I dissent. Contestants had the burden of establishing by clear and convincing evidence that each of the nine illegal voters in question actually voted in favor of consolidation. Although direct evidence on this issue was readily available to contestants by asking each voter how he voted, nevertheless contestants chose to rely exclusively upon “circumstantial evidence” consisting of a petition signed by these voters several months prior to the election. Since this evidence was not clear and convincing, but instead was conjectural and speculative on the issue sought to be proved, the trial court was clearly justified in finding against contestants. Having so found, this court should refrain from substituting its judgment for that of the trial court.
“It is the primary principle of law as applied to election contests that it is the duty of the court to validate the election if possible. That is to say, the election must be held valid unless plainly illegal. [Citations.]” (Italics added; Rideout v. City of Los Angeles, 185 Cal. 426, 430 [197 P. 74]; see In re East Bay etc. Water Bonds of 1925, 196 Cal. 725, 744 [239 P. 38]; People v. Prewett, 124 Cal. 7, 10 [56 P. 619]; Shinn v. Heusner, 91 Cal. App.2d 248, 252 [204 P.2d 886].)
Accordingly, the rule has developed that a contestant has the burden of proving not only that illegal votes were cast, but that they were cast for the contestee. (Russell v. McDowell, 83 Cal. 70, 73 [23 P. 183]; Singletary v. Kelley, 242 Cal.App.2d 611 [51 Cal.Rptr. 682]; Elec. Code, § 20024.) In a noncandidate election, such as involved herein, contestants must establish in what manner the illegal votes were cast for the ballot issue involved. (Singletary v. Kelley, supra.) The courts have required contestants to furnish “very clear” evidence (Smith v. Thomas, 121 Cal. 533, 536 [54 P. 71]), or “clear and convincing” evidence (Hawkins v. Sanguinetti, 98 Cal.App.2d 278, 283 [220 P.2d 58]) in this regard, and have uniformly insisted that such evidence be adduced from the illegal voter himself, if he is available and willing to testify. (Smith V. Thomas, supra; Lauer v. Estes, 120 Cal. 652, 656 [53 P. 262]; Russell v. McDowell, supra; Hawkins v. Sanguinetti, supra; Robinson v. McAbee, 64 Cal.App. 709, 715 [222 P. 871].)
For example, the Lauer and Hawkins cases, supra, rejected the use of extrajudicial writings purporting to disclose how particular illegal voters voted. In Smith, supra, the court stated that “very clear evidence should be *135furnished as to how one did vote before his vote can be deducted from the total of any candidate,” thereby rejecting voter Crabree’s statement that “if I had voted, I suppose I would have voted for [defendant].” (121 Cal. at p. 535.) In Russell, supra, the court affirmed that “there is but one means of proving how the illegal voter has cast his vote; that is to say, by his own testimony. . . .” Cases from other jurisdictions have adopted this rule.1
With the rule so well established by the foregoing cases, I am frankly astounded that the majority can conclude that “Contestants are not required to ask voters how they voted.” (Ante, p. 128.) The majority rely exclusively upon Robinson v. McAbee, supra, 64 Cal.App. 709, to support their theory that the consolidation petition was sufficient circumstantial evidence to disclose how the illegal voters voted. But Robinson held that “The court did not err in requiring the witness, Miss Waggoner, an alleged illegal voter, to give testimony disclosing the name of the person for whom she voted for the office of justice of the peace.” (64 Cal.App. at p. 713.) True, Robinson also noted that “circumstantial evidence may be resorted to, if necessary, to prove that a disqualified voter has cast his ballot or voted for a particular candidate at a particular election” (italics added, 64 Cal.App. at p. 718), citing McCrary on Elections. McCrary states that “where a voter refuses to disclose, or fails to remember, for whom he voted, it is competent to resort to circumstantial evidence, to raise a presumption in regard to that fact. (McCrary, Elections, § 493, at p. 363.) In other words, circumstantial evidence is admissible only where direct evidence is unavailable from the voter himself. In Robinson, the illegal voter was examined, but couldn’t “swear” that she actually voted for contestee. Therefore, circumstantial evidence of her intentions was admissible.
Reliance upon Robinson to support a broader rule was expressly rejected in Hawkins v. Sanguinetti, supra, 98 Cal.App.2d 278, 283-284, wherein contestants sought to introduce affidavits of voters executed one month following the election. The court relied upon Lauer v. Estes, supra, 120 Cal. 652, as controlling, and stated that Robinson “is not, as appellant contends, authority for the use of writings in a manner such as is proposed by appellant herein.”
Surely, a petition signed months before the election occurred is entitled to no greater weight or effect than the affidavit of a voter executed shortly thereafter, and does not constitute the “very clear” evidence required by the cases. As the trial court herein stated upon admitting the petition into evidence, “the court will indicate at this time that it feels it [the petition] has *136very little probative value, if any, at all with respect to how a person voted because certainly anyone can sign a petition denoting their desire to have an issue put before the people for election, but it doesn’t indicate how they’re going to vote in any sense. It will be primarily admitted for the purposes of what value they [sic] may have for impeachment purposes.”
