dissenting.
In today’s opinion the court pronounces that whenever it is impossible to determine the outcome of an election with mathematical accuracy1 a new election must be ordered. Viewing the proof adduced below as insufficient to conclude that the outcome of the judicial race here in contest is incapable of ascertainment with mathematical certainty, the court pronounces that Smith, the losing candidate, is not entitled to a new election. While the court declines today to address. Smith’s recount quest, pressed by him below but not reasserted before us,2 it notes that under state law3 a recount may not be conducted if the ballots have not been properly preserved.
For the purpose of my writing I assume — and accept without critical re-examination — that (a) the court’s opinion in a companion case, Henderson v. Maley,4 in which I stand recused, correctly denies a losing candidate’s recount quest because the ballots were not properly preserved and (b) had Smith pressed his claim for review of the recount’s denial, he would not have been successful. It is neither my intention nor desire to affect the court’s resolution of that issue — one which is reached for decision in the other case.
I cannot accede to the view that the relief of another election, afforded Smith below, should be set aside in this proceeding. Compelling legal reasons clearly militate against disturbing that decision. If, as in this case, (1) a timely and legally sufficient recount claim is pressed, (2) which is coupled with an alternative plea for another election, and (3) a recount cannot be had because of the government officials’ failure to preserve the ballots in conformity to the statutory requirements, the mere impossibility of having a recount becomes the functional equivalent of an inconclusive tally, so that the outcome of the contest is one that may not be determined with mathematical certainty. This event alone triggers the petitioner’s state-created due process rights which compel *622the granting of another election. The government’s failure to account for the honesty of its initial count is a significant post-election irregularity which makes the outcome of the race incapable of being determined with mathematical accuracy and hence warrants another election.
I
THE CANDIDATE’S CONSTITUTIONAL CLAIM TO A FREE ELECTION AND A FAIR COUNT OF THE VOTES ON A TIMELY AND LEGALLY SUFFICIENT RECOUNT PETITION
The election process is a function of the Executive Department. It has both administrative and adjudicative components. The conduct of an election,5 including the tallying of the vote and the secure preservation of the ballots,6 may be characterized as purely executive. The recount is a two-step process. The first stage — a determination whether the ballots had been properly preserved — is judge-supervised;7 the actual recount after a proper showing has been made is purely ministerial.8 Challenges based on fraud or irregularity call for application of adjudicative process.9 When a recount is denied for the government’s failure to preserve the ballots in conformity to the statutory requirements, extant case law, which I deem constitutionally flawed, holds that the executive decision supplying the tally becomes final even though it escaped the judicial scrutiny to which it would have been subjected if recount had been possible.10
I would condemn as constitutionally infirm any notion that lingers in both our statutory and case law which would allow the state to so control the election process that, by its own act of dereliction, it could cause the recount to be withheld and to thus force its executive tally to prevail against the announced loser. This kind of arbitrary state action is plainly violative of due process. It serves as a blueprint for inviting corruption in the conduct of elections. I cannot countenance a norm of law that provides the government with an escape hatch that readily places its officials and their conduct of election beyond the legislatively designed parameters of judicial supervision.11
A. State-Created Rights and Their Protection By Federal and State Due Process Clauses
States create rights by their common law, constitution or legislative law.12 Once those rights stand created, federal and state due process clauses 13 surround *623them with due process protections against arbitrary action of government.14 Oklahoma election laws plainly create a right to a recount of the ballots for any candidate who has initiated a timely and sufficient quest for that relief.15 Due process plainly affords the election loser an opportunity to make the government prove the honesty of its count. When a timely and legally sufficient recount claim is prevented or thwarted by misfeasance or nonfea-sance of the election officials — intentional or unintentional — due process stands denied. The mere impossibility of a requested recount triggers the due process protections when the government is unable to give an account of its election conduct by proof that the outcome is supported by the ballots that were validly cast.
Moreover, while election conduct is not subject to the Administrative Procedures Act [APA],16 those portions of the APA which embrace due process concepts are binding on agencies exempt from its provisions. Cf. Braun & Co. v. Corporation Commission;17 Harry R. Carlile Trust v. Cotton Petroleum;18 Amoco Production v. Corp. Com’n of Okl.19 The APA embodies some minimum norms of federal and state due process which govern review of agency decisions: [a] § 318(1) provides for judicial review of agency action; [b] § 321 confines review to the record; [c] § 320 requires the agency to transmit the entire record to the reviewing court unless shortened by stipulation of the parties; [d] § 309(e) lists items to be included in the record, such as “evidence received or considered”. If the record is inadequate (or nonexistent) for proper disposition of the issues on appeal, the APA affords a method for supplying the needed record by ordering a new proceeding.20 These minimum standards of due process divinable from Braun, Carlile and Amoco apply to court-supervised review in a recount proceeding. When a recount is sought but judicial scrutiny of the agency decision (i.e. the tally) must be withheld for want of a record (in the form of ballots securely preserved by the responsible agency officials), due process demands that a new election be ordered.
