Eubanks v. Hale

This appeal involves the contest of an election for the office of sheriff of Jefferson County. Many of the facts relating to the contest are undisputed. Nonetheless, we set out the pertinent facts to show the nature of the controversy and the legal issues presented.

On November 3, 1998, an election was held in Jefferson County for the office of sheriff of Jefferson County. Jim Woodward and Mike Hale were candidates for this office. On November 6, 1998, the Board of Supervisors/Canvassing Board for Jefferson County declared the results of the election. The declaration was based on a canvass of election returns provided by the returning officers of the various precincts, including a canvass of the returns of the absentee box made by the absentee-election manager. The canvass showed that Hale had received 106,269 votes and that Jim Woodward had received 106,232 votes — the difference was 37 votes. The Board declared Mike Hale the winner.

After several proceedings related to the election had occurred, Della F. Eubanks, Daniel J. Nichols, and Jim Woodward (hereinafter together referred to as “the contestants”) filed a statement of election contest in the Jefferson Circuit Court. When they filed the contest, they also filed a “motion for random assignment of judge by the presiding judge.” After seven of the circuit judges recused themselves, Judge William Wynn was chosen by a random drawing to preside over the election contest.

Judge Wynn ordered the contestants to file, in camera, a list of the names and addresses of persons who the contestants believed had cast illegal votes. The contestants complied with the order, presenting two lists containing the names and addresses of 274 voters suspected of having cast illegal or invalid ballots. On December 9, 1998, the contestants served notice to the adverse party of the number of alleged illegal votes and certain information regarding those votes, as required by § 17-15-21, Ala.Code 1975. This notice listed 64 voters in the Bessemer Division of Jefferson County as having cast illegal absentee ballots for Mike Hale; the notice also stated that the contestants intended to introduce evidence tending to show that between 100 and 200 on-site absentee ballots from the Birmingham Division had not been counted because on those ballots the box indicating the reason for voting absentee was not marked. The contestants contend that those ballots should have been counted.

The trial court set the trial for January 6, 1999, and scheduled a pretrial conference for December 29, 1998. At the December 29, 1998, conference, Judge Wynn asked the contestants to “show with particularity what they expect to prove at the trial of this case.” The contestants described two general categories of evidence they intended to offer: (1) the on-site absentee ballots in the Birmingham Division that they claim were not counted, but should have been, and (2) the 64 absentee ballots from the Bessemer Division that they claim were illegally cast.

Before the December 29, 1998, conference, Judge Wynn allowed the contestants access to the absentee-ballot applications and affidavits of the 64 voters in the Bessemer Division that the contestants had identified as having cast illegal votes for Mike Hale. The record indicates that the contestants could locate the affidavits of only 48 of those 64 voters, and that of those 48 only 46 might have cast illegal ballots.

On January 4, 1999, Judge Wynn entered an order dismissing the election contest and certifying Mike Hale as having been elected sheriff of Jefferson County.

The contestants appealed, arguing, among other things, that the trial court had erred in not considering the disputed on-site absentee ballots cast in the Birmingham Division and in not allowing the contestants to observe his in camera examination of those absentee ballots.

In dismissing the contest, Judge Wynn stated:

“The [contestants’] first argument was that votes not counted because of failure of voters to mark the block — should have been counted. I counted every single uncounted ballot and added the totals to Woodward and Hale. Hale still received the majority of votes.”

(Emphasis added.)

The contestants argue that they were not permitted to observe all of the examination proceedings conducted by the court. They claim that under § 17-15-7(2), Ala. Code 1975, they should have been permitted to observe those proceedings. That statute provides, in part, that “[examination procedures shall be within the discretion of the court,” but it also states that “[t]he court must, when so requested by any party or candidate involved in the contest, allow such party or candidate, and his agents, to observe all of the examination proceedings.” (Emphasis added.)

From the record before us, we cannot determine whether the parties were allowed to observe all of the examination proceedings and we cannot determine what election materials the trial judge examined in camera. Consequently, we remand this case with instructions for the trial judge to conduct a hearing at which he specifies the election materials he examined in camera and allows the parties to examine those materials and to file such exceptions and objections to the January 4, 1999, dismissal order as they deem proper. The trial court is directed to make a return to this Court within 14 days, and, consistent with the need to preserve the integrity of the ballots, voting machines, and voting-machine computations and printouts, as provided by § 17-15-7(2), Ala.Code 1975, to keep and transmit to this Court, under seal, any and all materials it reviews or has reviewed in this case, so that this Court can view the same evidence the trial judge considered in making his decision in this case, together with any objections and exceptions made by the parties.

REMANDED WITH DIRECTIONS.

HOOPER, C.J., and MADDOX, HOUSTON, COOK, SEE, LYONS, and JOHNSTONE, JJ., concur.

BROWN, J., recuses herself.

On Return to Remand

PER CURIAM.

On July 2, 1999, this Court remanded this election-contest case with instructions for the trial judge “to conduct a hearing at which he specifies the election materials he examined in camera [and to allow] the parties to examine those materials and to file such exceptions and objections to the January 4, 1999, dismissal order as they deem[ed] proper.” 752 So.2d at 1120. This Court further directed the trial court “to make a return to this Court within 14 days, and, consistent with the need to preserve the integrity of the ballots, voting machines, and voting-machine computations and printouts, as provided by § 17-15-7(2), Ala.Code 1975, to keep and transmit to this Court, under seal, any and all materials it ... reviewed in this case, so that this Court [could] view the same evidence the trial judge considered in making his decision in this case, together with any objections and exceptions made by the parties.” 752 So.2d at 1120.

In conformity with this Court’s remand order, the trial court held a hearing on July 7-8, 1999, and allowed the parties and their attorneys to review the contents of several boxes of evidence that the trial judge stated he had reviewed in camera in making his decision to dismiss the election contest. At the close of those proceedings, the trial court, as directed by this Court, ordered that the evidence be placed under seal and transferred to this Court. The records of this Court show that, on the evening of July 8, 1999, the clerk of this Court accepted the evidence that had been placed under seal. That evidence remained in the custody of the clerk of this Court, under seal, until August 10, 1999, when this Court, in conference, using a method consistent with the need to preserve the integrity of the ballots, as required by § 17-15-7(2), Ala.Code 1975, examined the evidence for the purpose of deciding the legal issues presented to this Court. For a better understanding of this case, this Court directed that the parties appear before this Court on July 29, 1999, and present their respective arguments on the propriety of the trial court’s order dismissing this case.

All absentee ballots must “be accompanied by an envelope upon which shall be printed an affidavit.” § 17-10-7(a), Ala. Code 1975. Throughout this opinion, we will refer to ballots authorized by § 17-10-8(c), the form of whose associated affidavits is governed by § 17-10-7(c), as “on-site” absentee ballots. We will refer to ballots authorized by § 17-10-3(a), the form of whose associated affidavits is governed by § 17-10-7(b), as “regular” absentee ballots. We attach as Appendix A to this opinion a copy of the “on-site” absentee-ballot affidavit used in this election, and we attach as Appendix B a copy of the “regular” absentee-ballot affidavit used in this election.

