Smith v. Hollins
| Docket Number: | 2003-EC-02440-SCT Linked Case(s): 2003-EC-02440-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 06-23-2005 Opinion Author: Waller, P.J. Holding: Reversed and Rendered |
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| Additional Case Information: |
Topic: Election contest - Absentee ballots - Special election - Section 23-15-937 Judge(s) Concurring: Cobb, P.J., Easley, Dickinson and Randolph, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : Graves, J. Concur in Part, Dissent in Part 1: Carlson, J. Concur in Part, Dissent in Part Joined By 1: Smith, C.J. Procedural History: Admin or Agency Judgment Nature of the Case: CIVIL - ELECTION CONTEST |
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| Trial Court: |
Date of Trial Judgment: 10-27-2003 Appealed from: Wilkinson County Circuit Court Judge: Denise Owens Disposition: The Wilkinson County Democratic Party Executive Committee did not certify a winner. The tribunal found that there was no proof of electoral fraud, that any nonconforming votes were void and that the election would be determined by the legal votes cast under Rizzo v. Bizzell, 530 So. 2d 121, 128 (Miss. 1988). After examining the challenged ballots and hearing testimony, the tribunal found that six additional votes should be added for Smith and twenty additional votes should be added for Hollins, making the final tally of 516 votes for Smith and 519 votes for Hollins. Hollins was declared the winner of the second primary for the office of Supervisor, Wilkinson County, District 2. Case Number: 03-0129 |
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| Note: | The motion for rehearing filed by Edward Kirk Smith is granted. The prior opinion is withdrawn, and these opinions are substituted therefor. The motion for rehearing filed by Richard Hollins is denied. | |
| Party Name: | Attorney Name: | |||
| Appellant: | Edward Kirk Smith |
ROBERT C. LATHAM, JOHN R. JUNKIN, DAVID S. CRAWFORD |
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| Appellee: | Richard Hollins | CARROLL RHODES |
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| Topic: | Election contest - Absentee ballots - Special election - Section 23-15-937 |
| Summary of the Facts: | The motion for rehearing filed by Edward Smith is granted, and the motion for rehearing filed by Richard Hollins is denied. These opinions are substituted for the prior opinions. A Democratic Party primary election was held in Wilkinson County for the District 2 Supervisor contest between Richard Hollins and Edward Smith. District 2 was created as a result of a redistricting plan. When the tallying was completed, the two contenders each had 406 votes. The Wilkinson County Democratic Party Executive Committee did not certify a winner. Instead, a second primary election was held. The results of the second primary election were 499 votes for Hollins and 510 votes for Smith. Hollins filed a petition for judicial review of the election in the circuit court alleging numerous voting irregularities. After Smith filed a response and cross claim alleging fraud against Hollins, the Supreme Court ordered that a special tribunal hold an evidentiary hearing. After examining the challenged ballots and hearing testimony, the tribunal found that six additional votes should be added for Smith and twenty additional votes should be added for Hollins, making the final tally of 516 votes for Smith and 519 votes for Hollins. Hollins was declared the winner of the second primary. Both parties appeal. |
| Summary of Opinion Analysis: | Issue 1: Absentee ballots A number of disputed absentee ballots were not part of the final tally. After analyzing each ballot, there are 15 valid absentee votes for Hollins and 5 invalid absentee votes for Hollins. There are 5 valid absentee votes for Smith and 5 invalid absentee votes for Smith. The final corrected tally is therefore 514 (499 + 15) votes for Hollins and 515 (510 + 5) votes for Smith. Issue 2: Special election Section 23-15-937, which governs special elections for contested primary elections, provides that if the contestant (Smith) prevails in an election contest and the contestee (Hollins) has already taken office, the Governor, or the Lieutenant Governor in case the Governor be a party to the contest, shall call a special election for the office or offices involved. In this case the application of the statute will work an injustice. Smith and Hollins were the only two persons to run in the Democratic primary for the seat on the board of supervisors. Only Smith’s name should have been on the general election ballot, just as Hollins’ name was. Equity demands that Smith should be allowed to take the seat on the board of supervisors without any further action. However, because the statute applies and because the statute does not allow judges to use their discretion, a special election must be held. The case of Hatcher v. Fleeman, 617 So. 2d 634 (Miss. 1993) is overruled to the limited extent that the Court erroneously held there that a special election was not required. |
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