Waters v. Gnemi
| Docket Number: | 2004-EC-00007-SCT Linked Case(s): 2004-EC-00007-SCT ; 2004-EC-00007-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-02-2005 Opinion Author: Carlson, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Election contest - Jurisdiction - Sworn petition - Section 23-15-921 - Section 23-15-927 - Special primary election - Section 23-15-911(1) - Section 23-15-267(3) Judge(s) Concurring: Smith, C.J., Waller and Cobb, P.JJ., Easley, Graves, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - ELECTION CONTEST |
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| Trial Court: |
Date of Trial Judgment: 11-13-2003 Appealed from: Holmes County Circuit Court Judge: Al Smith Disposition: Ordered new election. Case Number: 2003-366 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Debra Waters |
MARVIN E. WIGGINS, JR. |
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| Appellee: | James "Danny" Gnemi | LESLIE SCOTT, TOMMIE SULLIVAN CARDIN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Election contest - Jurisdiction - Sworn petition - Section 23-15-921 - Section 23-15-927 - Special primary election - Section 23-15-911(1) - Section 23-15-267(3) |
| Summary of the Facts: | Roy Anderson, James “Danny” Gnemi and Debra Waters qualified to run for the office of District 3 Supervisor. The Holmes County Democratic Executive Committee announced that in the District 3 Democratic primary election, Waters had received 576 votes, Gnemi had received 496 votes, and Anderson had received 72 votes. There were two write-in votes and forty residual votes. This announcement was made prior to the counting of the affidavit ballots. After the Committee convened for the final certification process, it was determined that Waters had received 579 votes, Gnemi had received 503 votes, and Anderson had received 72 votes. The Committee calculated that Waters had received 48.41% of the vote, Gnemi had received 42.05%, and Anderson had received 6.02%. Waters telephoned both the Secretary of State’s office and the Mississippi Democratic Party office and says she was informed in these phone conversations that the residual votes and the write-in votes should not have been included in the vote total to calculate the percentages, and that a recalculation without these 42 votes revealed that Waters was the outright winner of the first Democratic primary. The Holmes County Circuit Clerk’s office received a fax transmission from the Secretary of State’s office addressed to the Committee which included a 1991 Attorney General’s opinion stating that residual and other invalid votes should not be included in calculating the percentages of votes received by any particular candidate. Gnemi was informed by the Committee chair that there would not be a second primary in the District 3 Supervisor’s election because it had been determined that Waters had won the first primary election. Gnemi prepared a handwritten note asking for a recount. After examining the election contents, Gnemi filed an unsworn handwritten protest with the Committee. No action was taken by the Committee on Gnemi’s petition prior to the second primary, and no official notice had been given to the voting public regarding the Committee’s decision to cancel the second primary election in the District 3 Supervisor’s race. The computer printout from the second primary election revealed that Gnemi received 397 votes (52.16% of the vote) and that Waters received 306 votes (40.21% of the vote). However, the Committee refused to certify these election returns based on its prior action in canceling the second primary. Gnemi received a letter from the Committee informing him that his petition was denied and advising him of his right to appeal. Gnemi appealed, and the judge directed that the Holmes County general election for District 3 Supervisor be postponed; a special primary runoff election between Waters and Gnemi be held; and a special general election for District 3 Supervisor be held between the emerging Democratic nominee and the Independent candidates who had qualified prior to the expiration of the qualifying deadline. Waters appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction Waters argues that the special tribunal which convened to review this election contest lacked subject matter jurisdiction due to Gnemi’s failure to meet jurisdictional prerequisites enumerated in our election statutes, i.e., Gnemi’s petition filed with the Committee was unsworn, Gnemi’s petition for judicial review with attached documentation was not properly verified, Gnemi failed to meet the express statutory requirement of obtaining proper certification from two practicing attorneys, Gnemi did not properly submit the required cost bond which must be posted in the amount of $300 and which must also be accompanied by two or more sufficient sureties conditioned to pay court costs in the event the contestant/petitioner does not prevail, and Gnemi’s pleadings were insufficient to maintain an action with the special tribunal. Section 23-15-921 does not state or imply a requirement that the written petition filed with the county executive committee must be sworn. While section 23-15-927 requires that a contestant file in circuit court a sworn petition for judicial review with certain attachments, including a sworn copy of his/her protest or petition which had been filed with the county executive committee, the protest or petition filed with the county executive committee does not have to be sworn. Gnemi unquestionably complied with the provisions of Section 23-15-927 in that he attached to his