B. The Candidate’s Claim to a Fair Count of the Votes under the State Constitution’s “Free and Equal” Election Provisions
Within the meaning of the state constitution’s “free and equal” election provisions,21 every qualified voter has the right *624to cast a vote and to have that vote fairly counted.22 This “free ballot and a fair count” principle23 is a well-established tenet of American election law.24 A fair count is one that is capable of going through a loser’s requested reinspection of government evidence. That proof consists of the preserved ballots. If the election loser cannot test the accuracy of the government count by the statutorily prescribed method, the count becomes incapable of audit and confirmation. A legal cloud is thus ipso facto cast on the mathematical accuracy of the outcome, which is sufficient to overcome the prima facie presumption of the correctness25 that was initially attachable to the official returns.
il
A CANDIDATE IS ENTITLED TO ANOTHER ELECTION WHENEVER HIS OR HER TIMELY AND LEGALLY SUFFICIENT RECOUNT CLAIM, COUPLED WITH AN ALTERNATIVE QUEST FOR ANOTHER ELECTION, MUST BE DENIED FOR THE GOVERNMENT’S FAILURE SECURELY TO PRESERVE THE BALLOTS
Oklahoma statutory law gives one who timely seeks a recount, pays the money and otherwise has a legally sufficient claim, a due process protected quest to a fair count. I would hence hold that a valid recount claim, when coupled with an alternative quest for another election, cannot be denied when recount is impossible for an inexcusable fault on the part of the election officials who failed properly to preserve *625qua non. the ballots. Another election is then a sine
The denial of a recount request for failure of the officials to preserve securely the ballots is analogous to a timely appeal in which the government, through no fault of the appellant, makes it impossible to provide an appellate record for which no substitute is available, or the content of which may not be supplied from any other sources. When this eventuality occurs, the appealing party is entitled to a new trial under 12 O.S.Supp.1990 § 655.26 Similarly, if a timely and legally sufficient recount claim must be denied for an inexcusable fault of the election officials, the recount petitioner — who alternatively seeks another election — is at once entitled to a new election contest.
Because a timely and legally sufficient recount quest, when thwarted by the government’s failure to preserve securely the ballots, serves in my view to overcome the presumption of the official tally’s correctness, I would hold today that the government’s failure properly to preserve the ballots for the loser’s opportunity to test the accuracy of its count makes that race incapable of being determined with mathematical accuracy.27 I would hence hold that the relief of another election Smith secured below should not be disturbed.
III
THE SMITH CLAIM TO RECOUNT, THOUGH ABANDONED BY FAILURE TO SEEK THE SAME RELIEF IN THIS COURT, DOES NOT PREVENT HIM FROM SECURING THAT RELIEF TO WHICH HE IS ENTITLED BY THIS COURT’S APPLICATION OF PROPERLY APPLICABLE PUBLIC-LAW NORMS WHICH GOVERN THIS CASE
Smith, who initially sought and was denied a recount, secured another election based on irregularities which made the outcome of the race incapable of mathematical certainty. He neither asks us for a recount nor presses here in support of the favorable decision a different legal theory. While we cannot afford Smith a recount — a relief not sought by him in this court — the public-law character of the controversy28 leaves us absolutely free to change the legal underpinnings for the decision below to leave the result undisturbed in this proceeding.29
I would hence let Smith benefit from another election, as ordered below, and rest my decision on the government’s inexcusable fault in preventing a recount.
. The terms of 26 O.S.Supp.1990 § 8-120(2) provide:
"When a petition alleging irregularities other than fraud is filed, said petition must allege a sufficient number of irregularities and of such nature as to:
******
2.Prove that it is impossible to determine with mathematical certainty which candidate is entitled to be certified as the party's nominee or to be issued a certificate of election, or to have his name appear on the Runoff Primary Election ballot.* * * " (Emphasis added.)
. Had Smith pressed his recount claim in this proceeding, the issue to be decided would have been whether he was correctly denied a recount for the government officials’ failure to preserve the ballots in conformity to the statutory requirements.
. The court cites 26 O.S.1981 § 8-112 and Andrews v. State ex rel. Eskew, Okl., 618 P.2d 398, 400-401 [1980]. The terms of § 8-112 provide in part:
" * * * The recount shall be conducted in the courtroom of the district court in the county or counties for which the recount is requested, and it shall be the duty of a judge of said court ... to attend ... and conduct such recount. It shall be the exclusive and sole duty of said judge to hear evidence as to whether the ballots have been preserved in the manner and by the officers prescribed by law .... The judgment of said court upon such questions shall be final and conclusive. If the court cannot determine that the ballots have been properly preserved, then no recount shall be conducted_” (Emphasis added.)
