
    James A. MOREAU v. Richard A. TONRY, the First Congressional District Democratic Executive Committee and Honorable Paul J. Hardy, Secretary of State of Louisiana.
    No. 8222.
    Court of Appeal of Louisiana, Fourth Circuit.
    Oct. 21, 1976.
    Writs Granted Oct. 21,1976.
    Luke A. Petrovich, Buras, Sidney W. Pro-vensal, Jr., Gibson Tucker, Jr., Jerald N. Andry and Gilbert V. Andry, III, New Orleans, for plaintiff-appellant.
    Martzell & Montero, John R. Martzell, New Orleans, Thomas M. McBride, III, Chalmette, for defendant-appellee-cross appellant, Richard A. Tonry.
    Before SAMUEL, REDMANN, LEM-MON, GULOTTA, STOULIG, BOUTALL, SCHOTT, MORIAL and BEER, JJ.
   GULOTTA, Judge.

In this Congressional second primary election contest, James Moreau claims 1) that elimination of the fraudulent and illegal votes cast for his opponent, Richard Tonry, would result in Moreau’s receiving a majority of the legal votes cast, thereby entitling him to be certified as the Democratic nominee; or, alternatively, 2) that fraud and illegality were so widespread and systematic that the results of the election are unreliable and a new election should be ordered.

It is Moreau’s contention that fraudulent votes, well in excess of Tonry’s 184-vote majority tabulated by the Clerks of Court, were cast in voting precincts controlled by Tonry commissioners and supporters and that the result of the election would be changed if those fraudulent votes were eliminated.

According to Moreau, in 15 voting precincts in St. Bernard Parish, 616 more votes were cast on the machines than the total number of persons listed on the precinct registers as having voted; and, the names of persons who did not appear at the polling places to vote were entered on poll lists, and votes in a corresponding number were voted on machines in those precincts.

Moreau claims that in the suspect precincts, and particularly three of those precincts, the names of persons who had not appeared at the precinct to vote were placed on the poll lists, were voted on the machines, and no signatures were entered on the precinct registers; further, that persons’ names were entered on the poll lists and a corresponding number of votes were cast on the machines when, in fact, the persons named on the poll lists were not registered in that precinct; also, that persons’ names were entered twice on the poll lists and votes were cast in corresponding numbers. He claims that 146 forgeries were made in the precinct registers, and a corresponding number of votes were cast on the machines. These forgeries, Moreau contends, are in addition to the 616 fraudulent votes cast. He claims, further, that the names of three deceased persons were forged and votes cast for those deceased persons. According to Moreau, when these fraudulent votes are eliminated, he, as recipient of the majority of the legal votes cast, is entitled to be declared the Democratic nominee. Alternatively, he contends that if the proven frauds and irregularities are of such a “serious nature” as to deprive the voters of the free expression of their will, the election should be set aside and a new election ordered.

In dismissing Moreau’s suit, the trial judge concluded that 74 illegal or fraudulent votes had been cast in favor of Tonry; and, after eliminating and deducting those votes from Tonry’s total, he declared Tonry the Democratic nominee. In oral reasons for judgment, the trial judge concluded that 51 forgeries were proved from the testimony of Gilbert J. Fortier, Jr., a handwriting expert. He further concluded that in Ward 3, Precinct 6 of St. Bernard Parish, all five commissioners were Tonry supporters who had invoked the Fifth Amendment of the United States Constitution and refused to testify concerning the practices in that precinct during the election conducted on October 2, 1976. Based on a showing that 23 votes were cast on the voting machines in excess of the number of signatures in that precinct register, the judge isolated those excess votes and purged them from the Tonry total in that precinct. Any additional claims of irregularity, illegality or fraudulent voting were rejected by the trial judge. He further rejected Moreau’s alternative plea to set aside the election.

