
    William H. “Billy” SCOGGINS, Plaintiff-Appellant, v. Cecil JONES; James H. Brown, Secretary of State; Jerry Fowler, Commissioner of Elections et al., Defendants-Appellees.
    No. 16229-CA.
    Court of Appeal of Louisiana, Second Circuit.
    Jan. 6, 1984.
    
      Hamilton & Carroll by Donald K. Carroll, Oak Grove, for plaintiff-appellant.
    James D. Sparks, Jr., Monroe, Charles L. Little, III, Oak Grove, for defendants-ap-pellees.
    Before PRICE, HALL, MARVIN, FRED W. JONES and SEXTON, JJ.
   FRED W. JONES, Jr., Judge.

In this appeal from a district court judgment involving an election contest, plaintiff [who lost a police jury seat by 24 votes out of 790 votes cast] contends the trial judge erred in rejecting his demand to nullify the election after it was shown that 25 illegal votes were cast.

For the reasons hereinafter explained, we affirm.

According to the evidence presented at the trial, police jury districts in West Carroll Parish generally cut across ward lines. As a consequence, those who vote at a given precinct are usually [depending upon their place of residence] eligible to vote in different police jury districts. Proper voting is supposed to be accomplished by a commissioner handing the voter a piece of paper showing his police jury district after the voter has signed the polling list. The paper designating the police jury district where the voter resides is to be handed the commissioner operating the voting machine. The latter commissioner is then to operate a lever which permits the voter to vote for the police jury candidate only in the proper district.

The record evidence further revealed that the election district for District 4 in West Carroll Parish is composed of seven precincts, including the two which are the subject of this litigation — two and three. Each precinct had two voting machines. Depending upon their residence, voters in these two precincts were eligible to vote either for the police jury candidate in District Four or in District Five.

Election commissioners from the two described precincts testified that, at the police jury runoff election held on November 19, 1983, for the District 4 position between plaintiff Scoggins and defendant Jones, the lever prohibiting District Five residents from voting in the District Four police jury election was not operated as prescribed during the first few hours because of their confusion — due to District Five not having a police jury election on that date. It was only after a voter called this to their attention around 9:00 A.M. that they thereafter properly used the described lever.

The Registrar of Voters stated that on the date in question in these two precincts 25 more people voted on the machines in the Ward 4 police jury election than signed the poll list. Fourteen of those were in Precinct 2 and eleven in Precinct 3. Out of a total of 790 votes cast in all the District 4 precincts, Jones won over Scoggins by 24 votes.

Plaintiff argues that, since the 25 illegal votes exceeded Jones’ 24 vote margin of victory, the election should be voided and a new police jury election scheduled for District 4. The trial judge ruled to the contrary and we agree with him.

In Moreau v. Tonry, 339 So.2d 3 (La.1976), it was found that 315 more votes were cast on voting machines than signatures on the precinct registers — out of a total of almost 100,000 votes cast. In addition, there were 43 forged signatures on the precinct register. Plaintiff asserted that if the number of illegal votes cast exceeded the difference between the candidates, the election should be nullified because its outcome could not be determined. In response, our supreme court ruled:

“... This has never been the law. If the candidate cannot prove he would have been elected ‘but for irregularities or fraud/ our jurisprudence refers to an alternative: if the court finds the proven frauds and irregularities are of such a serious nature that the voters have been deprived of the free expression of their will, the election will be nullified.
For this Court to render such a drastic order, there must be a clear showing that a course of fraudulent conduct was employed which effectually prevented the electors from expressing their will.’ Lewis v. Democratic Executive Committee, 232 La. 732, 95 So.2d 292 (1957).
“No case has been called to our attention (and we know of none) where an election has been upset because of serious and pervasive irregularities when the evidence falls short of proving that ‘but for’ the irregularities, the one contesting the election would have won.”

This rule in election cases was later followed in Kelly v. Village of Greenwood, 363 So.2d 887 (La.1978) and Huckaby v. Hunter, 427 So.2d 1 (La.App. 2d Cir.1983). •

The evidence in this case does not indicate that any fraud was perpetrated in the police jury election that resulted in illegal votes being cast. Further, neither candidate was responsible for any irregularity that might have caused District 5 residents to be permitted to vote in the District 4 police jury election. Most significant, it was not shown nor was there any inference that any of the 25 votes above the number shown on the polling lists were cast for the defendant Jones rather than plaintiff Scog-gins.