. Okl., 806 P.2d 626 [1991].
. 26 O.S.1981 §§ 7-101 et seq.
. See 26 O.S.1981 §§ 7-133, 7-134, 7-135, 7-137 for the general statutory scheme for securing the ballots after the polls have closed.
. See supra note 3 for the pertinent provisions of 26 O.S.1981 § 8-112.
. The pertinent terms of 26 O.S.1981 § 8-112 provide:
" * * * If the judgment of the court is that the ballots have been properly preserved, then the recount of the ballots shall be conducted immediately thereafter under the exclusive supervision of the county election board." (Emphasis added.)
. 26 O.S.Supp.1983 § 8-118; 26 O.S.1981 §§ 8-119, 8-121, 8-122; 26 O.S.Supp.1990 § 8-120.
. Andrews v. State ex rel. Eskew, supra note 3 at 400-401.
. I have long held the view that the judicial service must guard vigilantly against government lawlessness in the nonperformance of a clear statutory duty. See my separate opinion in Matter of Braddy, Okl., 611 P.2d 235, 238 [1980] (Opala, J., concurring in result), a license revocation case in which the licensee complained of the government’s failure to furnish a statutorily mandated transcript of the prior administrative hearing.
. In Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 1491, 84 L.Ed.2d 494 [1985], the Court notes that "[p]roperty interests are not created by the Constitution, ‘they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law_ quoting Board of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548 [1972]; see also Phillips v. Williams, Okl., 608 P.2d 1131, 1133 [1980], cert.denied subnom., 449 U.S. 860, 101 S.Ct. 162, 66 L.Ed.2d 76 [1980].
. The federal and state constitutions protect against state government deprivation of life, liberty and property without due process of law. 14th Amend., U.S. Const.; Art. 2, § 7, Okl. Const.
. Cleveland Bd. of Educ. v. Loudermill, supra note 12, 470 U.S. at 541, 105 S.Ct. at 1493; Phillips v. Williams, supra note 12 at 1133.
. The terms of 26 O.S.Supp.1989 § 8-109 provide in part:
“Any candidate whose name appeared on a Primary, Runoff or General Election ballot, or any individual authorized to request a recount pursuant to Section 8-111 of this title may, any time before 5:00 p.m. Friday next following an election, contest the correctness of the announced results of said election by filing a written petition with the appropriate election board_” (Emphasis mine.)
The pertinent provisions of 26 O.S.Supp.1989 § 8-111(A) are:
"A. In the event a candidate requests a recount of the ballots cast in an election, he must set forth in his petition the precincts and absentee ballots which he desires to be recounted. ... When such petition is properly filed, it shall be the duty of the secretary of the appropriate election board to order said recount _” (Emphasis added.)
. The pertinent terms of 75 O.S.Supp.1987 § 250.5 (renumbered from 75 O.S.1981 § 324 by Okl.Sess.L.1987, C. 207, § 27) provide:
“This act shall not apply to municipalities, counties, school districts, and other agencies of local government; nor to specialized agencies, authorities, and entities created by the legislature, performing essentially local func-tions_” (Emphasis mine.)
. Okl. 609 P.2d 1268, 1273 [1980].
. Okl., 732 P.2d 438, 442-443 n. 21 [1986].
. Okl.App., 751 P.2d 203, 207 [1988].
. 75 O.S.1981 § 322(2). See also, Carbone v. Weehawken Tp. Planning Bd., 175 N.J.Super. 584, 421 A.2d 144, 145 [L.1980]; Fahrenbruck v. State Bd. of Landscape Architect Ex., 13 Ohio Misc. 39, 230 N.E.2d 691, 691 [Ct.Com.Pl.1967]; Colaw v. University Civil Service Merit Board, Etc., 37 Ill.App.3d 857, 341 N.E.2d 719, 722 [1975].
. The terms of Art. 2, § 4, Okl. Const., provide:
"No power, civil or military, shall ever interfere to prevent the free exercise of the right of
*624suffrage by those entitled to such right.” (Emphasis added.)
The pertinent terms of Art. 3, § 5, Okl. Const., are:
"All elections shall be free and equal. No power, civil or military, shall ever interfere to prevent the free exercise of the right of suffrage _" (Emphasis added.)
