Boyd v. Tishomingo County Democractic Exec. Comm.
| Docket Number: | 2003-EC-02776-SCT Linked Case(s): 2003-EC-02776-SCT |
|
| Supreme Court: | Opinion Link Opinion Date: 09-08-2005 Opinion Author: Waller, P.J. Holding: Affirmed |
|
| Additional Case Information: |
Topic: Election contest - Amendment of pleadings - Section 23-15-633 - Illegal absentee votes - Section 23-15-631 - Spoiled ballots - Recusal of judge - Delivery of ballot boxes - Disenfranchisment of voters Judge(s) Concurring: Smith, C.J., Cobb, P.J., Easley, Carlson, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Concurs in Result Only: Graves, J., With Separate Written Opinion Procedural History: Bench Trial Nature of the Case: CIVIL - ELECTION CONTEST |
|
| Trial Court: |
Date of Trial Judgment: 11-02-2003 Appealed from: Tishomingo County Circuit Court Judge: Al Smith Disposition: The special tribunal affirmed the election results and declared Glenn Whitlock the winner. Case Number: CV03-0198 |
|
| Party Name: | Attorney Name: | |||
| Appellant: | Jerry Boyd |
SHIRLEY PAYNE, DENNIS L. HORN |
||
| Appellee: | Tishomingo County Democratic Executive Committee and Members and Glenn Whitlock, Intervenor | RICHARD D. BOWEN |
|
|
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. |
|
| Topic: | Election contest - Amendment of pleadings - Section 23-15-633 - Illegal absentee votes - Section 23-15-631 - Spoiled ballots - Recusal of judge - Delivery of ballot boxes - Disenfranchisment of voters |
| Summary of the Facts: | When no candidate received a majority of the votes in the first Democratic primary for Sheriff of Tishomingo County, the two candidates with the highest number of votes, Jerry Boyd and Glenn Whitlock, faced each other in the second primary. Whitlock won the second primary election with a total of 3,598 votes to Boyd’s 3,558 votes and was certified as the Democratic Party nominee for sheriff. After having filed an election contest with the Democratic Executive Committee, Boyd filed a petition for election contest in the circuit court. After the hearing began, Boyd sought to amend his petition, and the motion was denied. The judge invalidated some votes but denied Boyd’s request for a special election since the invalidated votes did not change the election’s results. Boyd then requested a stay pending appeal, which was denied. Boyd appeals. |
| Summary of Opinion Analysis: | Issue 1: Amendment of pleadings On the second day of the hearing, Boyd attempted to amend his pleadings to challenge votes cast during the second primary by absentee voters who had obtained second primary ballots without submitting a second application and to question the votes of absentee voters who submitted applications for absentee ballots more than forty-five days prior to the second Democratic primary. Additionally, Boyd raised an ore tenus motion to amend to question the validity of absentee votes that lacked the signature of either the voter or attesting witness across the flap of the absentee ballot envelope. Boyd argues that the special tribunal erred in denying these motions. The special tribunal in an election contest has jurisdiction only to hear those issues that a party raised before the executive committee. Because the issues Boyd attempted to argue through amendment were not brought before the executive committee, the special tribunal was correct in denying Boyd’s written and ore tenus motions to amend. With regard to the merits of his motions, pursuant to section 23-15-633, absentee ballots with signatures failing to cross the envelope’s flap should be invalidated. A second primary election is not a continuation of the first election permitting a bypassing of the statutory requirement that each absentee ballot may only be received upon proper application by an absentee voter. The Legislature intended separate applications for each election unless specific exemptions are provided. There is no such legislative exemption for a second application for absentee voters. Each primary requires a separate application unless otherwise exempted by voting law. Issue 2: Illegal absentee votes Boyd argues that there were a number of illegal votes cast in this election. The burden is on him, as the contestant, to prove both the existence of these illegal votes and that there were enough cast to change the election’s result. Additionally, an election may 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. When a contestant, such as Boyd, is unsuccessful in his contest, only the tainted votes are rendered void and the outcome of the election is determined by the legal votes cast. Boyd argues that certain ballots should be invalidated because they lack notary seals in violation of section 23-15-631. However, the ballots in question either do contain some sort of seal or are signed in conjunction with section 23-15-631(c)’s exception to the seal requirement for voters who are temporarily or permanently disabled. Boyd argues that the double attestation of a number votes invalidates the ballots because the certificate of the attesting witness requires the witness to swear that the voter voted out of the witness’ presence without any solicitation or advice, while the voter assistance certificate requires the witness to swear that the voter required assistance and such assistance was provided by the witness. With no evidence of fraud or wrongdoing, there is nothing in the record to justify overturning the special tribunal’s determination that the votes should not be invalidated because of a technical irregularity. Boyd argues that the special tribunal erred in failing to invalidate ballots based on a failure of the questioned ballots’ applications to include a reason for voting absentee. The applications for these absentee ballots were filled out and notarized by the circuit clerk, strengthening the integrity of the applications and rendering the lack of a reason for absentee voting a technicality that does not justify invalidating the three votes. Issue 3: Spoiled ballots Boyd argues that there were ballots cast in the second primary which were marked for more than one candidate yet were not marked “spoiled” while a valid vote cast for him was voided. The special tribunal erred only in excluding the ballot of a voter who declined to vote for anyone in the constable’s race but marked the line designated for write-in candidates. In the sheriff’s race, the voter clearly cast a vote for Boyd. As the intent of the voter could reasonably be determined as to the office of sheriff, the special tribunal erred in failing to count this vote for Boyd. Issue 4: Recusal of judge Boyd argues that the special judge should have recused himself because of comments the judge made to Boyd’s counsel. The standard for recusal is whether a fair-minded person, knowing all the facts, might reasonably question the judge’s impartiality. Boyd’s counsel had been warned against such displays roughly five times before the judge’s comments were made. Considering the behavior of Boyd’s attorney and the fact that the attorney was never actually held in contempt, Boyd fails to meet the standard for recusal. Issue 5: Delivery of ballot boxes Boyd argues that precinct manager, Whitlock’s cousin, did not deliver the ballot boxes from his precinct “forthwith.” Boyd produced no evidentiary basis for his allegations. In addition, he raises this issue for the first time on appeal. Issue 6: Disenfranchisment of voters Boyd argues that the special tribunal erred in refusing to recognize his claims that certain voters were disenfranchised by being wrongfully purged from the voter rolls. Boyd, however, offered little to no evidence of wrongdoing and failed to prove, by a preponderance of the evidence, that potential electors were in fact disenfranchised in any way. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
