concurring.
I concur with the conclusion that the contestants cannot prevail in this election contest suit. I write separately to expand upon some points which are not, in my view, adequately developed in the main opinion.
The pleadings in a suit to contest an election are critically important, particularly the allegations of fact on which the claim for relief is based and the relief sought. A contest may be based on the allegation that the election was valid as well as the allegation that the election was void. The contestant may limit the relief sought to a determination that the contestant is entitled to be declared the winner of the election or to an adjudication that the election is void. Tenn. Code Ann. § 2-17-112 (1994). The contestant may seek relief in the alternative, that the contestant be declared the winner or that the election be declared void. A contestant may also seek a recount of the ballots cast in the election. However, the relief sought must be consistent with the allegations of fact, and, if the allegations of fact and the relief sought are not consistent, the suit may be dismissed for failure to state a cause of action on which relief can be granted. Tenn. R. Civ. P. 12.02(6). If the proof does not support the relief sought, the suit will be dismissed, even though the proof may support relief which is not sought. For instance, the contestant in Forbes v. Bell, 816 S.W.2d 716 (Tenn.1991), sought a declaration that she was the winner upon the allegations that “the wholesale disregard of the election laws” resulted in 861 illegal ballots. The Court noted that because the complaint did not set forth the number of votes each candidate received “we have no way of determining whether the number of allegedly illegal votes equals or exceeds the margin of [the contes-tee’s] victory.” The Court held, “[t]his omission alone is fatal to Forbes’s claim that she should be declared the duly elected winner” and affirmed the dismissal of the complaint for failure to state a cause of action. Id. at 719.
The contestant cannot be declared the winner upon the allegation that the election was void; the only relief available is a new election. In Emery v. Robertson Co. Election Comm’n, 586 S.W.2d 108 (Tenn.1979), the election was declared void and a new election ordered upon the allegation and proof that fraud or other illegality so permeated the election as to render the results incurably uncertain.
The courts may also void elections upon a sufficient quantum of proof that fraud or illegality so permeated the conduct of the election as to render it incurably uncertain, even though it cannot be shown to a mathematical certainty that the result might have been different.
Id. at 109. In Shoaf v. Bringle, 192 Tenn. 695, 241 S.W.2d 832 (1951), the contestant sought alternative relief, either that the contestant be declared the party elected or a declaration that the election was void. The Court found that the proof did not support the claim that the contestant was entitled to be declared the winner but that the election was rendered void by the fraudulent and illegal acts of the election officials. The Court stated:
Such allegations in the bill as “many legal votes” and “many votes” and such general statements are entirely too general under the ground that the election was valid. Maloney v. Collier [112 Tenn. 78, 83 S.W. 667 (1904) ]. But when we come to consider the ground that the election was void because of the fraudulent and illegal acts of those holding the election such general allegations if supported by any specifically stated facts may be taken into consideration. The allegations of fraud must be supported by some specific allegation of fact.
Id. 241 S.W.2d at 835. In Millar v. Thomas, 657 S.W.2d 750 (Tenn.1983), the Court reaffirmed the holding in Emery v. Robertson Co. Election Comm’n that an election can be found void upon a showing “that fraud or *487illegality so permeated ... the election as to render it incurably uncertain, even though it cannot be shown to a mathematical certainty that the result might have been different.” Millar v. Thomas, 657 S.W.2d at 751 (quoting Emery, 586 S.W.2d at 109). In Millar, the contestant, who was defeated by a margin of 162 votes, sought a declaration that the election was void upon the allegation that 251 absentee ballots were illegal. The Court affirmed the trial judge’s finding that the technical discrepancies shown by the contestant did not render the ballots void and dismissed the contestant’s suit.
An election may also be declared void in the absence of allegations and proof of pervasive fraud or illegality. An election may be declared void upon allegation and proof that the number of invalid ballots tallied equals or exceeds the margin whereby the contestant was declared the winner.
The reported decisions of this State uniformly authorize the courts to void an election where the evidence reveals that the number of illegal ballots cast equals or exceeds the difference between the two candidates receiving the most votes. The rule is based upon the rationale that if all of the illegal votes had been east for the unsuccessful candidate the result would have been changed. In Southall v. Billings, 213 Tenn. 280, 375 S.W.2d 844 (1963), Mr. Justice White, writing for the Court, suggests that such a mathematical purging of votes renders the election void because of the uncertainty of result. Id. 375 S.W.2d at 850.
Emery v. Robertson Co. Election Comm’n, 586 S.W.2d at 108-09 (citations omitted). These decisions also show that the cause or nature of the error or irregularity that renders the ballots invalid is not determinative; they may be invalid because of fraud, honest mistake, or carelessness.