The question presented in this case is: Which candidate for sheriff of Jefferson County received the largest number of legal votes in the 1998 General Election? That, and that alone, is what this Court seeks to ascertain. A determination of this issue has been delayed by the failure of the trial judge to follow a statutory mandate in election contests. See Ala. Code 1975, § 17-15-7(2): “The court must, when so requested by any party or candidate involved in the contest, allow such party or candidate, and his agents, to observe all of the examination proceedings.” (Emphasis added.) Instead, the trial judge conducted a private examination of the documents at his home and then, without permitting the parties to review the documents, entered an order stating:

“The contestants’ first argument was that votes not counted because of failure of voters to mark the block — should have been counted. I counted every single uncounted ballot and added the totals to Woodward and Hale. Hale still received the majority of votes.”

We remanded to permit the parties to exercise their statutory right to examine these documents. § 17-15-7(2). After this examination was conducted, we were informed that the paragraph quoted above from the trial court’s January 4, 1999, order was wrong. After hearing oral arguments and examining these documents, we are persuaded that that paragraph in the trial court’s order is wrong and that, at this stage of the proceeding, the contestant, Jim Woodward, not the contestee, Mike Hale, appears to have the majority of legal votes cast for sheriff of Jefferson County in the November 1998 General Election.

7. Our Standard of Review

Before we begin our discussion, we first consider the standard of review applicable. At oral argument, the contestee Hale argued that the ore tenus standard of review should apply and that applying that standard would support the dismissal. This Court has stated:

“In reviewing the trial court’s findings of fact in [an] election contest, we apply the same standard used by appellate courts when the trial court in a nonjury case has taken a material part of the evidence through ore tenus testimony; that is, we will not disturb the trial court’s findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence.”

Williams v. Lide, 628 So.2d 531, 534 (Ala.1993), citing Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.2d 788, 797 (1942). That same principle of law is also stated in such cases as Gaston v. Ames, 514 So.2d 877 (Ala.1987), and Cougar Mining Co. v. Mineral Land & Mining Consultants, Inc., 392 So.2d 1177 (Ala.1981).

Should we apply the ore tenus standard to this case, in which there was no evidence presented ore tenus that was relevant to the main legal issues before this Court and in which, as to the number of votes cast for the two candidates, the case was decided based upon deposition testimony and a review of documentary evidence, consisting mostly of absentee affidavits and ballots? We think not. Our appellate courts have held on several occasions that, where no testimony is presented ore tenus, a reviewing court will not apply the presumption of correctness to a trial court’s findings of fact and that the reviewing court will review the evidence de novo. See Hospital Corp. of America v. Springhill Hospitals, Inc., 472 So.2d 1059, 1060-61 (Ala.Civ.App.1985), where the Court of Civil Appeals stated:

“The rationale behind the ore tenus rule has historically been that the trial court deserves a presumption of correctness when it is in a position to actually see [the witnesses] and hear the testimony, observing firsthand the demeanor of the witnesses. Christian v. Reed, 265 Ala. 533, 92 So.2d 881 (1957); Steed v. Bailey, 247 Ala. 407, 24 So.2d 765 (1946); Barran v. Barran, 431 So.2d 1278 (Ala.Civ.App.1983). Considering that the trial court heard only part of the testimony of one witness, including only a partial direct examination and no cross examination, and that the case was otherwise tried exclusively on the basis of numerous depositions and exhibits, we hold that the ore tenus rule does not apply. Consequently, no presumption of correctness will be accorded the trial court’s findings on the evidence, and this court will sit in judgment on the evidence as if it had been presented de novo. Smith v. Dalrymple, 275 Ala. 529, 156 So.2d 622 (1963); Lepeska Leasing Corp. v. State Department of Revenue, 395 So.2d 82 (Ala.Civ.App.), writ denied, 395 So.2d 85 (Ala.1981).”

See also, Muscogee Constr. Co. v. Peoples Bank & Trust Co., 286 Ala. 258, 238 So.2d 883 (1970), and Continental Elec. Co. v. City of Leeds, 473 So.2d 1056 (Ala.Civ.App.1984).

Based on the standard of review we have decided applies in this case, and after considering the oral arguments, the briefs of the parties on the original submission, and the objections and exceptions filed on return to remand, and after examining the same evidence the trial court examined in camera, we conclude that the order of the trial court dismissing this case is due to be reversed and the cause remanded with directions. We will state in some detail the reasons we reach this conclusion, and, in doing so, we will consider three distinct groups of ballots that have been discussed by the parties.

II. The 25 Bessemer Division affidavit envelopes vnth ballots enclosed

The parties represent to this Court, and our review of the evidence confirms, that 25 absentee-ballot envelopes from the Bessemer Division of Jefferson County, which had been opened at some point before July 7-8, are included in the box labelled “Court’s exhibit 2.” The ballots, however, were still in envelopes inside the affidavit envelopes. The parties do not dispute that these ballots were not counted by election officials.

The presence of these 25 absentee envelopes and ballots in Exhibit 2 is consistent with the testimony of Diane Grubbs, the absentee-ballot manager for the Bessemer Division, who testified, by deposition, that 25 absentee ballots were set aside on election night and were not counted because the voters had failed to fill out their affidavit forms properly. The presence of these 25 absentee ballots is also consistent with what the parties found when they examined the evidence during the July 7-8 hearing, because the transcript reveals that they also found that there were 25 of these affidavit envelopes and that they had previously been opened.

This Court examined the affidavit envelopes one-by-one, and we conclude that election officials were correct with regard to all but two of the 25 ballots when they concluded that the ballots’ affidavits did not comply with statutory requirements and that the ballots were therefore not due to be counted. Section 17-10-10, Ala.Code 1975, provides:

“No poll worker or other election official shall open an affidavit envelope if the affidavit printed thereon is unsigned by the voter (and unmarked), and no ballot envelope or ballot therein may be removed or counted. No poll worker or other election official shall open an affidavit envelope if the voter’s affidavit signature (or mark) is not witnessed by the signatures of two witnesses or a notary public (or other officer authorized to acknowledge oaths) and no ballot envelope or ballot therein may be removed or counted.”

With regard to 23 of the 25 affidavit envelopes and ballots, as mentioned above, we conclude that election officials complied with the requirements of § 17-10-10. We conclude that 2 of the 25 affidavit envelopes, however, complied with all applicable provisions of law. Accordingly, the ballots contained within those two affidavit envelopes should have been counted. Those ballots showed votes for Hale.

Although the parties have not made these 25 ballots an issue on this appeal, we elected to examine them, in an effort to try to determine how the trial judge concluded that Hale was the winner of the election. At the July 8, 1999, remand hearing, there was a question as to whether 25 opened affidavit envelopes, from the Bessemer Division, with ballots in them, should be examined. The contestee demanded that they be examined; the contestants objected. The trial judge stated that he had “examined that stack” and added “I don’t recall opening these ballots, but I don’t recall rejecting anything. If it was there, I felt like I had a duty to look at it. And, as far as me having a specific recollection about opening these and looking at them, I don’t. But I didn’t cull anything else, I looked at everything.” Therefore, this Court has looked at these 25 ballots, and we have determined that 23 of them should not have been counted, because they failed to comply with statutory requirements for witnessing or notarization.