While we are in agreement with the conclusion reached by the trial judge that a number of illegal votes were cast, the record discloses a different total of votes which can be identified. Our consideration of the testimony leads us to conclude that in one precinct (Ward 3, Precinct 6) 41 forged votes were cast according to the handwriting expert. Of those 41, three were forgeries of deceased persons who were voted in St. Bernard Parish. In addition, one voter who appeared at the polls testified that a Tonry commissioner entered the voting machine with him, and the commissioner cast a vote for Tonry when the voter did not desire to do so. Further, in another precinct, one witness testified that he cast a vote and signed the register on behalf of his wife who did not appear at the precinct. These forged and thus illegal votes total 43.

We reject Moreau’s contention that because of irregularities in the 15 suspect precincts where a greater amount of votes were cast on the voting machines and names were placed on the poll lists in excess of the signatures on the precinct registers, those votes totalling 616 should be eliminated and deducted from the Tonry vote. It is clear that a tabulation of Michael M. Chauppette, the internal auditor for Plaquemines Parish, showed 616 more votes cast on the voting machines than signatures on the precinct registers in the 15 suspect precincts. According to Chauppette, examination of the names appearing on the poll lists in the particular precincts were checked against the precinct registers in those precincts, and where no corresponding signature appeared on the precinct register or no registration card was contained for that person in the precinct register, those names were totalled. Also, where a person’s name was listed twice on the poll list, these instances were noted.

Tonry contends that the authenticity of the discrepancies as they apparently appear on the tally sheets can be proved only by a comparison of the signatures on the poll lists with the precinct registers in each precinct, and that it is plaintiff’s burden to correlate the claimed fraudulent entries on the poll lists with the precinct registers showing that no corresponding signatures were entered on the precinct registers or that persons were not registered, notwithstanding that the precinct registers are available for inspection by the court. He further contends that it is not the court’s responsibility to ferret out this connecting evidence and to supply the proof to establish authenticity of plaintiff’s claim. We reject this argument.

In Dowling v. Orleans Parish Democratic Committee and O’Hara, 235 La. 62, 102 So.2d 755 (1958), the court stated that a contestant (seeking to be declared the nominee) must show that but for fraud and irregularity, he would have received a majority of the legal votes cast; or a contestant (seeking to set aside an election) must show that the illegalities and fraud were “of such a serious nature as to deprive the voters of the free expression of their will” requiring a nullity of the election. See also Lewis v. Democratic Executive Committee of Eunice, 232 La. 732, 95 So.2d 292 (1957).

It is clear that in certain precincts in St. Bernard Parish illegal votes were cast. These fraudulent practices cannot be condoned under any circumstances and must be ferreted out if we are to insure that the free and honest expression of the will of the electorate is reflected in the democratic process.

In three precincts alone, 315 more votes were cast on the machines than signatures entered on the precinct registers. However, these illegal votes cannot be identified and purged from the total vote received by Tonry since sufficient proof did not establish that all of the commissioners in those precincts were Tonry supporters or Tonry commissioners. Under the circumstances, no inference can be made that these illegal votes were cast for Tonry. See Dowling, supra. We cannot deduct the illegal votes from the Tonry total. We reject, therefore, Moreau’s claim that he is entitled to be declared the Democratic nominee.

We are quick to point out that no claim is made nor is it indicated that Tonry was a party to, participated in or condoned any of the proven illegal acts. It is not our intention to imply that our finding of illegal votes being cast reflects adversely on the character or reputation of either one of the two candidates.

