Opinion
No. 94-CA-389.
May 26, 1994. Writ Denied May 31, 1994.
APPEAL FROM TWENTY-FOURTH JUDICIAL DISTRICT COURT, PARISH OF JEFFERSON, STATE OF LOUISIANA, HONORABLE M. JOSEPH TIEMANN, J.
Theodore Nass, Richard Tiemann, Gretna, for plaintiff-appellant, Philip E. O'Neill.
R.A. Osborn, Jr., Gretna, for defendant-appellee, Juan "Johnny" Perez.
Sheri Marcus Morris, Asst. Atty. Gen., Baton Rouge, for defendant-appellee, W. Fox McKeithen.
Celia R. Cangelosi, Baton Rouge, for defendant-appellee, Jerry M. Fowler.
Don C. Gardner, Harahan, for defendant-appellee, Jon A. Gegenheimer.
Before GAUDIN, GRISBAUM and CANNELLA, JJ.
For the following reasons, we affirm the trial judge's granting of an involuntary dismissal.
Appellant Philip E. O'Neill has produced statistical evidence that there was a seven-vote discrepancy in an election he lost by six votes.
On one voting machine, precinct 179B, 19 persons voted when only 18 signed in and were eligible to vote at that site.
In another machine, precinct 180, located in the same building as 179B, 63 voters signed in but only 62 votes were recorded.
It is possible that one voter eligible to vote in 180 actually voted in 179B.
In precinct 172, there were 154 votes recorded when 158 persons signed in; and in precinct 173, 69 voters signed in but only 68 votes were actually cast.
The record does not show why there was a seven-vote difference. Perhaps there was simple human error and/or mechanical malfunctions. However, the above statistics were submitted to the trial judge without any indication or even suggestion of fraud, illegality, machine tampering or impropriety of any kind.
In Fitzmorris v. Lambert 382 So.2d 169 (La.App. 1 Cir. 1979), writs denied at 384 So.2d 793 (La. 1979), the court said at page 174:
". . . before any determination of serious irregularities can be made, it is necessary that evidence be produced as to all elements of the voting procedure . . . A showing that a machine was not properly sealed is no ground for disallowing the votes cast unless other factors indicate some illegal action or tampering. The same would be true as to differences between the public and protective counters, with no other evidence of impropriety adduced."
In accord with Fitzmorris, we hold that before a new election can be ordered, a statistical showing is not sufficient. Such evidence must be coupled with proof of fraud, illegality, machine tampering or impropriety of some kind.
The standard of review in involuntary dismissal cases is manifest error. See Fourcade v. City of Gretna, 598 So.2d 415 (La.App. 5 Cir. 1992), at page 423. We find no such error in the order signed May 17, 1994.