All 25 of these ballots contained votes for sheriff. Adding these 25 ballots to the 108 votes for sheriff out of 115 on-site Birmingham Division absentee ballots, see section IV, infra, yields a total of 133 votes for sheriff, which is the total that the trial judge stated at the remand hearing he had determined when he counted the ballots in his review of the evidence. Based on the evidence before us, and in light of the trial judge’s statement that he “counted every single uncounted ballot and added the totals to Woodward and Hale,” we can conclude only that the trial judge opened these affidavit envelopes and that he included these ballots in his calculations. However, as noted above, 23 of those ballots were not due to be counted. Two were due to be counted as votes for Hale. That conclusion, coupled with the conclusions we reach below, supports our conclusion that the trial judge’s statement that “Hale still received the majority of votes” is not supported by the evidence.

III. The 23 absentee-affidavit envelopes that contained no ballots

We next consider an issue raised by the parties relating to 23 “on-site” absentee affidavit envelopes from the Bessemer Division that contained no ballots when the parties examined them on July 7-8 and which, the parties represent to this Court, the parties discovered mixed together with the affidavit envelopes for absentee ballots that had been counted by election officials on election day. Counsel for the contestee, at oral argument, raised the question whether those ballots might perhaps have been lost. Counsel for the contestants, however, argued that an assumption that the ballots have been lost would be inconsistent with the evidence.

At oral argument, on this return to remand, the contestant argued that the trial judge had simply miscalculated the votes. The trial judge acknowledged that possibility: “And it could just be a miscount on my part.” At oral argument, the contestee contended that it was equally plausible that the trial judge “looked at something that’s not here in these boxes.” (A reference to seven boxes and one envelope that were forwarded to this Court by the trial court.) The trial judge stated at one point during the remand hearing, “[T]hat could have happened.”

Counsel for the contestants represented to this Court that the 23 affidavit envelopes in question had been mixed together with the affidavit envelopes for absentee ballots that had been counted by election officials on election day. Counsel for the contestee has not contradicted that statement, although he suggested, nonetheless, that these ballots were not counted on election day, even though the envelopes were opened in the same way that all of the other Bessemer on-site envelopes were opened and that they were mixed in the box with all other Bessemer on-site envelopes. We find that argument implausible. If these 23 were added to the 108 Birmingham on-site votes for sheriff, see section IV, infra, this would be a total of only 131 instead of 133 votes, which the trial judge said he counted. Likewise, if we accepted the contestee’s contention, then we would have to ignore the 25 ballots the trial judge said he considered. It is much more plausible that the trial court counted the 25 opened envelopes with ballots still in them, than that he counted some ballots that are now mysteriously missing, and that the 23 absentee envelopes that were opened but without a ballot in them were counted in the election-night totals.

Counsel for the contestants argued that the only reasonable inference to be drawn was that those ballots were counted by election officials. Counsel for the contes-tee has not satisfactorily explained what evidence would show that the ballots in the affidavit envelopes were not counted.

Our finding that the 23 “on-site” ballots were, in fact, counted, is consistent with statutory requirements for the handling of such ballots. Under the provisions of § 17-10-10, Ala.Code 1975, election officials are directed to examine absentee-ballot affidavits before counting absentee ballots. In her deposition, Diane Grubbs testified that it was the practice of Bessemer Division election officials to place absentee-ballot affidavit envelopes that did not conform to their understanding of the requirements of the law in a pile (with the ballots still sealed inside) separate from those that appeared to be in order and that were, thus, to be counted.

Ms. Grubbs testified that it was her understanding that “on-site” absentee ballots with the box unchecked were not to be counted. During her deposition, however, counsel for the contestants presented to her two such affidavit envelopes that had been opened and from which the ballots had been removed. She testified that it was her conclusion that those ballots had been counted, a conclusion that is consistent with a statement made by Mr. Drake, counsel for the contestee, during the deposition hearing of Earl Carter, Jr., the deputy circuit clerk for the Bessemer Division of the Tenth Judicial Circuit.

Based on the foregoing, we think it sufficient to say that no evidence in the record indicates that the 23 envelopes in question had contained ballots that were not counted. No evidence in this record would allow a fact-finder to conclude other than that these 28 absentee ballots were, in fact, counted on election day.

IV. The 115 uncounted “on-site” absentee ballots from the Birmingham Division

One of the central issues involved in this case is whether 115 “on-site” absentee ballots from voters of the Birmingham Division of Jefferson County that were not counted by election officials because the voters did not check a box on their absentee-ballot affidavit forms should, in fact, have been counted. The contestants argue that they should have been, and they argue that adding those votes to the votes certified by election officials would yield a margin of victory for Woodward of 17 votes. Accordingly, they argue that this Court should reverse the trial judge’s order of dismissal and render a judgment for Woodward. The contestee argues, on the other hand, that none of the 115 ballots should be counted because, he argues, they did not comply with the requirements of the law that the voter specify the reason why he or she was authorized to vote absentee.

In resolving the issue whether these ballots should or should not have been counted, we are not without legislative guidance. Sections 17-10-3 through 17-10-26, Ala. Code 1975, specify what persons may vote absentee and detail the procedures for casting and counting absentee ballots. Section 17-10-7 specifically prescribes the form of the absentee voter’s affidavit that is required to be printed on the envelope accompanying each absentee ballot. Subsection (b) of § 17-10-7 specifies the form of the affidavit for what we refer to in this opinion as “regular” absentee ballots, and subsection (c) of § 17-10-7 specifies the form for “on-site” absentee ballots.

For “regular” absentee ballots, that is, those that are mailed in or that are hand delivered, § 17-10-7(b) provides that paragraph (5) of the affidavit shall read as follows:

“ ‘(5) I am entitled to vote an absentee ballot because:

Check only one:

“_I will be out of the county or the state on all of the following days: election day, Saturday ten (10) days prior to election day, and Tuesday of the week immediately preceding election day.

“_ I am physically incapacitated and will not be able to vote in person on election day.

“.__ I work a required workplace shift which has at least ten hours which coincide with the polling hours at my regular polling' place.

“_ I am a student at an educational institution located outside the county of my permanent residence and am therefore unable to vote at my usual polling place on election day.

“_ I am a member of or a spouse/dependent of a member of the armed forces of the United States.

“_ I have been appointed as an election officer at a polling place which is not my regular polling place.”

For “on-site” absentee voters’ affidavits, Subsection 17-10-7(c) provides that paragraph (5) of the affidavit shall read as follows:

“(5) I am entitled to vote an absentee ballot because I will be out of the county or state on election day.”

•It is apparent from the words used by the Legislature in this statute that the Legislature required that the voter check the appropriate reason for voting a “regular” absentee ballot, but made no provision for the inclusion of a box or space after the “(5)” because there is only one reason listed in the statute and on the form, viz.: “I am entitled to vote an absentee ballot because I will be out of the county or state on election day.” Stated differently, a comparison of the language the Legislature used in subsection (b) of § 17-10-7 for “regular” absentee affidavits with the language the Legislature prescribed for “on-site” absentee affidavits in subsection (c) reveals that the Legislature specified spaces in front of the reasons for voting absentee for “regular” absentee affidavits, with instructions to “Check only one,” but that the Legislature did not require that there be a space or a box on the “on-site” absentee form and that there are no instructions to check any such box on that form.