Having so concluded, we now turn to a consideration of Moreau’s alternative plea that a new election should be called because of allegations of widespread and systematic fraud. The Louisiana Supreme Court, in Lewis, supra, indicated that where fraud or illegality existed to such an extent as to deprive the voters of the free expression of their will, the election will be set aside. The court stated:

“* * * [If] the alleged fraud and irregularities were so gross as to make it evident that the electors did not have an opportunity to freely express their will, plaintiff would state a cause of action for annulment of the entire election even though he might not be able to prove that he would have been nominated but for such frauds and irregularities. * * * ”

The primary thrust of contestant’s alternative claim centers primarily around four precincts in Wards 3 and 4 of St. Bernard Parish. As hereinbefore pointed out, the record clearly establishes in Ward 3, Precinct 6, that 42 fraudulent votes were cast. The Chauppette audit graphically points out that in Ward 4, Precinct 1, 114 more votes were cast on the voting machines and were entered in the poll lists than signatures on the precinct register. In that precinct, the machines registered (including absentee votes) a total vote of 1,163. Approximately 10% of the votes registered in that precinct were cast without signatures appearing on the precinct register. Likewise, in Ward 4, Precinct 2, 178 more votes were cast on the voting machines and were entered in the poll lists than signatures on the precinct register. In that precinct, the machines registered a total vote of 1,002. Approximately 18% of the votes registered in that precinct were cast without signatures appearing on the precinct register.

The discrepancies revealed by Chaup-pette’s audit include numbers of votes cast in excess of signatures on the precinct registers and votes cast in the names of persons for whom there were no registration cards in the precinct register, and, in some instances, duplicate names on the poll lists for which corresponding votes were cast.

While we are aware of (and take judicial notice of) the fact that voting machine totals and registration book totals are not always equal, common sense compels the conclusion that the discrepancies in the instant case cannot be categorized as coincidental or as “honest error”. We conclude that it is not reasonable for such discrepancies to exist — particularly in light of the proven instances of fraud, illegality and irregularity hereinabove discussed in some detail.

Although these illegal votes cannot be attributable to one candidate or the other, nevertheless, the extent of the discrepancies in the three suspect precincts totalling 315 votes, when considered in light of the proven incidents of fraud and forgery, cannot be included in the vote total. The number of illegal votes exceeds the 184-vote majority of Tonry.

This conclusion is further augmented by applying the same reasoning to the evidence adduced in behalf of Tonry by his able counsel to the effect that the same type of discrepancies existed in the 28th precinct of Ward 8 of Orleans Parish, where 559 votes were cast and the number of votes exceeded the number of signatories to the precinct register by 116 — a percentage of approximately 20%.

Illegalities such as occurred in Ward 3, Precinct 6 and in Ward 4, Precincts 1 and 2, where votes were cast in the names of persons who in some cases were not even registered, or whose names were not signed to the precinct register, or where duplications on poll lists occurred, are of such serious nature that these practices will not be condoned or tolerated under any circumstances. We, therefore, conclude that the practices hereinabove described were just as effective in preventing the voters from expressing their will as if they had been restrained from such expression, in view of our finding that the total of the votes cast is inaccurate since it includes a sufficient number of illegal votes as to render the final outcome doubtful.

As the Supreme Court stated in Dowling and Lewis, where the illegalities in an election are of such a “serious nature” as to deprive the voters of the free expression of their will, the election will be set aside and nullified. The illegal practices were of such serious nature in the instant case.

Accordingly, the judgment of the trial court is annulled and set aside. It is further ordered and decreed that the Democratic 2nd Primary Election for Representative in Congress for the 1st Congressional District held on October 2, 1976, is annulled, and the certification of the Democratic nominee resulting therefrom is vacated and set aside.

ANNULLED AND SET ASIDE.

REDMANN and BOUTALL, JJ., concurs with written reasons.

SCHOTT, J., concurs with additional reasons.

MORIAL, J., specially concurs for the reasons assigned by REDMANN, J.

REDMANN, Judge

(concurring).

Few candidates indeed could muster the forces that mastered the foulness of this election. A simple tallying of signatures on precinct register cards to compare with votes on voting machines is, however, within the reach of a reasonably knowledgeable candidate. I would therefore prefer to annul this apparent 184-vote victory because of the admitted 616 votes for which there are no voters’ signatures in the precinct registers. In future election contests, candidates (and their commissioners) should know that a vote on the machine without a voter’s signature in the precinct register (or other lawful support) will not be allowed to decide an election. (See dissent, 288 So.2d 686, 688-689, in Garrison v. Connick, La. App. 4 Cir. 1974, 288 So.2d 681, reversed, La., 291 So.2d 778.)

