Harpole v. Kemper County Democratic Exec. Comm., et al.


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Docket Number: 2004-EC-00302-SCT

Supreme Court: Opinion Link
Opinion Date: 08-04-2005
Opinion Author: Carlson, J.
Holding: Affirmed

Additional Case Information: Topic: Election contest - Jurisdiction - Section 23-15-927 - Procedural decisions - Transporting prisoners to polls - Special election
Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Graves, Dickinson and Randolph, JJ.
Non Participating Judge(s): Diaz, J.
Dissenting Author : Easley, J.
Procedural History: Dismissal
Nature of the Case: CIVIL - ELECTION CONTEST

Trial Court: Date of Trial Judgment: 12-07-2003
Appealed from: Kemper County Circuit Court
Judge: Al Smith
Disposition: Judge Smith dismissed, with prejudice, Harpole’s petition for judicial review and certified as “official and final” the results from the November general election for the office of Kemper County Sheriff.
Case Number: 2003-CV-90

Note: Motion for Sanctions and Memorandum in Support Thereof filed by Appellee, Motion To Dismiss Appeal for Lack of Subject Matter Jurisdiction filed by Appellee, Samuel Tisdale, is denied

  Party Name: Attorney Name:  
Appellant: Johnny Harpole




GARY STREET GOODWIN



 

Appellee: Kemper County Democratic Executive Committee and Samuel Tisdale MARVIN E. WIGGINS, JR., LINDA ANN HAMPTON  

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Topic: Election contest - Jurisdiction - Section 23-15-927 - Procedural decisions - Transporting prisoners to polls - Special election

Summary of the Facts: Incumbent Sheriff Samuel Tisdale and challenger Johnny Harpole emerged from a four candidate field in the first Democratic primary to advance to the second primary to determine the Democratic nominee for the office of sheriff of Kemper County. In the second primary, Tisdale received 2,191 votes, and Harpole received 2,151 votes. The Kemper County Democratic Executive Committee certified Tisdale to be the Democratic nominee for the office of sheriff. Harpole requested a manual recount because of Tisdale’s narrow margin of victory and due to his concerns about the integrity of the ballot boxes. Harpole and his attorney examined the contents of the ballot boxes after which Harpole, through counsel, filed a contest alleging numerous election day irregularities. The Committee determined that most of Harpole’s allegations were either without merit or meaningless because the error affected only a small percentage of the total vote. However, the Committee did determine that there were material breaches of absentee voter law. In finding that there was no way to differentiate between a legal absentee ballot and an illegal absentee ballot, the Committee held that all absentee ballots would not be counted. The Committee conducted an official recapitulation without the inclusion of any absentee ballots, and this resulted in Tisdale winning the second primary by 159 votes – 2118 votes for Tisdale, and 1,959 votes for Harpole. Harpole filed a sworn petition for judicial review in the circuit court. Tisdale filed a motion to dismiss, motion to strike, motion for summary judgment with documentation, amended motion to dismiss, second amended motion to dismiss, and amended motion to strike. The judge granted Tisdale’s motion to dismiss, finding that the court lacked jurisdiction due to several fatal defects in Harpole’s petition for judicial review, and, even alternatively addressing the petition on its merits, that Harpole had failed to sufficiently allege violations and irregularities in the second primary sheriff’s election to the extent that the will of the qualified voters was impossible to ascertain. Harpole appeals.