A contestant can assert the right to be declared the winner only upon the allegation that the election was valid. The claim to the office for which the contestant was a candidate must be based upon alleged errors regarding specifically identified ballots and may relate to the inclusion of invalid ballots, the exclusion of valid ballots, errors in tallying valid ballots and other errors relating to specifically identified ballots. Accordingly, the contestant is entitled to be declared the winner of the election only upon allegation and proof that the correction of errors relating to the specifically identified ballots will result in the contestant receiving a majority of the valid ballots cast. The rule was clearly set forth in Shoaf v. Bringle, 192 Tenn. 695, 241 S.W.2d 832 (1951), where the Court stated:
When we consider this case from the aspect that it was a valid election and that the petitioner, contestant, had received more votes than the contestee it becomes necessary for the contestant to show on the face of his petition or complaint that the illegal votes cast should be thrown out and that when this is done that the vote that he received plus the legal votes of which he claims to have been deprived was greater than that of the contestee. In making these allegations it was necessary that the contestant specifically point out each and every vote that was fraudulently or illegally east on behalf of the contestee and against him and that the total of these votes when taken from the contestee and added to him would give him a majority. Under the factual situation as set forth in this bill the contestant fails to show specifically that the number of votes cast illegally here if thrown out would give him a majority. Therefore, when we come to purging the polls the contestant fails to sustain his position that there was a valid election and that he received a majority of the votes. It thus appears and there is nothing else that can be done but to hold that the demurrer on this feature of the case should have been sustained by the Chancellor and the suit dismissed as to this branch of the lawsuit.
Id. 241 S.W.2d at 833.
The contestant may in certain limited circumstances be entitled to a recount of the ballots, even though the allegations would not entitle the contestant to be declared the winner. Upon allegations and proof that there were errors or irregularities relating to the tallying of ballots properly voted, that the ballots have been securely preserved and *488that the number of ballots not properly tallied equals or exceeds the margin of victory, the court may order a recount of the ballots. If, upon recount, the contestant receives a majority of the valid ballots cast, the contestant will be declared the winner. In Blackwood v. Hollingsworth, 195 Tenn. 427, 260 S.W.2d 164 (1953), in which the margin of victory was 159 votes, the contestant sought a recount of the ballots on the allegation that more than several hundred legal votes cast for the contestant were fraudulently called by the election official and credited to the contestee. The Court overruled the contes-tee’s demurrer and held that the trial court would be justified in recounting the votes, upon proof that there had been no tampering with these ballots in the meantime. In distinguishing the situation in Blackwood from that in Shoaf v. Bringle, the Court stated:
In considering whether the allegations of the petition were sufficient to withstand demurrer, this case must not be confused with one in which it is sought to overcome the official returns by alleging that illegal votes are included therein in a number sufficient to reverse the result when the official returns are purged of such votes. In that situation, as held in Shoaf v. Bringle, 192 Tenn. 695, 241 S.W.2d 832, the contestant must specifically point out the allegedly illegal votes east for the contes-tee. Otherwise, there would be no basis upon which to determine for whom those illegal votes were cast. In the instant case the contest is based upon the allegation that more than several hundred legal votes cast for the contestant were fraudulently called by the election officials and credited to the contestee. Once a ballot is placed in the box there is no way of ascertaining the identity of the person who cast it. Therefore, to require the contestant to allege in her petition the identity of the voter whose ballot was fraudulently called for the con-testee, though cast for contestant, would be to require of the contestant that which is impossible. But if the proof be sufficient to justify the Court in going behind the official returns and sufficient to conclude that an unauthorized approach to the ballots in the box has been sufficiently guarded against, then the recount of these ballots establishes the truth or falsity of the charge made as to miscalling ballots.
Id. 260 S.W.2d at 166. See also Dixon v. McClary, 209 Tenn. 81, 349 S.W.2d 140 (1961); Summitt v. Russell, 199 Tenn. 174, 285 S.W.2d 137 (1955).
In their brief, the plaintiffs state that they are not seeking to have the election declared void. The contestants allege, in effect, that the election was valid and they seek a recounting of the ballots. The contestants allege specifically that there were irregularities in the counting of the ballots. Each contestant contends that a recounting will show that the contestant received a majority of the valid ballots cast. The only evidence on this issue was the estimate by one election judge that “approximately 20 ballots per district” in all nine districts were invalidly rejected, and the testimony of another judge that the rejection practice was applied to ballots cast for the contestees as well as for the contestants but it was possible that if the rejected ballots were counted, the results of the election would have been different. This testimony is not sufficiently probative to establish that the claimed errors exceed the margins of victory. The record supports the finding that the ballots were securely preserved and that there were errors in tallying .the votes. However, it does not establish that the number of ballots improperly tallied equals or exceeds the margins of victory. This mathematical conclusion is essential to establishing the right to have a recounting. Therefore, the trial court properly found that the contestants failed to show that a recounting “would have changed the result of the election or rendered its outcome uncertain.” Forbes v. Bell, 816 S.W.2d at 724. I agree that the trial judge properly dismissed the suit.