# Helm v. State Election Board > Supreme Court of Oklahoma · January 8, 1979 · 589 P.2d 224 URL: https://www.frixlaw.com/law-library/cases/9625474 ## Case - **Full name:** State Senator Mary HELM, Petitioner, v. the STATE ELECTION BOARD of the State of Oklahoma and the Honorable Lee Slater, Secretary of the State Election Board, Respondents - **Court:** Supreme Court of Oklahoma - **Decided:** January 8, 1979 - **Citations:** 589 P.2d 224 - **Precedential status:** Published - **Opinion:** Dissent by Opala - **Judges:** Simms, Lavender, Williams, Hodges, Barnes, Doolin, Har-Grave, Opala, Irwin - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9625474 ## Opinion text OPALA, Justice, dissenting: Were I permitted to use but my common sense in solving our problem, I would be strongly dissuaded from depriving Cain of his election certificate. He is guilty of no misconduct and stands before us with a “clean” margin of 177 votes against only 185 that remain “in limbo.” The fruits of victory would be his if we were to accept one of his two offers: (1) to establish, based on voter trends or otherwise, the mathematical probability of receiving at least 10 of the unaccounted votes or (2) to produce 10 voters who will testify that, using the misprogrammed machine in the affected precinct, they had actually cast their vote for him. Acting as an “ordinary prudent man” I would entertain no doubt that Cain would have gotten at least as many of the disputed votes as he needs for his victory. I would hence be greatly tempted to let Cain do what obviously appears to be the practical, common-sense solution. Reacting to the problem as a man of law I find the legal barrier to accepting Cain’s first offer as insuperable as does the court’s opinion. There is absolutely no legal substitute for mathematical certainty and there exists no public policy consideration that could ever justify me in fashioning one. Nor do I feel that the mathematical certainty test can be met by parol evidence supplying votes cast and then “wiped out” by a misprogrammed machine. Passing to Cain’s alternative offer, I perceive the legal effect of a misprogrammed machine’s tally more analogous to a total absence of both the ballot box and the canvass of returns therefrom, while the court appears to treat it as akin to an impeached canvass following the destruction of ballots from which voter intent could have been ascertained. The court’s analogy is untenable and its resort to Cobb 1 inapposite. Cobb gives it no comfort. There “four counters, the inspector and the clerk” were allowed to give uncontradicted testimony as to their “honest count” of a box. This count had been made before the box was tampered with. Here, there was never an antecedent reliable count to be impeached. This is so because the machine admittedly failed to produce one that would deserve even marginal legal efficacy. This case must be regarded as identical in law to: (1) a box filled entirely with ballots from which “. . . it is impossible to determine the voter’s choice . . . ” and which must therefore be all held void 2 or (2) unlawful action by officials which prevents eligible voters from casting a ballot or prevents eligible votes from being counted as valid. Either situation results in valid ballots being robbed of their legal existence or simply in no vote being cast. The rule applicable where eligible votes are not cast because of official interference is that announced in Martin v. McGarr, 27 Okl. 653 , 117 P. 323, 328 . It prohibits the use of parol evidence to take the place of inefficacious ballots. The Martin rationale is that in election contests, unlike in equity, or other judicial dispute-resolution, courts may not consider as done that which should have been done by executive officials but did not in fact happen. Votes are to be effectively cast at the polls or not at all. Votes not previously *236 cast at the polls must not be given legal birth by courtroom testimony. 3 The dangers are all too clear. 4 The court no doubt derives some comfort from the narrow exception it carves out which would confine admissible parol testimony to election contests over mispro-grammed machines in Oklahoma County only. My commitment to maintaining ballot box integrity requires a resolve that election officials’ misconduct, no matter how slight or innocent, should be deterred, where as here, it results in voters being disenfranchised or their votes having to be initially cast in the courtroom rather than at the polls. The right of suffrage is no less precious than any of the great freedoms of the Bill of Rights. Just as we deter police misconduct by reversing convictions for technical violations of cherished rights, so should we, with like alacrity, be vigilant to guard against any action by officialdom, high or petty, which prevents eligible votes, validly cast, from being counted. If the cost of new trials in reversed criminal cases is not too high a price for society to bear for freedom from government oppression, neither is the expense of a new election untainted by vitiating official irregularity. I shall not yield here to the temptation of a common-sense solution. The price is too high. Citizen Cain did in fact win fair and square. He has a margin of 177 valid votes. But the fact remains that 185 other citizens whose votes, in my opinion, may not be counted at all, were disenfranchised because of one misprogrammed machine. The vote on that machine may not be reconstructed in court. Moreover, there are here no records from which we may determine the identity of disenfranchised voters on the ill-fated machine. This alone should be enough reason for us to order a new election. Only in so doing can we manifest our unyielding commitment to the integrity of the ballot box. IRWIN, Vice Chief Justice, dissenting. It is evident that without the oral testimony, the results of the election could not be determined with mathematical certainty and Senator Mary Helms would be entitled to her writ. Under 26 O.S.1974 Supp. § 8-120, it was necessary, inter alia, for Senator Helm to “Prove that it is impossible to determine with mathematical certainty which candi *237 date is entitled * * * to be issued a Certificate of Election. * * *” This was the same standard used by this Court in Edmondson v. State ex rel., Phelps, Okl., 533 P.2d 604 (1974); Baggett v. State Election Board, Okl., 501 P.2d 817 (1972); and Williamson v. State Election Board, Okl., 431 P.2d 352 (1967). In my opinion, the Legislature simply did not authorize oral testimony to be used as evidence to determine the question of mathematical certainty. I am authorized to state that Justice Opa-la concurs with the views herein stated. . Cobb v. Berry, 67 Okl. 29 , 169 P. 46, 47 (1917). . 26 O.S.Supp.1978 § 7-127(8). . In Pawlowski v. Thompson, 64 S.D. 98 , 264 N.W. 723, 724 (1936) this principle is clearly verbalized thusly: “A voter who did not vote, though legally entitled to do so, and although he did not vote because he was unlawfully prevented, can not afterwards be permitted to testify that he would have voted for a certain person, notwithstanding that the lawful votes so excluded would, if cast as intended, have changed the result. “The election is to be decided by the number of legal votes actually cast, and not by ascertaining what might have been cast. The election may be held invalid because of the suppression of legal votes, but public policy forbids that, after it is known just how many votes are necessary to change the result, it should be permitted to change it upon the present statement of voters as to their past intentions.” . “. . . Where a ballot has been marked by the elector, properly cast, and returned, we have something tangible and certain to deal with, and from it we unerringly read the intention and act of the elector. But where, as in this case, the supposed ballots were never in existence, and we must rely upon the subsequent declaration of the electors as to how they intended to and would have marked and cast their ballots, if they had voted, it would be an uncertain and dangerous experiment to attempt the task of ascertaining and giving effect to their intentions as ballots actually cast and returned. Uncertain, because it would be simply a matter of speculation; dangerous, because it would give to such electors the power of determining the result of an election in a close contest. All that it would be necessary for them to do, in such a case, to decide the election, would be to declare that they intended to vote for a particular candidate. It would enable them to sell the office to the candidate offering the highest price for it, because they would not be called upon for their declaration until a contest arose, after the actual ballots had been counted, and the precise effect of their statement known. They could swear falsely as to their past intention, without fear of punishment, for how would it be possible to disprove their statements as to their intentions with reference to a supposed act, if perchance they had acted?” Martin v. McGarr, supra, at p. 328 , (emphasis ours). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9625474. Public record. Not legal advice.