It is readily apparent why the Legislature wrote the statute as it did. Subpara-graph (5) in § 17-10-7(b) lists the six different reasons for authorizing a person to vote absentee, but in § 17-10-7(c) there is only one reason for voting absentee permitted; thus, there are no alternatives to mark when a voter is voting absentee “on site.” The signature of the affiant is sufficient to identify the reason for voting absentee — that the voter states that he or she will be “out of the county or state on election day.” By contrast, for “regular” absentee ballots, there are six possible reasons for casting an absentee ballot by mail or by hand delivery, only one of which includes the reason that the voter will be out of the county or state on election day. Thus, there is" a need for the absentee voter to identify which reason is being claimed. Compare Ala.Code 1975, § 17-10-3(a), with Ala.Code 1975, § 17-10-3(c).

The last sentence of the affidavit — in both forms of the affidavit — reads as follows:

“Moreover, I further swear (or affirm) that all of the information given above is true and correct to the best of my knowledge and that I understand that by knowingly giving false information so as to vote illegally by absentee ballot that I shall be guilty of a misdemeanor which is punishable by a fine not to exceed one thousand dollars ($1,000) or confinement in the county jail for not more than six months, or both.”

Thus, in the case of an absentee ballot cast by mail or by hand delivery, the voter, by checking one of the six possible reasons for casting an absentee ballot and then signing the affidavit, is swearing or affirming that the indicated reason is true and correct. In the case of an absentee ballot cast on site, however, there is only one reason entitling the voter to vote an absentee ballot; therefore, there is no need to indicate which reason the voter has for voting absentee. Simply by signing the affidavit, the voter is swearing or affirming that the single reason stated in paragraph (5) is true and correct, and the voter could be prosecuted for falsely swearing or affirming false information.

Based on the foregoing, we conclude that not only is there no statutory requirement that the “on-site” absentee voter mark paragraph (5) of the affidavit, but an examination of the “on-site” absentee ballot affidavit (Appendix A) shows that the form comports with the Legislature’s direction, by not having any instructions to “Check only one,” because it is the only one listed. Consequently, we hold that the “on-site” absentee ballots should not be excluded simply because the voter did not place a check mark in the box beside paragraph (5), and that the contestants were entitled to have these ballots that complied with statutory requirements counted. Consequently, we cannot accept Hale’s argument, in which he states:

“Woodward does not even cite Roe v. Alabama, 43 F.3d 574 (11th Cir.1995), where the Eleventh Circuit held:

“ ‘We agree that failing to exclude the contested absentee ballots will constitute a post-election departure from previous practice in Alabama.’

“Roe v. Alabama at 581. In effect the Eleventh Circuit found that despite this Court’s holding in Williams v. Lide, 628 So.2d 531 (Ala.1993). [Sic.] The actual practice in Alabama had been not to count ballots which did not meet the statutory requirements of § 17-10-7[, Ala.Code 1975], It is now an established fact by way of the Eleventh Circuit’s finding, that the practice in Alabama in 1994 and in previous years had been to follow a practice of strict compliance in the counting or excluding of absentee ballots.”

(Corrected brief of appellee at 5-6; emphasis added.)

We cannot accept this argument that the law, either before or after Roe, required poll workers or election officials to set aside and not count “on-site” absentee ballots that did not have the box checked, because in § 17-10-10, the Legislature specified the procedures for counting absentee ballots. In that Code section, as we have already pointed out, the Legislature provided:

“No poll worker or other election official shall open an affidavit envelope if the affidavit printed thereon is unsigned by the voter (and unmarked), and no ballot envelope or ballot therein may be removed or counted. No poll worker or other election official shall open an affidavit envelope if the voter’s affidavit signature (or mark) is not witnessed by the signatures of two witnesses or a notary public (or other officer authorized to acknowledge oaths) and no ballot envelope or ballot therein may be removed or counted.”

The Legislature further stated what had been the law prior to Roe, and subsequent thereto, when it provided that “[t]he provision for witnessing of the voter’s affidavit signature (or mark) in Section 17-10-7 goes to the integrity and sanctity of the ballot and election” § 17-10-10, Ala.Code 1975 (emphasis added).

Contrary to Hale’s argument, the requirement that there be substantial compliance with the election laws, as articulated in Williams v. Lide, 628 So.2d 531 (Ala.1993), was not rejected in the aftermath of Roe v. Alabama, 43 F.3d 574 (11th Cir.1995), cert. denied, Davis v. Alabama, 516 U.S. 908, 116 S.Ct. 276, 133 L.Ed.2d 197 (1995). In fact, it is clear that when the Legislature amended the law relating to absentee voting laws in 1996, in response to the dispute resolved in Roe, the Legislature did not intend that poll workers and election officials would be able to set aside “on-site” absentee ballots just because the voter did not check a box on an “on-site” affidavit envelope when it did not require the checking of a space or box. Instead, the Legislature’s intent, when it amended the election laws after Roe, was to address the standard that poll workers and election officials should apply in determining whether to count or not to count a particular absentee ballot. It seems clear to us that, so long as any irregularities in the voting process do not “adversely affect the sanctity of the ballot and the integrity of the election,” substantial compliance “with the essential requirements of the absentee voting law” is sufficient. Williams, supra, at 536.

Based on the foregoing, we conclude that election officials in the Birmingham Division were not at liberty to exclude “on-site” absentee ballots included in affidavit envelopes that did not have the box checked. The failure of the voters casting those ballots to check the box beside the only reason for casting an “on-site” absentee ballot did not conflict with the statute and did not “adversely affect the sanctity of the ballot and the integrity of the election.” Indeed, as we have discussed above, there is no requirement in the law that the box be checked. Those ballots should have been counted.

In support of their argument that Woodward won the election, the contestants also argue that on at least two of these Birmingham Division ballots the voter marked the “straight-ticket” box on the ballot, but then marked a vote for the sheriff candidate of the opposing party. In their objections/exceptions, the contestants argue:

“Judge Wynn stated before the on-site ballots were counted that he did not count ‘five or six’ votes for Hale where the voter voted ‘straight ticket’ Republican while also voting for Hale. July 7 Hearing at 37. The examination of the on-site absentee ballots revealed only 2 ballots in which the vote for Sheriff contradicted a straight party vote. One of these votes was for Woodward and one was for Hale. In any event, these votes should have been counted because [§ 17-8-16, Ala.Code 1975,] allows a voter to vote for a candidate not on his party ticket.”

Objections/Exceptions of Contestants at 4, n. 4. Section 17-8-16, Ala.Code 1975, provides:

“Where only one candidate is to be elected to any office and the elector desires to vote for a candidate not on his party ticket, he may make a cross mark (x) before the name of the candidate for whom he desires to vote on the other ticket.”