circuit court petition for judicial review a sworn copy of the unsworn petition which he had filed with the Committee. Gnemi’s verification attached to his petition for judicial review was more than adequate and in compliance with the applicable provisions of section 23-15-927. Attached to Gnemi’s petition are two separate certificates, each signed by a different attorney. The language of paragraphs one and two of the attorneys’ certificates is identical to the language of the statute. Gnemi complied with the statutory requirements concerning the cost bond. Tracking Gnemi’s initial complaints, his circuit court petition for judicial review asserts the same fundamental causes of action. The only additional claims arise out of the same fact issues asserted in his petition to the Committee. Furthermore, the only additional facts included by Gnemi in his petition for judicial review were those regarding alleged election-day irregularities at the polls - an issue discarded by the special tribunal. Issue 2: Special primary election Waters argues that the special tribunal committed reversible error in finding that there was such a radical departure from our election laws by the Committee so as to require a special primary runoff election between Waters and Gnemi. Gnemi testified that when he and Waters appeared at the courthouse for the examination of the ballot boxes, instead of being presented with the six metal precinct boxes, safely secured with metal locks, they were presented with two cardboard boxes with the election materials from all six precincts commingled in those two boxes. When Gnemi made inquiry as to why the election materials were not in the metal precinct boxes, he was informed that the Election Commission members had emptied the contents of the six precinct metal boxes from District Three into the cardboard boxes because the metal boxes were needed for the second primary election. The District Three Election Commissioner for Holmes County testified that he assisted in the conduct of the primary elections. This fact becomes significant since, absent an express agreement to the contrary, it is the county party executive committee, not the county election commission, which is charged by law with the responsibility of conducting the primary elections. The Commissioner handled the six metal ballot boxes from District Three, which included two boxes from Pickens, two boxes from Goodman, and one box each from Ebenezer and Coxburgh. No members of the Committee were present during this process. Ballot box security is essential to producing an election result in which not only the voters, but the candidates themselves, can be confident. Several violations of election laws occurred concerning the August, 2003 first primary election in Holmes County for District Three Supervisor. First, the Circuit Clerk testified that she did not take possession of the ballot boxes the night of the election when the returning poll managers brought them back from the precincts. In fact, she was adamant that she was not in receipt of any of the boxes that evening. Furthermore, the circuit clerk maintains that she had no knowledge of the boxes’ locale up to the time when Gnemi officially served notice on her and exercised his statutory right to examine the ballot boxes. In accordance with section 23-15-911(1), the ballot boxes should have been maintained and monitored by the circuit clerk who had a duty to safely keep and secure the ballot boxes against any tampering both before and after any box examination. Statutory mandate prescribes that the ballot boxes be sealed immediately following an election in order to preserve the election day results. In this case, the boxes, which may have been sealed at one time, were not only left unsealed and accessible, but their contents were commingled with the contents of the other District 3 boxes. The evidentiary value of the sealed ballot boxes was lost the moment the seal was broken on the ballot boxes. Pursuant to section 23-15-267(3), the Committee, not the county election commission, should have taken control of the ballot boxes and delivered them to the circuit clerk. Notwithstanding the fact that the provisions of section 23-15-911(1) allow an aggrieved candidate to examine the ballot boxes within twelve days after the canvass and examination of the boxes and contents by the county executive committee, the county election commissioners, only six days after the Committee certification of the first primary elections, removed the contents of the six District Three ballot boxes and placed them into non-secured cardboard boxes. This action by the county election commissioners destroyed the opportunity for not only Gnemi, but any candidate for a District Three office, or a county-wide office, in the primary, to exercise his or her statutory right to examine the ballot boxes. While ordering a special election is an extraordinary remedy and requires a careful balancing of many competing factors, the special remedy of a new election ordered in this case was not only an appropriate remedy, it was the only remedy. The gross deviation and total departure from mandatory election procedure by the Committee (via the county election commission) caused the result of the election for District Three supervisor to be completely undermined as all indicia of reliability were compromised. While Waters maintains that Gnemi’s election contest fails due to his failure to claim fraud, it is Gnemi’s inability to even be able to detect fraud that mandates today’s extraordinary remedy. |
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