Fi­nal doc­u­ments sub­mit­ted for May­oral Election con­test

Starkville Daily News - - FRONT PAGE - By LO­GAN KIRK­LAND news@starkvilledai­

Nearly a month after the may­oral election con­test re­cessed from Ok­tibbeha County Cir­cuit Court, both le­gal teams have sub­mit­ted their fi­nal court doc­u­ments.

On Mon­day, both Mayor Lynn Spruill and Demo­cratic can­di­date Johnny Moore filed their find­ings of fact and con­clu­sions of law in Ok­tibbeha County Cir­cuit Court.

In April, Spe­cial Judge Barry Ford al­lowed the le­gal teams 21 days to file the fi­nal doc­u­ments once they re­ceived a tran­script of the

court pro­ceed­ings.

Ford said he would then re­view the doc­u­ments sub­mit­ted by both teams and call on the election com­mis­sion­ers who were present dur­ing the trial, to ask for their ex­pert opin­ions upon re­view.


Ac­cord­ing to court doc­u­ments, Moore's team claims an er­ror in the cer­ti­fied count of the bal­lots, which were pre­vi­ously counted in the election. Moore claims the ac­tual bal­lot count should be 1,866 votes for Moore and 1,871 votes for Spruill, which changes the vote mar­gin to five, rather than a six vote mar­gin.

In a sec­tion of the doc­u­ment la­beled "vote count is­sue" it states in Ward 1, there was a bal­lot in the "ac­cepted bal­lots" en­ve­lope cast for none of the above. Two tally sheets were sub­mit­ted from Ward 1, which re­flect the to­tal count of reg­u­lar election day bal­lots for Spruill as 204 and Moore 170.

It states both tally sheets from Ward 1 have a cor­rec­tion from 203 votes to 204 votes for Spruill. A poll worker from Ward 1, Carla Jones, tes­ti­fied there was a mark on the black line un­der­neath the line where Spruill votes were be­ing tal­lied, which was marked out.

Jones also tes­ti­fied that she agreed it ap­peared that the three in 203 was marked out and re­placed with a four, mak­ing the count for Spruill 204.

In Ward 3, after their ex­pert wit­ness Pete Perry scanned the doc­u­ments, he tes­ti­fied the Ward 3 count should have been 524 for Moore and 351 for Spruill.

In the court doc­u­ments, Moore's team states in Ward 6, there are 209 votes cast for Moore and 273 votes for Spruill. When the ini­tial count was 208 votes for Moore and 274 for Spruill.

Moore is ques­tion­ing eight bal­lots, that he and his le­gal team feel should be counted.

The first bal­lot comes from Carolyn Batchelder, who sub­mit­ted an ab­sen­tee bal­lot, but was marked re­jected. A poll worker later iden­ti­fied the bal­lot and tes­ti­fied it was marked as re­jected, but ap­peared to meet all re­quire­ments un­der the check­list.

David Moore, who the Court has pre­vi­ously ruled on the va­lid­ity of the af­fi­davit bal­lot, was ini­tially re­jected due to his ad­dress be­ing in the county, but was within the city lim­its.

An af­fi­davit bal­lot cast by Jen­nifer Watts, was reg­is­tered to vote, but when ar­riv­ing at the polls, she was not in the poll books. She then cast an af­fi­davit bal­lot, but was marked as re­jected with­out rea­son other than a hand­writ­ten note that stated "no apt. # - could have been ret."

Watts was listed as in­ac­tive due to a re­turned voter reg­is­tra­tion card, which was ad­dressed to the in­cor­rect ad­dress.

Deb­o­rah Ve­mer had her af­fi­davit bal­lot re­jected and the no­ta­tion on the back side of the en­ve­lope was that she was in­ac­tive. A post-it note stated "voter card mailed Feb. 2017 and re­turned as un­de­liv­er­able" and "in­ac­tive in com­puter." A Com­mis­sioner said they did not know why the bal­lot would be re­jected.

James Schilling, who moved sev­eral times within the city lim­its, had his af­fi­davit bal­lot re­jected after mem­bers of the com­mis­sion per­formed an in­ter­net search for Schilling's of­fice, which was listed in close prox­im­ity of the dwelling listed.

Wil­liam Fer­gu­son's af­fi­davit bal­lot was re­jected by the com­mis­sion­ers but no rea­son was listed, but it was de­ter­mined that the Statewide Election Man­age­ment Sys­tem in­cor­rectly re­ported Fer­gu­son's old ad­dress as be­ing in the county, rather than be­ing in the city.

