by early voting. Moreover, there was no evidence concerning the actual number
of voters turned away based upon mistaken information about early voting.
The Appellants’ allegation that media coverage of the arrest of two individuals who
had attempted to vote twice in the 2006 election is also unsubstantiated in the record.
Specifically, there was no evidence to support a finding that any voter in the October 5
election was affected by the 2006 incident. Appellants presented no evidence to support their
allegation of inconsistent entries of provisional ballots in the GEMS audit log. Likewise,
there is no evidence in the record to support a finding that there was any “Ghost Race,”
which could have manipulated the October 5 results.
In addition, the Appellants averred that there were several voting machines that were
not properly sealed. Although the Commission concedes that there were, in fact, some
machines that were not sealed, the Appellants offered no testimony or evidence to suggest
that this fact was anything but human error. Specifically, Appellants offer no evidence to
support a finding that failure to seal all of the voting machines was the result of fraud or
illegality. Furthermore, Appellants provided no evidence that failure to seal all voting
machines resulted in any voter being denied either an opportunity to vote, or that this error
resulted in a loss of any votes cast.
Having discussed the lack of evidence on certain theories espoused by the Appellants,
we now turn to address the remaining allegations and the evidence that was, in fact,
presented. Julie Anne Kempf, a former King County, Washington Election Administrator,
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was tendered by Appellants as an expert in election procedure.9 Ms. Kempf testified, in
relevant part, that she had three main concerns with the manner in which the August 5
election was conducted by the Commission, namely:
1. The electronic poll books used for the election had the
incorrect voter history uploaded;
2. The logic and accuracy test performed by the Commission to
check the accuracy of the tabulation, was unacceptable as a
means for ensuring a fair and accurate tabulation of votes; and
3. The number of votes cast exceeded the number of persons
who voted.
However, Ms. Kempf further testified that she had discovered no intentional fraud, illegality,
or conspiracy on the part of the Commission to manipulate the election.
It is undisputed that the Commission used electronic poll books for the August 5,
2010 election. It is also undisputed that the poll books used on August 5 had the incorrect
history data uploaded. Specifically, the list of voters who were ineligible to vote because
they had voted early was incorrect because the May 2010 early voting data was incorrectly
loaded onto the electronic poll books instead of the early voting list for the August 5 election.
Dennis Boyce, a computer system analyst who manages the information system
department for the Commission, testified that he incorrectly loaded the early voting data;
however, he explained that he had not intentionally erred in so doing, nor did he have any
suspicion that he had been “set up” to make the mistake. In short, Mr. Boyce had no
9
No issue has been raised concerning either Ms. Kempf’s qualifications as an expert, or the trial
court’s allowing her testimony in this case. That being said, it is well settled that:
Expert opinions are not ordinarily conclusive in the sense that they must be
accepted as true on the subject of their testimony, but are generally
regarded as purely advisory in character; the [triers of fact] may place
whatever weight they choose upon such testimony and may reject it, if they
find that it is inconsistent with the facts in the case or otherwise
unreasonable.
Cocke Co. Bd. of Highway Comm'rs v. Newport Util. Bd., 690 S.W.2d 231, 235 (Tenn. 1985) (quoting
Am.Jur.2d Expert and Opinion Evidence § 138 (1967)); accord Gibson v. Ferguson, 562 S.W.2d 188,
189–90 (Tenn. 1976).
-11-
knowledge of any intention to keep anyone from the polls on August 5.
Mr. Albert Holmes, who has been employed by the Commission for approximately
seventeen years, testified that he learned of the error with the poll books when he performed
a routine logic and accuracy test on the morning of August 5, 2010, before the polls opened.
Mr. Holmes informed Mr. Boyce of the problem at approximately 7:04 a.m. on August 5.
Mr. Boyce testified that, within fifteen minutes, he discovered the precise cause of the
problem, which was a script error that erroneously identified May voters as early August
voters. After this discovery, the Commission immediately began to take remedial steps.
First, the Commission notified the polling officials at each precinct of the problem and
instructed the precinct workers to allow affected voters to cast “fail safe” ballots. Next, the
Commission set out to reprogram “each CF card [i.e., voter access card] in each EPB [i.e.,
electronic poll book] throughout Shelby County.” Mr. Holmes testified that he went to
several office supply stores to buy as many CF readers as he could in order to quickly affect
a remedy. However, after reprogramming the CF cards for sixty or sixty-five precincts, Mr.
Holmes testified that it became clear that reprogramming all of the affected CF cards could
not be done and that the use of the fail safe ballots was the most effective way to mitigate the
problem.
The record indicates that the accidental uploading of incorrect information resulted
in the erroneous identification of approximately 5,400 voters as having early voted.
However, as a result of the Commission’s remedial measures, supra, 2,025 of the 5,400
possibly affected voters were able to cast their ballots in the August 5 election. Although we
know from the record that 2,025 of the affected voters did, after the remedial measures, cast
their votes, Appellants offered no testimony or evidence that any of the other 3,375 affected
voters were actually denied suffrage. From the totality of the circumstances, we conclude
that the evidence does not preponderate against the trial court’s finding that the uploading
of incorrect data was the result of human error and did not rise to the level of fraud, illegality,
or uncertainty necessary to satisfy the second Emery prong. In short, the Appellants have
failed to show a causal link between this mistake and any uncertainty regarding the election
results.
Concerning Ms. Kempf’s allegation that the logic and accuracy test performed by the
Commission to check the accuracy of the tabulation was unacceptable as a means for
ensuring a fair and accurate tabulation of votes, the trial court specifically found that,
“[w]hile Ms. Kempf may have performed the test differently, such criticism does not render
Mr. Holmes’ method illegal or improper nor does it provide a sufficient basis to void the
August 5, 2010 election.” We agree. A difference in opinion as to the means of
accomplishing a task is not, ipso facto, proof that one method is superior. Without specific
testimony as to why Mr. Holmes’ method would result in illegal or improper results, this
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Court cannot conclude that the trial court’s finding was against the weight of the evidence.
Ms. Kempf’s allegation that the number of votes cast exceeds the number of voters
was countered by the deposition testimony of Shelby County Election Administrator Richard
Holden, which deposition was admitted into evidence. Mr. Holden explained that the
number of cards cast in the election does not indicate the number of voters because the
number of ballot pages is counted, not the number of voters. Specifically, military and
absentee ballots are anywhere from one to three pages; therefore, the number of cards will
not match the number of voters. Mr. Holden’s testimony was not disputed on this point.
From the record as a whole, we conclude that Appellants have failed to meet their
burden to show that “fraud or illegality so permeated the conduct of the election as to render
it incurably uncertain.” Emery, 586 S.W.2d at 109. Consequently, and for the foregoing
reasons, we affirm the order of the trial court. Costs of this appeal are assessed, jointly and
severally, to the Appellants, Regina Morrison Newman, Minerva Johnican, Venita Marie
Martin, Shep Wilbun, Corey Maclin, Randy Wade, Sondra Becton, Glenn Wright, and their
respective sureties.
_________________________________
J. STEVEN STAFFORD, JUDGE
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