Rush v. Ivy
| Docket Number: | 2002-EC-00822-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 09-11-2003 Opinion Author: Easley, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Election contest - Tallied vote count - Affidavit votes - Section 23-15-13 Judge(s) Concurring: Pittman, C.J., McRae and Smith, P.JJ., Waller, Cobb and Carlson, JJ. Non Participating Judge(s): Diaz and Graves, JJ. Procedural History: Dismissal/Summary Judgment Nature of the Case: CIVIL - ELECTION CONTEST |
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| Trial Court: |
Date of Trial Judgment: 05-08-2002 Appealed from: Humphreys County Circuit Court Judge: Gray Evans Disposition: Granted the Appellee's motion to dismiss/motion for summary judgment. Case Number: 01-0093 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Jacob M. Rush |
ELLIS TURNAGE |
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| Appellee: | Carol M. Ivy | BEN J. PIAZZA, JR. |
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| Topic: | Election contest - Tallied vote count - Affidavit votes - Section 23-15-13 |
| Summary of the Facts: | The City of Belzoni held a municipal general election with Jacob Rush and Carol Ivy as the candidates for alderman ward 3. The Belzoni Election Commission certified Ivy as the winner with the final results for alderman ward 3 as 76 votes for Rush and 77 votes for Ivy. The Commission reviewed the 27 affidavit ballots cast in the election, accepted four and rejected the remaining 23. The 4 accepted affidavit ballot votes were split between Rush and Ivy with each receiving 2 votes. Rush filed suit contesting the election results. Ivy filed a motion to dismiss and/or for summary judgment which the court granted. Ivy filed a counterclaim that one of the ballots counted for Rush should not have been counted because it was not initialed, and the court granted summary judgment for Ivy on her counterclaim determining that the actual results of the election were 77 votes for Ivy, 75 votes for Rush. Rush appeals. |
| Summary of Opinion Analysis: | Issue 1: Tallied vote count Rush argues that the total number of ballots shown on the official recapitulation (tally) sheets was incorrect and the correct vote should have been Rush 77, Ivy 75. Because the court found that one of the ballots cast for Rush was not initialed, the court's finding of summary judgment concerning how the votes were tallied is without merit. Rush also argued that 11 "spoiled ballots" had not been counted. However, the rejected ballots contained distinguishing marks which rendered them invalid and were therefore properly rejected. Issue 2: Affidavit votes Rush argues that 15 of the 23 affidavit ballot voters were improperly rejected as not being registered to vote and that they should have been deemed registered to vote in the Belzoni ward 3 election pursuant to section 23-15-14 since they were registered to vote in the county. Section 23-15-13 requires a change of residency when a voter moves from one ward or voting precinct to another within the same municipality. The record shows that 15 affidavit ballot voters were registered to vote on the county and city voter rolls. The trial court did not have sufficient information as to the current addresses of all of these affidavit ballot votes in order to apply section 23-15-13 to preclude these votes. Of the remaining 14 affidavit ballot voters that were registered on the county and city voter rolls, 9 affidavit ballots did not provide a current address on the affidavit ballot. Without this information, it would not be proper to find that these 9 affidavit ballot votes should have been opened. Of the affidavit ballot voters that were registered to vote on the county and city voter rolls, only 5 correctly completed the affidavit ballot by providing both a former address and a current address on the affidavit ballot. However, these 5 affidavit ballot votes are not without problems and should not be opened and counted. Rush also argues that only 21, not 23, unopened and uncounted affidavit ballot votes are actually in dispute. Based on the lack of information contained in the city voter roll, the discrepancies by the parties and the fact that the court did not address these two ballot votes in its final judgment, there is not a sufficient basis to open and count these two affidavit ballot votes. |
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