In light of the provisions of § 17-8-16, we conclude that the contestants are correct in arguing that a ballot upon which a voter indicated he or she was voting a “straight ticket,” but also indicated that he or she was voting for the other party’s candidate for sheriff, are due to be counted as votes for the candidates beside whose name the voter made his or her mark. Stated differently, where a voter marked a “straight-ticket” ballot for party A, but also made a mark beside the name of the candidate for sheriff of party B, that ballot is due to be counted as a vote for the candidate of party B. We have applied this principle of law in reaching the conclusion we do in this case.

V. Evaluation of the evidence and the trial court’s dismissal order

Determining that the 115 “on-site” ballots in the Birmingham Division should have been counted, except two that did not comply with the affidavit portion, does not end our inquiry, however. As we noted in our opinion of July 2, 1999, the trial judge stated, after his in camera examination of the ballots, that he had counted “every single uncounted ballot” and that those ballots would not have made a difference in the outcome of the election if they had been counted. 752 So.2d at 1120. If the trial judge was referring only to the 115 “on-site” absentee ballots cast in the Birmingham Division, then his statement that Hale was still the winner is clearly erroneous. Our examination of the 115 Birmingham Division ballots shows that 81 of the votes were cast for Woodward; that 27 were cast for Hale; and that 7 of the absentee voters did not cast a vote for sheriff. Two of the 81 votes for Woodward were not due to be counted, however, because of defects in their affidavits. Consequently, adding 79 (81 minus 2) votes to Woodward’s total certified by the Board of Canvassers, and adding 29 votes to the total certified for Hale (27 in the Birmingham Division and 2 not counted in the Bessemer Division, see section II, supra) yields a 18-vote margin of victory for Woodward.

In reviewing this case, including the sealed evidence that we have delineated, we cannot determine what evidence the trial judge considered in reaching the conclusion that Hale was the winner and that the contestants’ claims were due to be dismissed. Statements made by the trial judge included in the record after our remand do not help us in determining what evidence the trial judge used to reach his conclusion that “Hale still received the majority of votes.” See 752 So.2d at 1120. We have searched the record in an attempt to determine what evidence he based his calculations on. We find no help in the following exchange, which took place during the hearing that the trial judge conducted after our remand and in which he attempts to explain how he reached the result he did:

“THE COURT: ... When I did my count, I came up with a different set of numbers from what y’all did. I don’t know if it would help anything for me to give you the totals that I came up with or if it would just confuse you. And I’ve hesitated to mention it, but, you know, both sides agreed that it might help something or that maybe it won’t have any effect at all, but I have a total as to the votes I counted, the ones that were in — don’t agree with the numbers that all of y’all came up with. And I don’t understand it and maybe it’s best that it just stay right here in my notes. I don’t know.

“MR. DRAKE [counsel for contestee]: We’d like to know.

“MR. AGRICOLA [counsel for contestants]:

We would, too, Judge.

“THE COURT: All right. I came up with 88 votes for Woodward and 50 votes for Hale. The difference being 33 votes, being within the 37[-vote margin of Hale’s victory as declared by the Board of Supervisors/Canvassing Board for Jefferson County on November 6, 1998], and that’s the reason that I maintained that Hale was still the winner.

“MR. JORDAN [counsel for contestants]:

Judge, that’s 183 votes.

“THE COURT: I know.

“MR. JORDAN: And the inventory in the record and what’s in the box says it was 115.

“MR. LANGNER [counsel for contes-tee]:

Well, that clearly indicates that there may be some of those Bessemer on-site ballots that were marked that we are talking about right here.

“MR. JORDAN: I don’t think — I actually don’t think they were requested to be delivered on December 29th.

“THE COURT: Well, I will say this: These votes — I mean these numbers I came up with reflected one or two convicted felons that I took a vote away from Hale, I believe. And reflected six non-registered voters, as per the registrar’s office, and beyond that I can’t say. I’ve looked at my notes and it doesn’t help.

“And it could be just a miscount on my part. But I don’t know why I would have [come] up with that. And I know of the 115 I recall that — all of the 115 were not due to be counted; some had nobody marked at all.

“MR. JORDAN: That’s correct.

“THE COURT: Something like 101, I think, that were.

“MR. JORDAN: Well, I think our count was about 7, 5 to 7, something like that.

“THE COURT: I had about 14 that I think I found that were not due to be counted. Well, I don’t know what that does. I just apologize that I didn’t make more specific notes. All right, anything else y’all want to put on record?

“MR. JORDAN: The only reason I asked you to come out, Judge, was to get clarification about these boxes that were brought by the deputies and I think we have more materials to continue to go through.

“THE COURT: All right, gentlemen. Well, I’ll let you get back to your work.”

(3d Supp. R. at 20-23.)

Based upon this excerpt from the record, we find it apparent that the trial judge could not explain how he arrived at the conclusion that he did, and our examination of the evidence shows that he made a grievous error in his calculations. If the 115 “on-site” absentee ballots represented “every single uncounted ballot” that the judge referred to in his dismissal order, then he was clearly wrong. If “every uncounted ballot,” the phrase used by the trial judge in his dismissal order, included the 25 Bessemer Division ballots, Hale would not be the winner. Hale does not attempt to justify the finding of the trial judge on these 25 Bessemer Division votes, but he argues that there were 23 absentee affidavits in the Bessemer Division where the voter did not mark the box in the “on-site” affidavit and that those 23 ballots could explain how the judge reached his conclusion that Hale won. At oral argument, members of this Court questioned the attorneys about these ballots.

We have carefully searched through each of the exhibits, and we have carefully read the depositions and the transcript of the hearings. The only conclusion we can draw from our review is that the trial judge’s statements that he added “every single uncounted ballot and added the totals to Woodward and Hale” and that doing so supported his finding that “Hale still received the majority of votes” are without supporting evidence.

VI. Security for costs

The contestee argued, even before our remand, that the trial court lacked jurisdiction because the contestants failed to file security for the election contest as required by law, that is, security that was approved by the circuit clerk. See § 17-15-29, Ala.Code 1975. The contestee’s argument is that the statute requires the clerk to approve the security and that the contestants never posted the $25,000 security that the clerk required.

The record shows that the trial judge recognized the dispute relating to filing the proper security for costs; however, he refused to dismiss the election contest on these grounds, and our review of the record, convinces us that the trial judge did not err in refusing to grant the contestee’s motion to dismiss that was based on these grounds.

VII. The contestants’ argument that this Court should render a judgment

As mentioned above, the contestants argue that this Court, based on the record before us, should render a judgment in their favor. It would be improper for us to do so at this time. As the contestee points out, this matter was dismissed by the trial judge at a relatively early procedural stage. Our review of the record shows that after the contestants filed their notice of election contest, the trial judge held hearings on December 14, 16, and 29, 1998, at which various preliminary and procedural matters were raised by the parties and considered by the judge. At the December 29 hearing, the judge asked the attorneys for the contestants to specify the evidence they would need to move forward with their case. They gave the judge a description of the evidence that they believed was necessary, and he subsequently ordered that that evidence be delivered to him.

