FOULKES V. HAYS
537 P.2d 777 (1975)
NATURE OF THE CASE: This is an appeal from an order granting Foulkes' (P) 'motion to
correct election fraud or error' and setting aside the results of a recount in an election
for county commissioner. Hays (D), the winning candidate in the recount, appeals its
nullification and P the winner in the original tally, cross-appeals the court's refusal to
reinstate it and order of a new election.
FACTS: Hays was the incumbent and Foulkes (P) the challenger in the November 1974 Adams
County commissioner race. The first tally established Pas winner by 37 votes out of 3,025.
Hays (D) requested a recount. The recount was held 14 days after the results of the initial
count and resulted in Hays being declared elected by 71 votes. Almost all of the change in
the results came from 12 of the 30 county precincts. P alleged that some votes counted for D
in the recount were marked by someone other than the voter after the original count was
completed. After a hearing the trial court dismissed the election contest holding that any
ballots altered between the time of the original count and the recount were not 'illegal
votes' within the meaning of subsection (5) of that section. It refused, however, to dismiss
P's 'motion to correct election fraud.' Testimony from experts was contradictory. The court
eventually concluded the election officers had been guilty of 'neglect of duty' in failing
to properly safeguard the ballots. The court determined that the proper remedy for this
neglect was the holding of a new election. From that determination these appeals were taken.
ISSUE:
RULE OF LAW:
HOLDING AND DECISION:
LEGAL ANALYSIS:
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