Summary of Opinion Analysis: Issue 1: Jurisdiction The circuit court found as jurisdictionally fatal, Harpole’s failure to attach his initial contest letter to his petition for judicial review. Harpole first sent a letter to the Committee on August 27. The record is silent as to any action taken by the Committee as a result of this letter. Two days later, on August 29, 2003, within the statutorily mandated time, Harpole personally delivered a letter to Tisdale informing him that he was requesting an examination of the ballot boxes and designating his attorney as his representative and requesting the Committee to make the necessary arrangements for the examination of the ballot boxes. It is on this letter that the Committee acted, and Harpole and his attorney thereafter conducted the examination of the ballot boxes. It is obvious that once Harpole retained counsel, the correct statutory procedure was followed by way of a request for an examination of the ballot boxes, followed by a petition filed with the Committee. When considering the August 27th letter, the August 29th letter, and the September 12th petition filed with the Committee, the only one of these three documents which was statutorily required to be attached to the circuit court petition for judicial review was the September 12th petition which Harpole dutifully attached to his sworn petition for judicial review. Harpole meticulously complied with section 23-15-927. Therefore, the circuit court erred in finding that the special tribunal was without jurisdiction to consider this election contest due to Harpole’s failure to attach to the sworn petition for judicial review a copy of his initial letter. The circuit court also found that Harpole had failed to allege any act, or failure to act, on the part of the Committee, which would allow the special tribunal to commence a judicial review of the Committee’s findings. Section 23-15-927 which governs judicial review of executive committee decisions regarding primary election contests requires that a petition for judicial review set forth with particularity wherein the executive committee has wrongfully denied the relief prayed for. In essence, Harpole attacked the validity of hundreds of absentee ballots in 23 precincts, so the Committee threw them all out. The only relief left to grant Harpole which would allow him to prevail in this election contest would be to grant him the extraordinary remedy of a new election. Thus, the only way for Harpole to bring a viable cause of action before the special tribunal would be to assert allegations that require statutory relief by way of a new election. The imposition of a new election is a last resort, and the key consideration in making this decision is whether there is such a radical departure from our election laws so as to require a special election or that alleged illegal votes are attended by fraud or willful violations of election law. The test essentially provides that special elections will be required only when enough illegal votes were cast for the contestee to change the result of the election, or so many votes are disqualified that the will of the voters is impossible to discern. Since Harpole does not allege fraud or willful violation of the election code, the Court must determine whether a sufficient portion of the voting public was disenfranchised so as to require the extraordinary remedy of a new election. By discounting the tainted absentee votes, the Committee granted Harpole the appropriate relief. Moreover, the actions of the Committee clearly met the two pronged test. The disenfranchisement of the absentee voters does not cast sufficient doubt on the results of this second primary election to warrant invalidating the election and calling for a special election. Therefore, there was nothing further required of the special tribunal by way of an evidentiary hearing. Issue 2: Procedural decisions Harpole argues that he did not receive proper notice of the scheduled Committee hearing; that he was denied his right to a fair and impartial hearing the Committee’s refusal to issue subpoenas in blank; and, that by the designation of a panel he was improperly denied a hearing in front of the whole of the Committee. The chairman of the Executive Committee set a hearing for Monday, September 22, 2003. Harpole’s attorney stated in his sworn affidavit that he was served with notice of the hearing on Monday, September 15, 2003. Excluding Monday, the 15th, but counting Tuesday, the 16th, Wednesday, the 17th, Thursday, the 18th, Friday, the 19th, and Monday, the 22nd, Harpole received the required five-day statutory notice for the hearing before the Committee. Harpole was not denied his right to subpoena witnesses – the Committee merely refused to give him blank subpoenas. In appropriately putting this election contest on a fast track, the Committee at least inferentially acknowledged its full membership would experience extreme difficulty in putting their personal lives on hold while they, on short notice, dropped everything to be involved in a fairly lengthy investigative hearing to fairly consider the evidence presented. Thus, the designation of a smaller panel consisting of Committee members satisfied both the “fast-track” requirement existing in election contests, but of equal importance, such action also satisfied the fairness requirement existing in election contests so as to give full, complete and serious consideration to the contestant in an election contest. Issue 3: Transporting prisoners to polls Harpole alleges that Sheriff Tisdale utilized his deputies to bring prisoners to the polling precincts to vote and argues that the Committee acted improperly in not ruling on whether this practice was in violation of section 23-15-895. County executive committee members are clothed only with specific statutory authority and function only as arbiters of election law as it applies to an election contest. In Harpole’s petition for judicial review, he failed to expound on this allegation. In his petition for judicial review, and on appeal, Harpole does little more than include the same allegation and fails to couch his argument in a manner in which, if proven to be true, would nullify the election results. Furthermore, he failed to challenge the Committee’s ruling and request the special tribunal for relief regarding the specified violations. In a contestant’s petition for judicial review, issues must be couched in terms that clearly evidence what facts and by what law a contestant might prevail. In making his allegation, Harpole has never supported it with viable evidence or presented it in a manner to suggest that, but for this occurrence, he would have won the second primary election for sheriff. Issue 4: Special election Harpole argues that the circuit court’s affirmance of the Committee’s decision was error and that, to the extent that the number of illegal uncounted absentee ballots exceeds the difference between the two candidates, a new special election is required. This issue is without merit, as already discussed. Harpole also argues that in addition to the absentee ballots, election officials improperly handled affidavit ballots, damaged ballots, regular ballots, and otherwise committed gross irregularities which affected the outcome of the election and called into question whether the will of the voters had been accurately ascertained. The record indicates that both the and the special tribunal promptly, diligently, efficiently, and fairly discharged its duties in addressing this election contest.


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