The trial judge, in consultation with the parties, set a trial date of January 6, 1999. The court reconvened before that trial date, however, on January 4, and on that date the judge entered his order dismissing this case, stating as his grounds that he had “counted every single uncounted ballot and added the totals to Woodward and Hale” and that “Hale still received the majority of votes.” As we have shown, this finding is not supported by the record. Because of that erroneous finding, we could reverse the judgment of dismissal and render a judgment, except for the request filed by the contestee Hale that he be allowed to show that illegal votes for Woodward were counted and that they should not have been counted, and that this issue is still a viable one.

We note from the record in support of this claim by Hale that, on December 22, 1998, he did file a “Notice of Nature of Evidence,” consistent with § 17-15-21, Ala.Code 1975, listing 23 voters who he alleged had illegally cast votes for Woodward. That document stated:

“Comes now, Mike Hale, the Contes-tee in the above-styled cause and files this his notice of nature of evidence pursuant to § 17 — 15—21[, Ala.Code 1975]. At the trial of this election contest which is scheduled to begin January 6, 1999, the Contestee will present evidence to show that the following persons voted illegally for Jim Woodward at the Bailey Criminal Justice Center on site voting center.”

There follows a list of 21 names. The document also stated: “Additionally, the Contestee intends to prove that the following persons voted for Jim Woodward illegally at the on site center in Homewood.” There follows a list of 2 names. Because the trial court dismissed this case before the trial of this election contest began, the contestee did not have an opportunity to present evidence relating to the alleged 23 voters he claimed illegally voted for Woodward.

Likewise, the contestants, because of the dismissal of the case, never had the opportunity- to present evidence concerning votes that they had previously alleged were illegally cast for Hale.

The contestants now argue that the con-testee is not entitled to present any evidence because he did not file a cross-contest, but the contestee correctly points out that the statutes do not require that he file an independent “cross-contest.” Section 17-15-1, Ala.Code 1975, provides:

“The election of any person declared elected to ... any office which is filled by the vote of a single county ... may be contested.... ”

(Emphasis added.) Under the language of the statute, then, only the election of a “person declared elected” may be contested. Because Woodward had not been declared the winner of the sheriffs race, the statute did not authorize Hale to file an election contest. Section 17-15-32, Ala. Code 1975, provides:

“If, on the trial of the contest of any election, ... it shall appear that any person other than the one whose election is contested, received or would have received, had the ballots intended for him and illegally rejected been received, the highest number of legal votes, judgment must be given declaring such person duly elected.... ”

In light of these statutes, we conclude that the contestee is not prohibited from introducing such evidence of votes cast illegally for Woodward. Neither are the contestants foreclosed from offering any other evidence of illegal votes that they claimed were cast for Hale.

This question remains: In view of the state of this record at this time, what action should this Court take? We note the principle that where a motion to dismiss is supported by matters outside the pleadings, the motion to dismiss may be considered by the trial court as a motion for summary judgment. Graveman v. Wind Drift Owners’ Association, Inc., 607 So.2d 199 (Ala.1992). We could, accordingly, upon our conclusion that the judgment of the trial court is due to be reversed, proceed to render a judgment in Woodward’s favor and declare him the winner of the election, as the contestants request and as the law permits, it being well settled that this Court has the authority to render a judgment contrary to a judgment entered by the trial court, provided that all the facts bearing on the issue in question are before this Court and establish that the party is entitled to a judgment as a matter of law. Indeed, § 12-22-70, Ala.Code 1975, provides:

“The appellate court may, upon the reversal of any judgment or decree, remand the same for further proceedings or enter such judgment or decree as the court below should have entered or rendered, when the record enables it to do so.”

Although we have held that § 12-22-70 is simply a codification of an appellate court’s inherent powers, Barnes v. Dale, 530 So.2d 770 (Ala.1988); see also Jefferson County v. Busby, 25 Ala.App. 449, 148 So. 415 (1933), it is nonetheless an accurate statement of the law. Further, we note that this Court has, in the past, rendered judgments in cases that were before this Court on appeal from summary judgments. See, e.g., Nationwide Ins. Co. v. Nilsen, 745 So.2d 264 (Ala.1998); and Jefferson County v. Alabama Criminal Justice Information Center Comm’n, 620 So.2d 651 (Ala.1993).

There are restrictions on the power of this Court to render a judgment, however. For example, for an appellate court to render a judgment, the record must demonstrate that all facts on the issue in question are before the appellate court, and those facts must establish that the party is entitled to a judgment as a matter of law. With regard to the question of the issues now before us involving the absentee ballots and materials before us, we believe that we can render a final judgment, and we find support for that position.

In Fabric v. Provident Life & Accident Insurance Co., 115 F.3d 908 (11th Cir.1997), the United States Court of Appeals for the Eleventh Circuit discussed the federal appellate courts’ practice of entering a summary judgment, which is similar to our practice of rendering a judgment. Although the terminology used by the federal appellate courts is different from the terminology historically employed by the appellate courts of this state, the practice is essentially the same. The court wrote:

“The power of an appellate court to order summary judgment for a party who did not move for it in the district court has been widely recognized by circuit courts and other authorities, including our predecessor, the Fifth Circuit, in a decision binding on us. Black Warrior Elec. Membership Corp. v. [Mississippi] Power Co., 413 F.2d 1221, 1226 (5th Cir.1969); see, e.g., Dickeson v. Quarberg, 844 F.2d 1435, 1444, n. 8 (10th Cir.1988); Martinez v. [United States], 669 F.2d 568, 570 (9th Cir.1981); Morgan Guar. Trust Co. v. Martin, 466 F.2d 593, 600 (7th Cir.1972); Garner v. Memphis Police Dept., 8 F.3d 358, 366 (6th Cir.1993); In re Continental Airlines, 981 F.2d 1450, 1458-59 (5th Cir.1993); Uzzell v. Friday, 547 F.2d 801, 805 (4th Cir.1977), vacated on other grounds, 438 U.S. 912, 98 S.Ct. 3139, 57 L.Ed.2d 1158 (1978); Viger v. Commercial Ins. Co., 707 F.2d 769, 774 (3rd Cir.1983); Procter & Gamble Indep. Union v. Procter & Gamble [Mfg. Co.], 312 F.2d 181 (2nd Cir.1962), cert. denied, 374 U.S. 830, 83 S.Ct. 1872, 10 L.Ed.2d 1053 (1963); First Nat’l Bank v. Maryland Cas. Co., 290 F.2d 246, 251 (2nd Cir.1961); Mullen v. St. Paul Fire & Marine Ins. Co., 972 F.2d 446 (1st Cir.1992).

“Summary judgment in favor of a non-moving party has become an accepted method for an appellate court to expedite litigation. Morgan Guar. Trust Co., 466 F.2d at 600. There the court found that its grant of summary judgment to a non-movant was ‘just under the circumstances’ in light of a fully developed factual record and was consistent with 28 U.S.C. § 2106. That section provides:

“ ‘The Supreme Court or any other court of appellate jurisdiction may affirm, modify, vacate, set aside or reverse any judgment, decree, or order of a court lawfully brought before it for review, and may remand the cause and direct the entry of such appropriate judgment, decree, or order, or require such further proceedings to be had as may be just under the circumstances.’

