RAMON "RAY" ORTIZ v. IDA GARCIA-CORTEZ--Appeal from 107th District Court of Cameron County

NUMBER 13-02-464-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI

RAMON  ARAY@  ORTIZ, Appellant,

v.

IDA GARCIA-CORTEZ, Appellee.

On appeal from the 107th District Court

  of Cameron  County,  Texas.

O P I N I O N

Before Justices Dorsey, Hinojosa, and Rodriguez

Opinion by Justice Dorsey

This is an accelerated appeal from an election contest pursuant to Texas Election Code section 232.014. See Tex. Elec. Code Ann. ' 232.014 (Vernon1986). Ida Garcia-Cortez and Ramon ARay@ Ortiz opposed each other to be the Democratic candidate for Justice of the Peace, Precinct 6, Cameron County, Texas. After a run-off election and a recount, Ortiz was declared the winner, having received two more votes than Garcia-Cortez: 1,111 to 1,109. Garcia-Cortez filed a contest to this election result, alleging that the recount committee had improperly failed to count three ballots that should have been counted because the voter=s intent could be ascertained. The parties stipulated that these three ballots were the only ones at issue, and the only question was whether they were legal votes that the canvassing committee had improperly failed to count. After trial to the court, the court declared the election to be void, finding that the true outcome of the run-off election could not be determined, and ordering another election to be held. We hold the trial court erred in declaring the election void, and reverse and render judgment in favor of Ortiz.

The function of the district court in an election contest is to determine Awhether the outcome of the election, as shown by the final canvass, is not the true outcome because (1) illegal votes were counted; or (2) an election officer . . . (B) failed to count legal votes; . . . .@ Tex. Elec. Code Ann. ' 221.003 (Vernon1986). This case involves the question of whether the canvassing committee erred in failing to count the three votes that are alleged to be legal votes. If the three ballots are legal votes for Garcia- Cortez and should have been counted, then the outcome as declared by the canvassing committee is not the true outcome, because the tally would make Garcia-Cortez the winner by one vote. If the ballots are votes for Ortiz, the result of the election remain the same, giving a larger margin to the declared winner, Ortiz. If the intent of the voters cannot be ascertained from the ballots, the canvassing committee would be correct in disregarding them and declaring Ortiz the winner by two votes.

The three ballots were admitted into evidence at the trial. The ballots at issue in this case contained a box for each race which included the name of the race, both in English and Spanish, and the names of the candidates running for that position. To the left of each candidate=s name was an oval space. The following instructions were contained at the top of the page:

INSTRUCTION NOTE:

Vote for the candidate of your choice in each race by darkening in the oval provided to the left of the name of the candidate.

In two of the contested ballots, a line was drawn through the name of Ida Garcia Cortez and the oval space next to her name. The other contested ballot merely contained a mark in the margin to the left of the names, outside the box containing the candidates names, next to the line which reads, AJustice of the Peace, Precinct No. 6.@ Appellant Ortiz testified at the hearing that he had distributed sample ballots to aid in his election in which the oval along side his name was marked with an arrow and the name of his opponent, Cortez, was lined out.

The rule as to whether a ballot should be counted turns on whether the intention of the voter to cast his vote for a particular candidate can be determined.

Election code section 64.003 states:

A vote for a particular candidate whose name is on the ballot must be indicated by placing an AX@ or other mark that clearly shows the voter=s intent in the square beside the name of the candidate for whom the voter desires to vote.

Tex. Elec. Code Ann. ' 64.003 (Vernon1986). In reference to a prior version of this provision, one court of appeals noted, AIt is well settled by statute and by case law that the failure of a voter to mark his ballot in strict conformity with the election code does not invalidate the ballot, and that the ballot shall be counted in all races in which the intention of the voter is clearly ascertainable.@ Mitchell v. Jones, 361 S.W.2d 224, 233 (Tex. Civ. App.CTexarkana 1962, no writ.) (citing Duncan v. Willis, 157 Tex. 316, 302 S.W.2d 627 (1957)). However, where the intention cannot be ascertained, the court should not count the vote in favor of one party or another. Guerra v. Garza, 865 S.W.2d 573, 576 (Tex. App.CCorpus Christi 1993, writ dism=d w.o.j.).

It is impossible to divine the intent of the three voters using these contested ballots, and the canvassing committee acted properly in disregarding them. They cannot be counted for either candidate. We hold the trial court erred in voiding the election on grounds that it was unable to ascertain the intention of the voters with regard to these particular ballots.

The judgment is Reversed and Rendered that Ramon ARay@ Ortiz be declared the nominee of the Democratic Party for Justice of the Peace, Precinct 6, Cameron County, Texas.

______________________________

J. BONNER DORSEY,

Justice

Do not publish.

Tex. R. App. P. 47.3(b).

Opinion delivered and filed

this 27th day of September, 2002.