BOUTALL, Judge

(concurring).

I concur with the result of the majority opinion herein and I am in substantial agreement with the thoughts expressed therein. However, as I have stated in my dissent in the case of Garrison v. Connick, 288 So.2d 681 at page 686, I cannot agree that mere failure of a voter to sign the precinct register is sufficient ground of itself to consider the nullity of an election, to which I add that such a vote should not be imputed against the victor as an additional penalty to an irregular vote, but the circumstances of this case are such as to require a conclusion that the large numbers of unsigned registration cards, when considered with the other evidence presented, is persuasive to a conclusion that the result of this election was based upon the types of irregularities denounced by the statute. L.R.S. 18:364(B). Of the fifteen precincts complained of in the petition, some four were used in argument as particular target precincts, and in those precincts, the largest amount of irregularities occurred. My own examination of the evidence in those four precincts convinces me that there were at least 259 irregular and fraudulent votes cast therein. I particularly rely upon the forged signatures of voters and the large amount of voters for whom no registration card appears. Accordingly I ascribe to the majority opinion.

However, having reached the conclusion that the result of the election should be annulled, I find, and I suppose that the majority of this court has some difficulty, that because of the time frame involved in this particular election process, there is insufficient time to order that a new primary election be held for the nomination of the Democratic Candidate. Under the provisions of L.R.S. 18:362, L.R.S. 18:1072, and the holdings of the cases of Downs v. Pharis, 240 La. 580, 124 So.2d 553, and Plessala v. Landry, La.App., 244 So.2d 298, there is ample authority for this court to have declared that the issue before it was moot, because no effective remedy can be offered at this late date by way of a judicial declaration ordering a new election. The result therefore was that the statutory provisions provided for the name of one of the candidates to be declared the nominee and placed upon the ballot in time for the general election. The order of the Louisiana Supreme Court dated October 13, 1976 in this case delayed absentee voting in this election until further orders of that court. As I see it, this order has the effect of removing this case from the limitations imposed by the Downs case (this being a Supreme Court decision we are bound by its holding) and the statutory law. If the intention of that court was to remove the question of mootness in this case, then it appears to me that the Supreme Court should announce that Downs is overruled and make a clear delineation as to what the statutory procedure to be followed is in a case such as this, where the very holding of the general election is now cast in doubt by the inability of the prospective absentee voters to cast their ballots. Whether or not the former procedure was fair to a particular candidate, it at least was certain as to his being placed upon the ballot timely for the general election. Perhaps a legislative remedy is needed in such circumstances but the stay order has caused uncertainty at least in my mind. In any event, I presume that the provisions of L.R.S. 18:362 still apply to this case.

SCHOTT, Judge

(concurring with additional reasons):

In LaCaze v. Johnson, 310 So.2d 86 (La. 1974), the Supreme Court refused a writ where the trial court had nullified an election in which there was a difference of 44 votes between the two candidates out of a total of approximately 122,000 votes cast because of the malfunction of a single voting machine which failed to register 144 votes.

The instant case is analogous in that there was a difference between the two candidates of 184 votes and a breakdown of the human election apparatus in Ward 4, Precinct 2 of St. Bernard Parish, which resulted in 178 votes being cast for one candidate or the other over and above the number of signatures placed on the precinct register and in Ward 3, Precinct 6, where there were 41 forged signatures on the register and 23 votes cast in excess of signatures placed.

