Opinion
No. 59967.
April 14, 1983.
David Hopper, Norman, for petitioner.
Sharon Bumgarner, Cleveland County Election Bd., Judge E.M. McDanel, and Philip Redwine, Norman, for respondents.
MEMORANDUM OPINION
We assume Original Jurisdiction under the provisions of Art. VII, § 4, Okla. Const., and by reason of Edmondson v. State ex rel. Phelps, Okla., 533 P.2d 604 (1974); Helm v. State Election Board, Okla., 589 P.2d 224 (1979); Hembree v. City of Stilwell, Okla., 597 P.2d 1218 (1979). After consideration of the briefs, transcript of proceedings had in the District Court of Cleveland County and having heard Oral Argument of the parties, this Court finds:
1. One contesting an election has the burden of proving the winner of the contested race cannot be ascertained with mathematical certainty. Mere probability will not suffice. Helm, supra [589 P.2d] pg. 227; Hembree, supra.
2. We find petitioner has failed to meet his burden of proof that respondent, real party in interest, Joyce Carr, could not be determined the winner of the contested race with mathematical certainty.
3. It is highly improper to inquire of a voter-witness during a judicial proceeding as to the person for whom the voter cast his ballot, even though that voter-witness is required to secretly mark a ballot and deposit same in a locked box which remains unopened. 26 O.S. 1981 § 7-109[ 26-7-109]. Because the court below did not consider such evidence, and indeed, left the ballots in the locked box without examination, such judicial action constituted harmless error.
4. The findings of the trial court that Joyce Carr can be determined to be the winner of the contested race with mathematical certainty are supported by the record.
The order heretofore issued staying the issuance of the certificate of election to respondent real party in interest, Joyce Carr, be and the same is hereby dissolved; the secret ballots marked by voter-witnesses are ordered to be destroyed immediately without examination; and petitioner's prayer for a prerogative writ is denied.
APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED. PETITION FOR WRIT OF MANDAMUS DENIED.
BARNES, C.J., SIMMS, V.C.J., and IRWIN, HODGES, LAVENDER, DOOLIN, HARGRAVE, OPALA, JJ., concur.
WILSON, J., not participating.