In summary, we agree with the trial judge that plaintiff Scoggins failed to discharge his burden of proof that, but for the asserted illegal votes, he would have won the police jury election.

In view of this holding, we pretermit the necessity of considering other issues raised by defendant Jones, particularly with reference to various exceptions filed by him which were overruled and the motion filed in this court, 442 So.2d 1202.

For these reasons, we affirm the judgment of the district court dismissing plaintiff Scoggins’ suit, with costs of appeal assessed to plaintiff-appellant.

HALL, J., concurs and assigns written reasons.

MARVIN and SEXTON, JJ., dissent and assign written reasons.

HALL, Judge,

concurring.

I concur in the result. The plaintiff failed to prove that except for substantial irregularities or error he would have been elected, LSA-R.S. 18:1401 B., or that it is impossible to determine the result of the election, LSA-R.S. 18:1432 A.(l), or that the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, LSA-R.S. 18:1432 A.(3).

The evidence establishes that at least 25 voters who were not residents of District 4 voted in the District 4 police juror election. The election officials allowed 73 voters who were not residents of District 4 to enter voting machines which had not been adjusted so as to preclude their voting in the District 4 election. Whether any more than 25 of these voters voted in the District 4 election is speculative and is not established by the evidence.

With 25 unqualified voters voting in the election, all 25 would have had to have voted for the defendant in order to change the result. The evidence does not establish for whom any of the unqualified voters voted, but it is virtually certain that defendant did not receive the votes of all 25 in this close election. Although it is mathematically possible that the number of unqualified voters who were allowed to vote was sufficient to change the result, it is factually highly improbable.

Accordingly, the plaintiff failed to prove by a preponderance of the evidence that, except for the votes cast by the unqualified electors, he would have been elected, or that it is impossible to determine the result of the election, or that the number of unqualified voters who were allowed to vote was sufficient to change the result.

The primary reason for expressing these concurring reasons is that I do not fully agree with the proposition that, in an election contest based on LSA-R.S. 18:1432, the plaintiff must prove that, but for the alleged illegal votes, he would have won the election; nor do I fully agree with the significance placed on the failure to show for whom the illegal votes were cast. The “but for” test strictly applied makes mandatory an inquiry into how certain voters voted which runs into the teeth of the secret ballot required and guaranteed by Article XI, § 2 of the Louisiana Constitution. Where the grounds for the contest are the enumerated statutory grounds set forth in § 1432, the plaintiff’s burden should be to prove by a preponderance of the evidence that it is impossible to determine the results, or that the number of qualified voters who were denied the right to vote or the number of unqualified voters who were allowed to vote, more probably than not, was sufficient to change the result. .

In this case, it is more probable than not that the 25 votes by unqualified voters had no effect on the result of the election, which defendant won by a margin of 24 votes. The number of unqualified votes, viewed in terms of realistic probabilities, was not sufficient to have changed the result.

MARVIN, Judge,

dissenting.

In this election contest reduced to its simplest facts, the losing candidate alleged and proved that at least 25 unqualified voters were allowed to vote in the election which he lost by only 24 votes.

LRS 18:1432(A)(3), in my opinion, should be literally applied to order a new election for the office in question where

“... the number of unqualified voters ... [is] sufficient to change the result of the election if they had not been allowed to vote.”

The number of unqualified voters (at least 25 and perhaps as many as 73) was sufficient to change the result where the winning margin is less than 25 votes.

I cannot conceive that the Legislature, by this language adopted in 1980, meant to imply that the losing candidate must additionally prove how the unqualified voters actually voted. The statute speaks only of the number of unqualified voters who voted, not how they voted. This unconditional statutory expression should prevail over pronouncements of cases which did not squarely consider the issue, whether before or after the 1980 legislation.

I respectfully dissent from the majority’s holding that the losing candidate must show but for those unqualified votes he would have won the election.

SEXTON, Judge,

dissenting.

I respectfully dissent.

In my view, the election code abolished Louisiana’s previously existing “but for” rule in election cases. Specifically, LSA-R.S. 18:1432(A)(3) states that to obtain a new election the plaintiff must only show that “the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote.” I believe that the plaintiff discharged this burden by proving that at least 25 people voted in this election who were unqualified and by proving that the margin of victory was 24 votes.

I agree that it is extremely unlikely that the result would have been changed, even if all 73 of the unqualified voters who had an opportunity to vote did indeed vote. However, in my view, the statute is clear and unambiguous and plaintiff has discharged his burden thereunder.  