“Professor Moore explains that an appellate court may properly grant summary judgment for the non-moving party as long as all facts bearing on the issue in question are before the court and establish that the non-movant is entitled to judgment as a matter of law. 6 James Wm. Moore et al., Moore’s Federal Practice ¶ 56.12; see also 10 Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice & Procedure § 2716 (2d ed.1983).”

115 F.3d at 914-15. In Fabric, the court carefully pointed out that the entry of a summary judgment in that case would not result in procedural prejudice to the opposing party, and it noted a principle of law that also governs our consideration of whether to render a judgment:

“If a party did not have an opportunity to present his side of a dispute, granting summary judgment for a non-moving party would be improper. E.g., Fountain v. Filson, 336 U.S. 681, 69 S.Ct. 754, 93 L.Ed. 971 (1949) (the circuit court improperly ordered summary judgment on a new issue for the non-moving plaintiff where his opponent was deprived of an opportunity to dispute facts relevant to the issue).”

115 F.3d at 915.

VIII. Conclusion

We conclude that the ultimate question of fact the trial court must determine is which candidate received “the highest number of legal votes” in the sheriffs election. In the present posture of the case, we cannot render a judgment, as the contestants ask us to do, because we cannot be certain that our doing so would not be proeedurally prejudicial to the contestee. Nevertheless, we are convinced that the trial court’s January 4, 1999, order of dismissal is due to be reversed and the cause remanded for further proceedings. We are also convinced that this Court should retain jurisdiction of this cause to render such further orders as might be necessary to make sure that the ultimate issue in this case is justly reached and decided.

Because of the strong public policy that the rightful winner of an election should occupy the office to which he was elected, the trial court is directed to conduct, within 14 days after the date on which this opinion is released, such further proceedings as are necessary to allow the parties to introduce any evidence they may have concerning votes they allege were illegally cast in the election for sheriff of Jefferson County. When those proceedings are concluded, the trial court is instructed to enter a judgment, as required under § 17-15-32, which shall include a calculation of the total number of votes legally cast for the contestant and the total number of votes legally cast for the contestee, and the trial court is further instructed to enter a detailed statement of findings of faet that it considers in reaching its judgment. Any judgment rendered shall be forwarded forthwith to this Court, together with any record of the proceedings conducted on remand. Further, the trial court shall stay the enforcement of its judgment pending this Court’s review. This Court specifically retains jurisdiction of this case for the purposes set out. The parties are directed to file any additional briefs they deem necessary within seven days from the date on which the trial court enters its judgment as herein directed.

REVERSED AND REMANDED WITH DIRECTIONS.

HOOPER, C.J., and MADDOX, HOUSTON, SEE, and LYONS, JJ., concur.

JOHNSTONE, J., concurs specially.

COOK, J., concurs in the result.

BROWN, J., recuses herself.

. At its conference on August 10, 1999, this Court systematically examined each of the exhibits for relevant evidence. Exhibit 7, a manila envelope alleged by the parties to contain files compiled by the Jefferson County Sheriffs department in the course of a voter-fraud investigation, was not unsealed.

Coincidentally, on that same day Hale filed with this Court a motion to supplement the record, attaching to the motion what appears to be a copy of an indictment of Woodward. Subsequently, the contestants filed a response to that motion. The motion to supplement the record is due to be denied because we have not examined Exhibit 7 and because the fact that Woodward may or may not have been indicted does not in any way alter the vote count that is the subject of this appeal.

. The contestee Hale insisted that these 25 Bessemer Division absentee ballots be examined at the July 8, 1999, hearing before the trial court; however, at oral argument, the contestee contended that we should not consider these 25 ballots.

. See note 11, infra.

. The following statement made by Hale’s counsel appears in the record, at page 54 of the transcript of Carter’s deposition:

"Mr. Carter, some of the lawyers involved in this election contest went over to the vault on Wednesday and we obtained 48 on-site absentee voting envelopes which, of course, contain the affidavit and contain this box that we have been talking about. In that process, we discovered the affidavits of Edna Mae Walker and William H. Walker, Sr. And it appears that they did not check the box, but since the envelope had been opened, we lawyers assume that the ballot was counted."

(Emphasis added.)

Mr. Carter did not testify to any specific recollection as to whether the Walkers' ballots had been counted. However, we note that, at least at the time of Mr. Carter's deposition, counsel for the contestee had reached the same conclusion regarding the Walkers’ "on-site” affidavit envelopes that counsel for the contestants argue before this Court regarding the 23 "on-site” affidavit envelopes at issue here, which, like the Walkers’ “on-site” affidavit envelopes, were discovered by the attorneys opened and with their ballots removed— that is, the conclusion that the ballots were counted.

. Although the statute makes no provision for the inclusion of a box or space for a voter to check or mark on an "on-site” absentee ballot, it is plain that the ballots in Jefferson County included such a box. Why was the box included? There is some evidence in the record on this issue, but we find it is unneces-saiy to determine why and under what circumstances this occurred, because the Legislature did not require a box or space for the absentee voter to indicate the obvious, that each was stating that he or she would "be out of the county or state on election day.”

. Ala. Acts 1996, 2d Ex.Sess., Act No. 96-885, p. 1699, § 6.

. See, also, Roe v. Mobile County Appointment Bd., 676 So.2d 1206, 1253 (Ala.1995) (Maddox, J., dissenting).

. Similarly, poll workers in the Bessemer Division, except as to two ballots we find did comply, followed the requirements of the law when they did not count ballots contained in affidavit envelopes that did not comply with the provisions of § 17-10-10. See section II, supra. "On-site” absentee ballots included in envelopes that did not have a check in the box by the only reason for voting absentee, however, were properly counted. See, section III, supra.

. We counted those 25 absentee ballots from the Bessemer Division. Hale received 18 votes and Woodward received 7. As we have discussed in this opinion, 23 of these 25 absentee ballots should not have been counted, but even if the trial judge counted each of these ballots, Woodward would have been the winner. We reach this conclusion, as follows: Before the contest was filed, the vote totals were 106,269 for Hale and 106,232 for Woodward, a 37-vote margin. If one adds 79 of the 115 ballots in the Birmingham Division to Woodward’s total, and 27 of those to Hale's total, the result would have been 106,311 for Woodward and 106,296 for Hale, or a 15-vote difference in Woodward’s favor.

Adding the Bessemer Division ballots to these totals does not alter the result. Of the 25 Bessemer Division ballots, 7 showed votes for Woodward and 18 showed votes for Hale. (Of these 25 ballots, however, as we have stated, only 2, both of which showed votes for Hale, were actually due to be counted. The remainder of the ballots for Hale and all of the ballots for Woodward were not due to be counted, because of noncompliance of the affidavits associated with those ballots.) Adding those votes to the totals given above would result in a vote of 106,318 for Woodward and 106,314 for Hale, yielding a 4-vote difference in Woodward’s favor.

. See section III, supra, of this opinion for further discussion of this issue.