Evidence Code section 412 provides that “If weaker and less satisfactory evidence is offered when it was within the power of the party to produce stronger and more satisfactory evidence, the evidence offered should be viewed with distrust.” Evidence Code section 413 states that “In determining what inferences to draw from the evidence or facts in the case against a party, the trier of fact may consider, among other things, the party’s . . . wilful suppression-of evidence relating thereto . . . .” As stated in Shapiro v. Equitable Life Assur. Soc., 16 Cal.App.2d 75, 94 [172 P.2d 725], quoting from Wigmore, “ ‘The nonproduction of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.’ (Italics in the text.)” (See also Witkin, Evidence (2d ed. 1966) §§ 1127-1130, and cases cited.)
The foregoing authorities are directly on point and sustain the trial court’s finding herein that contestants failed to prove that the nine illegal voters in question actually voted for consolidation. The majority attempt to excuse contestants from their failure to examine the illegal voters regarding their vote on the ground that contestants feared that these voters might have lied to preserve the election. This argument was squarely rejected in Russell v. McDowell, supra, 83 Cal. 70, 73: “He [contestant] also argues with equal force, that there is but one means of proving how the illegal voter has cast his vote; that is to say, by his own testimony, which is more likely to be false than true; and consequently that the attempt to prove how illegal votes have been cast can only result in an aggravation of the fraud. But what consequence would he have us deduce from this reasoning? v . . In truth, a court can do nothing better, in the absence of proof as to how illegal votes have been cast, than to make the apportionment as was done in this case . . . .”
The majority overlook the trial judge’s ability to make credibility determinations of the nature involved herein; no judge is obligated to accept at face value the “self-serving” testimony of a witness interested in the litigation’s outcome. Had contestants fulfilled their obligation to examine voters directly regarding their vote, cross-examination (supported by the voter’s signature on the petition) might well have weakened or impeached an unfavorable response. (See Garrison v. Rourke, 32 Cal.2d 430, 442 [196 P.2d 884], and Smith v. Thomas, supra, 121 Cal. 533, 536, wherein the testimony of illegal voters was successfully impeached in this manner.)
*137The record shows that contestants voluntarily chose not to ask the illegal voters how they voted. Contestants initially examined four voters before asking any voter how he voted. Upon asking voter Eva M. Lopez how she voted, respondents made the following proper objection: “That’s an objectionable question, Your Honor, unless there’s a clear ruling by the Court that this vote is illegally cast. ... If the vote is legally cast, under the constitution the voter is not required to answer.”
The court sustained the objection, and ultimately found Mrs. Lopez not to have been an illegal voter. Respondents’ objection was well taken. As stated in the case upon which the majority rely, Robinson v. McAbee, supra, “Of course, such a person [a challenged voter] will not be compelled to testify as to the person for whom he voted until it is clearly shown he voted illegally. And so long as the question as to the legality of his vote is in doubt, he cannot be compelled to make the disclosure.” (64 Cal.App. at p. 715; accord, McCrary, Elections, supra, §§ 490-4,92.)
After examining Mrs. Lopez, contestants examined four more voters without asking them how they voted. Then, voter Donald Epperson was asked whether or not he told one Robert Reed that he, Epperson, had voted in favor of consolidation. Again, respondents objected, solely on the ground that Epperson had not yet been shown to be an illegal voter. The court agreed that there was a “serious question” whether Epperson was a legal voter, and sustained the objection, stating that “Well, at this point I don’t feel that there’s sufficient foundation yet laid to establish domicile one way or the other, and I’ll sustain the objection at this time” (Italics added.) Contestants thereafter examined Epperson further, excused him, and never recalled him, even though the court’s ruling had made it unmistakably clear that contestants could ask Epperson and other voters how they voted upon establishing their status as illegal voters. Thereafter, six more voters were examined, but contestants did not examine them regarding how they had voted. Then, Louis E. Gonzales, shown to have been an illegal voter, was asked how he cast his vote, was permitted by the court to answer, and replied that he voted against consolidation. Finally, six more voters were questioned, but contestants chose not to ask them how they voted.
Once all voters had been examined, contestants moved to admit into evidence the petition for consolidation and explained that in their view, testimony from illegal voters regarding their vote should not be accorded any weight and that contestants were relying exclusively upon the circumstantial evidence which the petition afforded. Thus the record conclusively establishes that contestants voluntarily made a tactical decision not to inquire of most illegal voters regarding their vote. Under the rule of the cases dis*138cussed above, and under Evidence Code sections 412 and 413, the trial court properly granted respondents’ motion for judgment.
I would affirm the judgment below.
Wright, C. J., and McComb, J., concurred.
See, e.g., Wilkinson v. McGill, 192 Md. 387 [64 A.2d 266, 274]; Bentley v. Wright, 303 Ky. 618 [197 S.W.2d 420, 422]; Lugar v. Burns, 197 Ind. 646 [150 N.E. 774, 775]; Ganske v. Independent School Dist. No. 84, 271 Minn. 531 [136 N.W.2d 405, 408]; Application of Murphy, 101 N.J.Super. 163 [243 A.2d 832, 836],