dissenting.
On November 4, 1980, a referendum election was conducted in Johnson City to determine whether the sale of liquor by the drink should be permitted in the city. The *120certified result of the election was: 6,646 votes in favor of the sale of liquor by the drink, 6,640 votes opposed to the sale of liquor by the drink. The dry forces brought this action contesting the election and contending that it was void because at least 18 registered voters who were qualified to vote in the referendum attempted to vote therein but were denied that right by the polling officials because the names of these voters did not appear upon poll lists which the Election Commission had furnished to the polling officials as representing those eligible to vote in the referendum. The case was tried before the Chancellor who declared the election to be void. The Washington County Election Commission appealed to this Court.
As found by the Chancellor, it is well established in the record that at least 18 registered voters who were fully qualified to vote in this referendum election appeared at the polls and attempted to vote in the referendum but were rejected because their names did not appear upon the poll lists furnished by the Election Commission to the polling officials purporting to list the persons entitled to vote in the referendum. I cannot accept the argument of the majority opinion that these rejected voters lost their right to vote because of their supposed “failure to protest” as provided by the second paragraph of T.C.A., § 2-7 — 112(a). First, there is no showing that the polling place officials explained and pointed out to these qualified voters what, if anything, they were required to do, under the circumstances, to be enabled to vote. Clearly it was the duty of the polling place officials to make such explanation to these rejected voters; these were the officials who were holding the election. Secondly, the argument that these voters lost their right to vote by their “failure to protest” is one which was not made in the trial court or in this Court.
Since the number of legal votes thus rejected (18) exceeded the margin of victory (6), the result of the election is rendered incurably uncertain under the rule that applies in such situations. Lanier v. Revell, Tenn., 605 S.W.2d 821 (1980); Emery v. Robertson County Election Commission, Tenn., 586 S.W.2d 103 (1979); Maloney v. Collier, 112 Tenn. 78, 83 S.W.Rptr. 667 (1904).
Conceding that 18 voters were denied their right to vote in this referendum election, the Election Commission argues that the voters were rejected, not because of fraud or any other improper conduct on its part, but, solely because of accident and inadvertence which it tried mightily to avoid. Indeed, the Chancellor found that the Election Commission had exerted “Herculean efforts” to assure to every qualified voter the right to vote in the referendum.
We have held, however, that proof of actual fraud is not required to void an election. Emery v. Robertson County Election Commission, supra. It is generally held that an election is void if enough persons were unlawfully deprived of the opportunity to vote, or if enough legal votes were thrown out, to change the result; but, the election will not be vitiated by exclusion of lawful votes if such exclusion could not have changed the result. Maloney v. Collier, supra; Kempen v. Bruns, Tex.Civ.App., 195 S.W. 643 (1917); Carville v. McBride, 45 Nev. 305, 202 P. 802 (1922); Mayberry v. Gaddis, 88 Okl. 286, 213 P. 316 (1923); 29 C.J.S. Elections § 211 (1965); 26 Am.Jur.2d Elections § 278 (1966). If it appears that the number of legally qualified voters who were prevented from voting, or whose votes were rejected by reason of fraud, bribery, mistake, negligence or erroneous decision of the election officers, is so great that it might have changed the result of the election if such voters had been allowed to cast their votes and have them counted, the election should be declared void. Callison v. Peeples, 102 S.C. 256, 86 S.E. 635 (1915). Corruption or fraud is not necessary where enough voters to change the result have been disfranchised. Coggeshall v. Des Moines, 138 Iowa 730, 117 N.W. 309 (1908); Marsden v. Troy, Tex.Civ.App., 189 S.W. 960 (1916).
I, therefore, conclude that the Chancellor was correct in holding that the election was void because of the rejection of at least 18 duly registered and qualified voters, there*121by rendering the outcome of the balloting incurably uncertain. There is no escaping this result although it does appear that the rejection of these voters was the result of mistake in failing to recognize them as bona fide residents of the city of Johnson City and, thus, qualified to vote in the referendum.
There is no merit in the insistence of the defendant Election Commission that the complaint should have been dismissed because the Chancellor permitted the plaintiffs to amend the complaint more than ten days after the election by adding as a necessary party defendant the Carter County Election Commission. There is no reversible error in such action even if we consider that the Carter County Election Commission was an indispensable party.1 Rule 21, T.R.C.P., provides that parties may be added on such terms as are just and that mis-joinder is not a ground for dismissal. Moreover, in Austin v. Mayfield, Tenn., 611 S.W.2d 824 (1981) we held that the trial court had erred in not allowing an amendment filed more than ten days after the election.
I would affirm the decree of the Chancellor and remand this cause to the trial court for further appropriate proceedings. I am authorized to state that my brother, COOPER, joins in this dissenting opinion.
. “If said municipal corporation includes territory in two (2) or more counties, such election and all other municipal elections of such municipal corporation shall be called and conducted by the county election commission of the county in which said town seat or city hall is located.” T.C.A., § 6-53-101.