. At oral argument, the following exchange took place:

"MADDOX, J.: [Addressing contestants' counsel]

You may have covered this, but I am interested in the record of the hearing that was held on July 8, the most recent hearing after remand — there's some mention in the record about some lost ballots, lost affidavits. Do these seven exhibits here contain all the records that the trial judge reviewed in making his January 4 order?

"MR. JORDAN: Yes.

"MADDOX, J.: They do?

"MR. JORDAN: Absolutely. In fact, the proceedings — the proceedings before the judge involved the judge helping to have the materials brought to the courtroom. He said, and we asked him — are these all the materials that you reviewed? And I believe that's — it occurred both on and off the record. It's definitely on the record, but I'm saying it occurred additional times off the record. And, there were additional checks made. In the transcript of proceedings, it doesn't include testimony from the judge, in that sense, but it includes statements from the people, with everybody assembled that not only is this everything, but we did a check and we went to the vault.

"MADDOX, J.: OK, so we can conclude from that that the trial judge used these records in order to make the determination and finding that he made in the January 4th order that he had counted all the uncounted ballots and that Hale still won?

"MR. JORDAN: He said in his order that he had counted all the on-site ballots.

"MADDOX, J.: All right.

"LYONS, J.: Mr. Jordan, let me probe this a little further. There are clearly some absentee ballots that are not in that box. Now, you maintain that these ballots were not there because they were voted and counted. Is that correct?

“HOOPER, C.J.: The Bessemer box.

"LYONS, J.: The Bessemer box.

"MR. JORDAN: Right, right.

“LYONS, J.: The absence is explained by the fact that they apparently had to be counted.

"MR. JORDAN: That’s the only way they could get in the box.

"LYONS, J.: Right. Now, is there a contrary contention from your adversaries to the effect that these boxes — these votes were there when the judge looked at things and they’re somehow now missing? Are we going to hear that from the other side?

"MR. JORDAN: I don’t believe so with respect to the inference to be drawn by the emptiness of an affidavit envelope— the unsealing of an affidavit envelope. For instance, there are not — we didn't see any affidavit envelopes in this material that is unsealed that does not contain a ballot in it. And the reason is that when the chief inspector of the absentee voting place — and this is not in the record, but it's common sense — they open them, they pull them out, they separate them, and then after they separate them they take the ballots and feed them through the counter machine. And so you’re left with the empty affidavit envelope.

"SEE, J.: In fact, by statute aren’t they required to do that?

"MR. JORDAN: Absolutely.

"SEE, J.: And if they were to have removed those ballots and not counted them, they would have — that is if they had determined that these ballots were not to be counted and nonetheless opened them and removed them from the affidavit envelopes, they would have been violating the law?

"MR. JORDAN: [Section] 17-10-10 says exactly that in the first sentence in the second paragraph.”

Mr. Drake, counsel for the contestee, responded to this discussion when he presented his argument:

“MR. DRAKE: Mr.'Jordan and Mr. Agríco-la found 23 [on-site absentee affidavits with the box unchecked] that were opened. And, the ballots were missing. It is logical to me to conclude — he concluded that they must have been counted on election night — it’s just as logical to me to conclude that Judge Wynn opened them and counted them. We had pointed out to him—

"LYONS, J.: And then lost them?

"MR. DRAKE: Yeah. And lost them.

"HOOPER, C.J.: How'd that happen?

"MR. DRAKE: I don’t know. I think that makes as much sense as saying that they were opened on election night and counted. Because we've got the testimony — • the emphatic testimony — that they were not counted.

"HOOPER, C.J.: How does a judge lose those things? That would puzzle me. I’ve been one of those.

"MR. DRAKE: Well he took things home with him. I don’t know. I don’t know what happened.

"HOOPER, C.J.: He took evidence home?

"MR. DRAKE: Yes. He took all of this stuff home with him, over the Christmas holidays and over the New Year's holidays.

"HOOPER, C.J.: I see.

"MR. DRAKE: And, I don't know if he lost it. But they don't know if the ballots were counted or not, either. And, I'm just saying that that speculation is offset by another speculation that's just as reasonable for two reasons. One is, you’ve got Earl Carter's testimony that's unrefut-ed that the ballots were not counted. And, second, if you take those 23 ballots and assume that 21 of them were for Mike Hale, you come up with a difference of 4. And that’s what Judge Wynn said was the difference. And that makes as much sense as anything.

“LYONS, J.: So he made a mathematical mistake with 4 votes and he lost the other ballots?

"MR. DRAKE: No. I’m not saying he made a mathematical mistake. I'm not saying — I'm not assuming that all 23 of those votes went to Hale. They may have.

"LYONS, J.: OK. What you’re saying is when he counted them, that's how he came to his math.

"MR. DRAKE: I’m saying if you assume 21 of them were for Hale—

"LYONS, J.: I see.

"MR. DRAKE: — and then you subtract or give those two votes, that difference, to Woodward, you come up with a difference of 4, with Hale winning, which is exactly what Judge Wynn's count was.

"MADDOX, J.: So, the record does not reflect who in fact opened those ballots?

"MR. DRAKE: There is nothing in the record to indicate who opened them.

"MADDOX, J.: What inferences were drawn by the trial judge as to who opened them?

"MR. DRAKE: I beg your pardon?

"MADDOX, J.: What inference did the trial judge make in making his determination about the vote totals?

"MR. DRAKE: We don’t know. There’s nothing in his order about that. There's nothing in his order saying who opened them or whether he opened them. I think we assume that he opened — I mean I assume that he opened the 23.

"HOOPER, C.J.: Where is the testimony in here about — Earl Carter testifying that they were not counted?

"MR. DRAKE: His deposition is in the record. We took his deposition and it’s in the record, and in my original briefs I would have cited to that page.

"HOOPER, C.J.: OIC

"LYONS, J.: When Earl Carter testified, I assume he testified that there were 23 on-site ballots that did not have the box checked and for that reason they were not counted. Is that the essence of his testimony?

"MR. DRAKE: No. My recollection is that he didn't know how many weren’t counted. He just simply said we didn’t count any of them.

"LYONS, J.: OK. He said we didn't count any.

"MR. DRAKE: Right.

"LYONS, J.: And you then — in order to— where does the number 23 come into the picture?

"MR. DRAKE: Twenty-three is the number that they found in looking at the absentee ballot envelopes from Bessemer that did not have the box checked and the ballots were missing.

"LYONS, J.: OK, so we've got the 23 affidavits without the box checked, but they don't have the ballots with them.

"MR. DRAKE: Right.

"LYONS, J.: So the big mysteiy is where are the ballots?

"MR. DRAKE: Right.

"MADDOX, J.: I have before me a photocopy of plaintiff's exhibit number 4, and it’s marked plaintiff's 4 — Carter. Would that be an exhibit to his deposition?

"MR. DRAKE: Yes.

"MADDOX, J.: It appears to be a copy — a photocopy — of the affidavit envelope.

"MR. DRAKE: Yes.

"MADDOX, J.: Do you know whether or not that exhibit at the time that deposition was taken was opened or unopened?

"MR. DRAKE: I don’t recall. It may have been not a form, but one that wasn't used. You know? I don’t know. I don’t know. But, I offer that explanation as one way that Judge Wynn got to his 4.”