Toliver v. Thompson , 17 P.3d 464 ( 2000 )

ORDER

T1 Original jurisdiction in this proceeding for prohibition and mandamus relief in an election contest is assumed by the Court. Okla. Const. Art. 7 § 4; McKye v. State Election Bd. of State of Oklahoma, 1995 OK 15 ¶ 4, 890 P.2d 954.

12 A recount of votes cast in an election may occur when the ballots have been preserved in the manner prescribed by law. 26 0.8.1991 § 8-112. When the ballots have not been preserved in this manner "then no recount shall be conducted". Id. During the course of the recount proceeding the District Court determined that the ballots in this election were not preserved because spoiled ballots were mixed in with those legally cast. No recount is allowed by § 8-112 in this cireumstance.

13 A petition alleging irregularities in an election may be based upon an allegation "that it is impossible to determine with mathematical certainty which candidate is entitled ... to be issued a certificate of election...." 26 O.S.1991 § 8-120. Such an allegation may be supported with evidence showing that illegal votes of a sufficient number were cast and counted as part of the election. Hembree v. City of Stilwell, 1979 OK 109, 597 P.2d 1218, 1220-1221. However, the allegation herein is not that improper votes were cast in the election as first returned, but that they were cast in a recount. Because courts indulge every presumption in favor of the validity of an election, the challenger herein was required to show that the spoiled ballots were actually counted in the election. See Jackson v. Maley, 1991 OK 7, 806 P.2d 610, where we stated the presumption and then later noted that the evidence failed to show therein that spoiled ballots were counted as valid votes at the election. Id. 806 P.2d at 615, 616.

14 In Andrews v. State ex rel. Eskew, 1980 OK 146, 618 P.2d 898, we made the following observation:

As the trier of fact in the recount hearing held that ballots had not been properly preserved, a recount could not be held, and thus the official returns of the election results must prevail. Neither the statutes existing at the time of the Looney case, nor at the time of the controversy before us, provide for a new election based solely upon the ground that the ballots had not been properly preserved.

Andrews, 1980 OK 146, ¶ 7, 618 P.2d at 401, citing, Looney v. County Election Board of Seminole County, 1980 OK 379, 291 P. 554.

The challenger herein failed to show that the actual votes counted in the election were tainted with irregularity, and similarly failed to show a statutory right to a new election based upon a failure to preserve the ballots. The judiciary in this State does not create equitable remedies for challenging elections in District Courts for claims based solely upon political rights. Macy v. Oklahoma City School Dist. No. 89, 1998 OK 58, ¶ 17, 961 P.2d 804, 808.

15 Let a writ issue prohibiting the enforcement of the respondent judge's order of December 11, 2000, in Creek County case No. MS-2000-658, In re Petition Alleging Irregularities for the Office of Sheriff of Creek County, General Election Dated November 7, 2000; Larry Fugate, Petitioner. The District Court shall proceed with certification of the election results and any other appropriate proceedings consistent with this order.

T6 DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 20TH DAY OF DECEMBER 2000.

17 SUMMERS, C.J., HARGRAVE, V.C.J., HODGES, LAVENDER, KAUGER, WATT, BOUDREAU, and WINCHESTER, JJ., concur. ¶ 8 OPALA, J., Dissents.