Wilkinson County hearings continue
Published Thursday, July 17, 2008
WOODVILLE — Judge Jim Persons is expected to rule this morning whether or not the Wilkinson County special general election will continue as planned, a move that not only change the date of the election, but also could delay an elected official from taking office.
The motion to delay the election, set for next Tuesday, was filed on behalf of Sheriff Reginald “Pip” Jackson because early voting did not begin when it was supposed to per a court order, and because it was not properly advertised in the local newspaper.
Circuit Clerk-elect Lynn Tolliver Delaney withdrew a motion to take office immediately because she does not have a challenger for the general election Wednesday, and so the delay would keep her from taking office longer than expected.
During testimony Wednesday, Wilkinson County Election Commission President Robert Arbuthnott testified the early voting did not begin until July 9, and that the election was only officially advertised once.
Attorneys representing those who do not want the delay, however, argued that because six of the last seven editions of the local newspaper, the Woodville Republican, have featured front page stories about the election, that the public was informed about the election date.
Attorney Everett Sanders, who represents Jackson, objected to that assertion on the grounds that stories in the newspaper are not the same as a legal advertisement.
Sanders questioned Arbuthnott at length about the procedures the election commission used to order the ballots.
Arbuthnott testified he was told by the secretary of state’s office he could not order the ballots until a state skeletal ballot was constructed, and that he was under the impression the election’s special masters would order the ballots.
After July 9, early absentee ballots were ordered with Jackson’s name appearing on the ballot before independent challenger Calvin Gaines’ name.
Arbuthnott testified he received a call from either the Circuit Clerk’s Office or special master Barry Ford — he did not remember who — stating he had filled out the wrong form for the absentee ballots, and so the election commission ordered a second set of ballots, this time with Gaines’ name appearing before Jackson’s.
The reason for the name order change was not the reason the commission ordered new ballots, but it was done as a corrective measure when the re-order was placed because the election commission always places the names on the ballots in alphabetical order, Arbuthnott said.
The new ballots were received July 14, but votes had already been cast on the old ballots.
Sanders said that situation would result in what he called a “built-in election contest.”
“If we allow this thing to go through, when is it going to stop?” Sanders said.
If a contest is filed and a judge decides to throw out one of the two sets of ballots, it could change the course of the election, Sanders said.
“We need not let a wrong be done and then allow for a remedy,” Sanders said.
It is important for Jackson to have the proper amount of time during absentee voting because he has historically done well in the early voting, Sanders said.
Attorney Amy Ryan, who represents Delaney, said that is not a good enough reason to change the date of the election, which would delay when her client can take office.
“Respectfully, Mr. Gaines is in the same boat as the sheriff,” Ryan said.
The problem is what effect it might have had on voters who would have voted early but did not do so because of the shorter absentee period, Persons said.
Even if there were some irregularities, the court does not have the authority to change the date of the election, which was pre-cleared by the Justice Department, Attorney Chris Kelly, who represents Gaines, said.
There are state statutes in place that would, in effect, be altered if the court did change the election, Kelly said.
“To order a change would be effectively judicially legislating from the bench,” Kelly said.
The court also decided Wednesday Attorney Red Allred could not represent district 2 supervisor candidate Kirk Smith in his challenge to the June 24 election because he has previously represented the Wilkinson County Democratic Committee, which would be a conflict of interest.