Ordinarily a minor discrepancy between the number of votes cast and the number of signatures would not provide a basis for nullifying an election because it is virtually impossible to eliminate human error from the election procedure. For that reason the figure of 616 developed by plaintiff as the overall difference among 15 precincts is not persuasive, especially when one considers how little the overage was in certain precincts. For instance, in Ward 1, Precinct 3, there were only 14 votes in excess of the 693 signatures, and in Ward 1, Precinct 4, only 10 in excess of the 734 signatures. However, the problem in Ward 4, Precinct 2, is quite different. There the 178 excessive votes constituted almost 20% of the total votes cast. It is inconceivable that a group of election commissioners could have permitted so many illegal votes to be cast by mistake. If nothing more, this constitutes a gross malfunction on the part of the commissioners, no less disruptive to the election than the malfunction of the machine in the LaCaze case.

The record indicates that the discrepancy in Ward 4, Precinct 2, is not merely the result of neglect but rather is the result of fraud. There are a number of names on the poll list which do not appear to identify with any of the registered voters in the precinct, and there are three signatures which are repeated indicating that these individuals were allowed to vote twice. When the commissioners were called as witnesses in the trial court four out of five refused to testify, invoking the protection of the Fifth Amendment of the Constitution of the United States, protecting one against self-incrimination. The fifth commissioner originally refused to testify on the same ground and then recanted, but his testimony is not worthy of belief on the critical point. He stated that the reason for the 178 excessive votes was the crowd which presented themselves for voting during half time and at the conclusion of a football game. Even if believable this explanation is not an excuse for such gross malfeasance in the performance of his duties.

As to the other four, their invocation of the Fifth Amendment as an excuse for refusing to testify in this civil case compels me to infer that wrong doing was committed by them. This is not to say that such wrong doing should be attributed to either candidate, but the circumstances demonstrate that it was not merely neglect which caused the illegal votes to be case but fraud on the part of these commissioners.

The trial judge deducted from Tonry’s total the 23 excessive votes found in Ward 3, Precinct 6, along with votes connected with 51 forged signatures, on the apparent basis that since the election commissioners in that precinct were called by Moreau their invocation of the Fifth Amendment afforded a basis for the conclusion that fraud was committed by the commissioners in Tonry’s behalf. I can not agree with this conclusion. I agree that there is an inference of fraud on the part of the commissioners who refused to testify but there is no evidence to show in whose behalf the fraud was committed. I would not deduct these votes from Tonry’s total.

On the other hand, it is clear that gross fraud was committed in Ward 3, Precinct 6, in the form of the 41 forged signatures being placed on the precinct register. In addition, these commissioners permitted three individuals to vote twice and one to vote three times, and three votes were cast in the names of deceased persons. There were 23 more votes put through the machine than signatures collected. While this discrepancy of 23 votes standing alone might ordinarily be explained by innocent human error, but under the circumstances of gross fraud prevailing in this precinct I would eliminate these 23 votes. When the 41 forgeries and the 23 illegal votes from Ward 3, Precinct 6, are added to the 178 illegal votes from Ward 4, Precinct 2, there is a sufficient number of votes missing from the total count so that either of the candidates could have been the winner.

I joined in the majority opinion and decree and concur in the result declaring the election null and void. 
      
      . See LSA-R.S. 18:1193(B).
     
      
      . Ward 3, Precinct 6, St. Bernard Parish; Ward 4, Precinct 1, St. Bernard Parish; and, Ward 4, Precinct 2, St. Bernard Parish.
     
      
      .The deceased persons are 1) Frances L. Hen-ritzy, 2) Leonard W. Miller, died November 1, 1974, and 3) Irene B. Strauch, died August 10, 1976.
     
      
      . Those precincts are as follows: Ward 1, Precinct 1, Precinct 3, Precinct 4; Ward 2, Precinct 1, Precinct 2, Precinct 5, Precinct 6; Ward 3, Precinct 1, Precinct 2, Precinct 3, Precinct 4, Precinct 6; Ward 4, Precinct 1, Precinct 2, Precinct 3.
     