Fer­gu­son's pre­vi­ous ad­dress and orig­i­nal reg­is­tra­tion ad­dress was in the city lim­its and has tax records for the prop­erty.

Wil­liam Joseph Parker's af­fi­davit bal­lot was re­jected due to be­ing "reg­is­tered too late." He was reg­is­tered on May 31, 2013, and his file was found at Ok­tibbeha County Cir­cuit Court, where he was given a voter reg­is­tra­tion card.

An­nie Cov­ing­ton's af­fi­davit bal­lot was re­jected for "reg­is­tered too late," but Cov­ing­ton was reg­is­tered on April 10, 2017, more than 30 days prior to the election held on May 16, 2017.

Alan Tucker West's af­fi­davit bal­lot was re­jected due to “front not com­plete.” He filled out nec­es­sary in­for­ma­tion, but did not mark a rea­son listed as to why he was vot­ing an af­fi­davit bal­lot.

In court doc­u­ments filed by Spruill's le­gal team, in the sec­tion la­beled "bal­lot re­count" says the con­cept of a re­count of bal­lots is for­eign to Mis­sis­sippi law. It says there is no le­gal au­tho­riza­tion for re­counts, and are not rec­og­nized by the courts.

In the sec­tion la­beled "new or spe­cial election" Spruill's team rec­og­nizes the court may or­der a new election. It states it is lim­ited by the election con­tes­tant's abil­ity to prove that the il­le­gal votes would be enough to change the election re­sults.

The doc­u­ments say an election may also be in­val­i­dated when there has been a "sub­stan­tial fail­ure" to com­ply ma­te­ri­ally with the ap­pli­ca­ble statutes and the in­tent of the vot­ers is im­pos­si­ble to as­cer­tain; in the event of such val­i­da­tion, a spe­cial election would be re­quired. Spruill's team says there was not sub­stan­tial fail­ure found by the court, and the pro­ce­dural ir­reg­u­lar­i­ties were cause by hu­man in­no­cent er­ror, re­sult­ing in not or­der­ing a spe­cial election.

As for af­fi­davit bal­lots, Spruill's team ar­gues by statute, the per­son should fill out the bal­lot com­pletely to be con­sid­ered. Her team ar­gues eight of the af­fi­davit bal­lots are not filled out com­pletely and ac­cu­rately.

Dur­ing the trial, Perry iden­ti­fied 52 ab­sen­tee bal­lots, which were ac­cepted by poll work­ers, but should not have been due to one or more "fa­tal" statu­tory de­fi­cien­cies with each bal­lot. Both par­ties agreed the bal­lots should be re­jected.

Both par­ties also agree that two ab­sen­tee bal­lots iden­ti­fied as re­jected should have been ac­cepted.

Ac­cord­ing to court doc­u­ments, Spruill's team says the im­pact of the 52 ab­sen­tee bal­lots that should not have been counted raises a com­pli­cated ques­tion. It says votes that should not have been counted, like the 52 ab­sen­tee bal­lots iden­ti­fied by Perry, are ap­prox­i­mately one-fifth of the to­tal ab­sen­tee bal­lots cast in this election.

The par­ties agree, and the record re­flects, that there were 269 ab­sen­tee bal­lots cast in this election that were counted, 18 af­fi­davit bal­lots cast in this election that were counted, and 3,451 reg­u­lar bal­lots cast in the election that were counted.

Spruill's team says Mis­sis­sippi law is clear that once an ab­sen­tee bal­lot is sep­a­rated from the ap­pli­ca­tion, there is no way to track the bal­lot and there­fore no way to re­cover which of the er­ro­neously counted bal­lots can be re­trieved. This means, in the mix of 269 ab­sen­tee bal­lots, there are ap­prox­i­mately 20 per­cent of bal­lots that should not have been counted to­ward ei­ther can­di­date, but were. The rem­edy for re­mov­ing the in­valid votes from the mix of ab­sen­tee bal­lots re­quires all 269 ab­sen­tee bal­lots to be voided.

The ar­gu­ment pre­sented by Spruill's team asks if seven per­cent of the votes is a sub­stan­tial enough num­ber to make it im­pos­si­ble to dis­cern the will of the vot­ers. The doc­u­ment says if the num­ber is sub­stan­tial, a spe­cial election is in or­der.

The rul­ing of the trial will be sub­mit­ted by Ford in writ­ing.

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