“When an unsuccessful candidate seeks to invalidate an GRIFFIN V. N.C. STATE BD. OF ELECTIONS Hampson, J., dissenting election, the burden of proof is on him to show that he would have been successful had the irregularities not occurred.”
How later courts described this case
- “When an unsuccessful candidate seeks to invalidate an GRIFFIN V. N.C. STATE BD. OF ELECTIONS Hampson, J., dissenting election, the burden of proof is on him to show that he would have been successful had the irregularities not occurred.”
Written by the judges who cited it.
The opinion
Judge Greene
concurring in the result.
I fully concur with the holding of the majority that an unsuccessful candidate who seeks to invalidate an election has the burden of showing that he would have been successful in the absence of some proven irregularity. In re Clay, 45 N.C. App. at 570, 264 S.E.2d at 345-46. I further agree that the unsuccessful candidate, in order to meet his burden, may present the testimony of voters in that election. Boyer, 106 N.C. at 625, 11 S.E. at 330-31. Finally, I agree that in this case the unsuccessful candidate, Frank H. Harper, having shown some irregularities, has failed in his burden of showing that those irregularities altered the result of the election. Thus, the order of the superior court dismissing the complaint of Frank H. Harper must be affirmed.
*704 I do not join with the majority in its expression of opinion that this result and the law on which it is based represents bad public policy. The judicial system regularly has to sort out truthful and untruthful testimony, and I know of no reason why it cannot be done in cases of this type. To concede our inability to do so would require new elections in every case upon a mere showing that there has been some irregularity that may possibly have affected the election. This, in my opinion, would not represent sound public policy. Furthermore, it is inconsistent with the law of this state which holds that evidence based on “conjecture, surmise and speculation” is not sufficient to support a verdict. Hinson v. National Starch & Chem. Gorp., 99 N.C. App. 198, 202 , 392 S.E.2d 657, 659 (1990).