. We have stated on several occasions that the right of a qualified elector to vote and have that vote counted is basic and fundamental. See McCarthy v. Slater, Okl, 553 P.2d 489, 490 [1976]; Sparks v. State Election Board, Okl., 392 P.2d 711, syllabus 1 [1964]. The "free and equal” language is contained in the constitutions of several states. See e.g., Art. 1, § 5, Pa. Const.; Art. 2, § 1, Ind. Const.; Ky. Const. § 6; see also Williams, The Constitution and Enabling Act of the State of Oklahoma 26 [1912].
. In Goldman, A Free Ballot And A Fair Count [Ph.D. dissertation, Michigan State University, 1976], the author discusses the constitutional and political framework leading to the federally evolved protection of the "free election and a fair countHe notes that Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274 [1883], "represented the judicial acceptance of the political concept of the 'free ballot and a fair count.’" Id. 4 S.Ct. at 169.
. See e.g., Asher v. Arnett, 280 Ky. 347, 132 S.W.2d 772, 775-776 [1939], and Queenan v. Russell, 339 S.W.2d 475, 477 [Ky.App.1960], where the court construed the "free and equal” election provisions of the state constitution to mean that an election is free and equal when "each voter under the law has the right to cast his ballot and have it honestly counted." (Emphasis mine.) See also Goldman, supra note 23, which gives a detailed account of the efforts of federal government officials in the South to protect the "free ballot and a fair count,” citing United States v. Reese, 92 U.S. 214, 23 L.Ed. 563 [1875], and United States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588 [1875], as examples of early judicial support for national authority over the electoral process. The author focuses on the early attempts of the federal government to enforce Fifteenth Amendment rights — i.e., the exemption from discrimination in the exercise of the elective franchise on grounds of race, color or previous condition of servitude — through prosecutions brought under federal statutes.
.The terms of 26 O.S.1981 § 7-136 provide in part:
“The county election board shall convene ... for the purpose of receiving the official precinct returns and ... shall cause to be listed the results of such election. Such county [precinct election] returns shall be prima facie evidence of the correctness of the result in the several counties. The State Election Board shall use such county returns to certify the results of such election for all state officers...." (Emphasis added.)
In Looney v. County Election Board, 145 Okl. 25, 291 P. 554, 564 [1930], the court held that absent a showing that the ballots had been securely preserved according to law, the official returns prepared by the precinct officials were prima facie evidence of the correctness of the precinct vote and the results were conclusive in the absence of a verified petition challenging the correctness of the announced results. See also Andrews v. State ex rel. Eskew, supra note 3.
.The terms of 12 O.S.1981 § 651(9) and 12 O.S.Supp.1990 § 655 provide a mechanism a party may invoke to secure a retrial where, through no fault of his or hers, an appellate record cannot be secured. Matter of Estate of Burkhart v. Wabaunsee, Okl., 594 P.2d 361, 362-363 [1979]. A complaining party was afforded a new trial under these statutes when (a) the court reporter's shorthand notes had been lost, making it impossible to transcribe the evidence, J.H. Taylor Trust v. Driggs, 193 Okl. 346, 143 P.2d 806 [1944]; (b) the court reporter’s impaired eyesight made it impossible to complete the appellate record in time for appeal, Harris v. First Nat. Bank, 140 Okl. 269, 282 P. 1097 [1929]; (c) the court reporter’s notes had been destroyed by a courthouse flood, Gibson v. City of Chickasha, 171 Okl. 284, 43 P.2d 95, 96 [1935]; (d) the court reporter died before transcribing the testimony necessary to produce a substantially complete record, City of Duncan v. Abrams, 171 Okl. 619, 43 P.2d 720, 723 [1935]; (e) the court reporter either failed, refused or was unable to make a transcript of the evidence, Cherry v. Brown, 79 Okl. 215, 192 P. 227 [1920]; and (f) the judge's death prevented settlement of the appellate record, In re James’ Will, 64 Okl. 70, 166 P. 131 [1917]; J.W. Ripey & Son v. Art Wall Paper Mill, 27 Okl. 600, 112 P. 1119 [1910].
. 26 O.S.Supp.1990 § 8-120(2), supra note 1.
. The election process is clearly a matter of great public interest. Art. 2, § 4, Okl. Const., supra note 21; see also Keltch v. Alfalfa County Election Bd., Okl., 737 P.2d 908, 909 [1987].
. Public-law issues may be resolved in this court upon a theory not presented to the trial court. Burdick v. Independent School Dist., Okl, 702 P.2d 48, 54 [1985]; McCracken v. City of Lawton, Okl., 648 P.2d 18, 21 n. 11 [1982]; Application of Goodwin, Okl., 597 P.2d 762, 764 [1979]; First National Bank v. Southland Production Co., 189 Okl. 9, 112 P.2d 1087 [1941]; Special Indemnity Fund v. Reynolds, 199 Okl. 570, 188 P.2d 841 [1948].