September 30, 2003
Re: Challenge of municipal election
Dear City Manager,
It is my understanding that a citizen has filed a claim challenging the results of a recent
municipal election in the City. A current city commissioner, who was not a candidate in the
election, served as democratic registrar during early voting and on election day. This situation
forms the basis of the complaint filed with the election commission.
Although it is a violation of the Tennessee Code for an elected official to serve as a registrar in
an election, such circumstances will not lead to an invalidation of the election results. T.C.A. '
2-1-112(a) states, in part:
Neither an elected official nor an employee of a state, county, municipal or federal
governmental body or agency or of an elected official may serve as a member of a county
election commission or as a member of a county primary board or as an election official.
The County Election Commission should not have allowed a current city commissioner to serve
as registrar, in light of this clear language contained in the Tennessee Code.
There are no reported cases in Tennessee in which an election was challenged on grounds that an
elected official acted as registrar in violation of state law. This is likely because such claims do
not state a sufficient basis for invalidation of election results, and therefore never reach the
appellate court level.
The Tennessee Supreme Court has repeatedly ruled that complaints seeking to have election
results invalidated must show that the illegal act complained of actually affected the outcome of
the election, so that if not for the illegal act, another candidate would have been elected. The
Court states:
In reviewing a complaint that does no more than allege statutory violations, however, the
focus of the court’s inquiry must be kept in mindBthat is, whether the violations are so
serious as to thwart the will of the community upon a particular question. Forbes v. Bell,
et al, 816 S.W.2d 716, 720 (Tenn. 1991). Emphasis added.
Whatever statutory provisions are essential to the attainment of this end, are obviously
indispensable; and whatever precautions prescribed by statute against mistake or fraud are
of such a nature that their omission in the particular instance has resulted in a fraud upon
the electors, or has rendered the result of the election incurably uncertain... Browning v.
Gray, 191 S.W. 525, 526 (Tenn. 1916). Emphasis added.
[O]ur case law recognizes that statutory violations alone may be sufficient to invalidate
an election, especially where they thwart those statutory provisions “designed to
(1) prevent undue influence or intimidation of the free and fair expression of the
will of the electors or (2) ensure that only those who meet the statutory
requirements for eligibility to vote, cast ballots.” Emery v. Robertson County
Election Commission, 586 S.W.2d 103, 109 (Tenn. 1979). But not every
irregularity, or even a combination of irregularities, will necessitate the
invalidation of an election. Lanier v. Revell, 605 S.W.2d 821 (Tenn. 1980).
Emphasis added.
It may be stated, therefore, that as a general rule honest mistake or mere omissions on the
part of the election officers, or irregularity in directory matters, even though gross, if not
fraudulent, will not void an election unless they affect the result, or at least render it
uncertain *** And even if the acts of such officers are fraudulent, the votes of the
electors should not be invalidated if it is possible to prevent it. Summitt v. Russell, 285
S.W.2d 137, 141 (Tenn. 1955), citing 106 A.L.R. 398, 399. Emphasis added.
As the language quoted above from the Tennessee Supreme Court indicates, the failure of an
election commission to follow statutory guidelines alone will not invalidate election results. The
complainant must rather show that some act of fraud took place, that persons were allowed to
vote who were not qualified, or that qualified voters were denied the right to vote. Even if a
complainant can prove that fraud or disenfranchisement of voters occurred, the election results
may only be invalidated if it is proven that such occurrences affected the outcome of the election,
and that another candidate would have been elected.
Unless the citizen who has filed a complaint with the County Election Commission can prove
that the election results would have been different had the commissioner not worked as a
registrar, in my opinion, the complaint will be dismissed.
I hope this information is helpful. Please let me know if you need any further assistance in this
matter.
Sincerely,
Melissa A. Ashburn
Legal Consultant