(dissenting).
1. Violates Public Policy.
The “but for” rule violates public policy and constitutional right to cast secret ballot.
In Briggs v. Ghrist, 28 S.D. 562, 134 N.W. 321 (1912), the plaintiff alleged that the ballots were misread due to excessive markings on numerous ballots. The ballot counters apparently used their best judgment in determining which marks were votes and which marks were extraneous. This Court held that:
*454Unless the party attacking the legality of the votes alleges and proves fraud upon the part of the election officials such as to warrant throwing out the whole vote of the precinct, the burden is upon him to prove for whom the illegal votes were cast; and, if he fails to make such proof, the illegal votes shall be deducted from his vote, unless he satisfies the court that he could not, with the exercise of due diligence, show for whom the illegal votes were cast[.]
134 N.W. at 324. Applying this “but for” test would, therefore, require the plaintiff to match the specific marked up ballot to the individual voter and then ask the vote counter how the marking was tabulated. If he fails to reconcile the balloting errors, the outcome of the election will stand.
BHggs plainly states that “very clear evidence should be furnished as to how one did vote before his vote can be deducted from the total of any candidate.” Id. 134 N.W. at 322. Thus, if you cannot match the ballot to the voter, the only other method of determining how a person votes is by holding a new election.
In the case at bar, no one knows which ballots were tainted. However, we do know the identity of the individuals who cast the illegal votes. The majority relies on Briggs, demanding that Abbott show “for whom the illegal votes were cast ...” to prove “but for” the illegal votes he would have prevailed.
The only avenue for Abbott to meet this burden is to convince the 19 illegal voters to reveal their votes. However, the Constitution of the State of South Dakota states that “The Legislature shall by law ... insure secrecy in voting ...” S.D. Const, art. VII, § 3. Thus, by force of constitutional mandate, the voters do not have to reveal for whom they voted.
On the other hand, South Dakota’s rules of evidence, SDCL 19-13-19 provides:
Every person has a privilege to refuse to disclose the tenor of his vote at a public election conducted by secret ballot. This privilege does not apply if the court finds that the vote was cast illegally or determines that the disclosure should be compelled pursuant to the election laws of the state.
This statute may go beyond the bounds of the constitution; but, so far, no court has compelled these 19 people to reveal their votes. In fact, both parties agreed not to inquire. Furthermore, though their votes may have been improperly cast, there was no indication of fraud by these voters. Note the word “fraud” in Briggs, 134 N.W. at 324. This lack of mens rea could prevent the use of SDCL 19-13-19.
Pawlowski v. Thompson, 64 S.D. 98, 264 N.W. 723 (1936), seems to hold contrary to BHggs. At the school district election, election officials determined that ten (10) voters were ineligible. The ballots were discarded and not counted. Then, a new election followed without those ineligible voters. Pawlowski lost 8 to 5. The trial court determined that the ineligible voters were entitled to vote, all ten had voted for Pawlowski, and declared Pawlowski the winner. 264 N.W. at 724. This Court reversed the lower court, holding that elections are decided by the number of legal votes cast and not ascertaining what might have been cast. Id. “Where one therefore receives a majority of the legal votes cast, the opposing candidate cannot be declared elected upon evidence that legal voters would have voted for him but were erroneously denied the right.” Id. Thus, the new election was upheld.
Abbott’s situation is the same. He cannot be declared the winner upon evidence that the 19 voters voted against him. “[P]ublic policy forbids that, after it is known just how many votes are necessary to change the result ...” Pawlowski, 264 N.W. at 724. Under today’s ruling, we are substituting perplexity for precedent.
Following the “but for” rule provides an incentive to cast an illegal vote. Ineligible voters could stuff a ballot box to elect a candidate. Even when the violation is known, as in this case, the losing party is then left with the burden of proving that the illegal votes were not for him. This is an impossible task because the voters have a constitutional right to not reveal their votes.
*4552. New election in contaminated precincts is proper remedy.
In Larson v. Locken, 262 N.W.2d 752 (S.D.1978), the election resulted in 105 votes cast with three votes separating the candidates. An investigation revealed that 16 absentee ballots were invalid. This Court held that invalidating only the illegal ballots and determining the election on the remaining ballots “would not be a free and fair expression of the will of the voters” and affirmed the trial court’s order for a new election. Id. at 756. Here, a new election would resolve doubt.
Both North Dakota and Rhode Island have read Larson as holding that a new election is a proper remedy as a result of an election which is encircled with doubt. State ex rel. Olson v. Bakken, 329 N.W.2d 575 (N.D.1983); Buonanno v. DiStefano, 430 A.2d 765 (R.I.1981). This Court should observe a decision it has previously rendered. North Dakota and Rhode Island respected our 1978 decision.
In Buonanno, after a mechanical voting booth had apparently failed to record all votes, the appellate court affirmed a new election, but limited it to the two polling places where the voting discrepancies occurred. The court applied a different “but for” test holding that one cannot determine with absolute certainty what the result of an election would have been “but for” the malfunctioning of a voting machine:
[T]he contestant should not have to prove that the result would have been in fact different but for the malfunction ... A happy balance is struck by requiring the contestant to show that the irregularities were sufficiently large in number to establish the probability that the result would be changed by a shift of or the invalidation of the questioned votes. Id. at 770.
A situation almost identical to the one at bar occurred in Akizaki v. Fong, 51 Haw. 354, 461 P.2d 221 (1969). Nineteen (19) illegal ballots were commingled with the valid ballots and counted. Same number as here. Although the margin of victory was two (2) votes. The appellate court held that there was “simply no way to determine what the actual result of the election was, and who should therefore be the winner.” Id. 461 P.2d at 224. The court upheld holding a new election. Id.
Other jurisdictions have also held that a new election is the remedy when a cloud of doubt encircles the original results. Bell v. Southwell, 376 F.2d 659 (5th Cir.1967); Coalition for Education in District One v. Board of Education of the City of New York, 370 F.Supp. 42 (S.D.N.Y.1974), aff’d 495 F.2d 1090 (2d Cir.1974); Foulkes v. Hays, 85 Wash.2d 629, 537 P.2d 777 (1975); Nelson v. Robinson, 301 So.2d 508 (Fla.App.1974); Matter of Ippolito v. Power, 22 N.Y.2d 594, 294 N.Y.S.2d 209, 241 N.E.2d 232 (1968).
Certainly, the process is more efficient by declaring Hunhoff the winner because Abbott could not prove how the illegal votes were cast. However, a new election in the affected precincts is the only just way to allow for a free and fair expression of the will of the voters and eliminate any cloud of doubt. Here, the South Dakota Supreme Court picks the winner. Rather, the people have that right.