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PRESTON BILLINGS, RICKY JILE and OTHA WESTON REID v. ROBERT T. HOLLINGSWORTH

DECEMBER 16, 1987

PRESTON BILLINGS, RICKY JILE and OTHA WESTON REID
v.
ROBERT T. HOLLINGSWORTH, JR., ROBERT PATTON, JIM DAVIS, ALBERT BELENCHIA and DAVID MALATESTA



BEFORE DAN LEE, P.J.; ROBERTSON and GRIFFIN, JJ.

GRIFFIN, JUSTICE, FOR THE COURT:

Preston Billings, et al. appeal the decree of the Bolivar County circuit judge, sitting without a jury, wherein he adjudicated the results of the elections for office of Aldermen of Shelby, Mississippi to be upheld and the winners of said elections as certified; the appellees, confirmed. Appellants are unsuccessful contestants for office, and aggrieved of the results have filed this appeal.

As error, appellants allege the lower court erred in affirming the certification of the Shelby Election Commission when the evidence revealed an indeterminate number of ballots were cast on a malfunctioned voting machine. We find to the contrary, in that Billings, et al. failed to prove that illegal votes sufficient to effect the outcome

 of the election were cast. We affirm.

 Voters cast ballots on three machines provided by Automatic Voting Machine in Jamestown, New York. Each of the machines was equipped with a single-shot voting device so that pursuant to Miss. Code Ann. 21-11-15 (1972) (since repealed, effective January 1, 1987), the only votes recorded would be those when a voter had selected five (5) candidates for an aldermanic position.

 Voting machine number 137800 registered 1,344 votes, a number not divisible by five (5) and, therefore, an indication of some sort of malfunction of the machine.

 Testimony by three experts - Robert C. Rosengren, Jimmy Jordan, and Robert Bugner - confirmed the malfunction. (These men were stipulated as expert witnesses in the field of the use of automatic voting machines prior to trial). However, the gist of their testimony revealed that there was no way to ascertain, with any degree of scientific or mathematical certainty, as to how many times the machine malfunctioned, how many votes would have been allocated per candidate had the machine not malfunctioned, whether the machine malfunctioned a sufficient number of times to change the results of the election, or which candidate received the votes as a result of the machine malfunctioning.

 The testimony of Jordan and Bugner did establish that the votes cast "did express the will of the voters" , e.g., no votes went to any candidate except to those cast for that particular candidate, even though the malfunction allowed voters to cast votes on the ballot for less than the statutorily required amount.

 Lee Burke, Chairman of the Election Commission for the City of Shelby, testified that the commission consisted of three members including Burke, Effie Foster and Auberie Billings. He and Foster (a majority of the commission) certified the results of the election and sent the original copy thereof to the Secretary of State. He further testified that no copy of these results had been placed in the minutes, and prior to certification only the total number of votes for each candidate had been reviewed. As a result, the commission, prior to certification, failed to note that the tally on machine Number 137800 was not divisible by five, thereby exhibiting no knowledge of said malfunction.

 At the close of evidence the court determined that it was impossible to ascertain "if there were illegal votes, for whom they were cast or how they would affect the outcome

 of the election." The judge further found that contestants had failed to bear the burden of proof as required by law, and so affirmed certification by the Shelby Election Commission. Aggrieved, plaintiffs have filed this appeal.

 II.

 There is no doubt that the burden of proof herein lies with the contestants and appellants herein. See, 26 Am. Jur. 2d, Elections, Section 342, Page 161; Berryhill v. Smith, 380 So. 2d 1278 (Miss. 1980); Pyron v. Joiner, 381 So. 2d 627 (Miss. 1980); Walker v. Smith, 213 Miss. 255, 56 So. 2d 84 (1952); O'Neal v. Simpson, 350 So. 2d 998 (Miss. 1977).

 Further, not only does the contestant have the burden of proof in an election contest, but he must prove his case by the standard of reasonable certainty. See, Necaise ...


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