Judge: New election needed

Published 12:21 am Friday, February 22, 2008

WOODVILLE — Judge Jim Persons sent notice Thursday to all attorneys involved in the long-running Wilkinson County Democratic primary election contest that he intends to call a new election.

The notice was sent after Persons decided not to consider the absentee, affidavit or curbside ballots from the Aug. 7 election because a chain of custody could not be determined for them.

“The court cannot rely on the authenticity of the ballots, that they have not been tampered with,” Persons said. “None of the contents of those ballot boxes are to be relied on by the court. I have no confidence in the security of those boxes.”

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Because the number of paper ballots that were tossed out, Persons said the will of the voters could not be determined and a new election must be called.

Persons is expected to issue an official ruling within six days.

After ruling about the paper ballots, the court heard arguments from both sides of the case about why machine-counted ballots should or should not be considered as evidence Thursday.

The respondents in the matter — those who challenged the results of the election — are circuit clerk candidate Lynn Tolliver Delaney, supervisor candidate Kirk Smith and sheriff candidate Jessie Stewart. The Wilkinson County Democratic Executive Committee was also represented in the challenge.

Representing Smith, attorney Ben Piazza Jr. said it would be hard to find exact case law for keeping the machine ballots because until the recently mandated use of voting machines, tossing some ballots meant the entire ballot box had to be tossed.

But the machine-counted ballots are not the ballots in question, Piazza said.

“If you disregard the machine counts and call for a new election, you are allowing and even rewarding the (incumbents) for their fraudulent actions,” he said.

Attorney Mike Allred, representing the Wilkinson County Democratic Executive Committee, said it would be impossible for the incumbents to win the election without the paper ballots.

“There is a machine total that can be independently verified,” he said. “There is a bunch of paper that no one can validate.”

Representing Delaney, attorney Amy Ryan kept her argument short.

“You have a stack of good ballots, and you have a stack of bad ballots,” she said. “You count the good ballots.”

Representing incumbent Richard Hollins, attorney Carroll Rhodes said the machine ballots have not been entered into evidence to even be considered.

Current case law says that if any ballots are to be thrown out, all ballots are to be thrown out, and that if any fraud is present in an election a whole new election should be called, Rhodes said.

“If there are problems with a ballot box, you can’t throw out half the baby with the bathwater,” Rhodes said.

Attorney Deborah McDonald argued that if there was a problem with the chain of custody with the paper ballots, there was also one with the voting machine memory cards.

McDonald also submitted there was no fraud on the part of her client, Allen, to warrant throwing out the ballots.

“There may have been mistakes but there has been no fraud,” she said. “It is fundamentally unfair and a violation of due process to disenfranchise those voters (who voted absentee, affidavit or curbside).”

Representing Sheriff Reginald “Pip” Jackson, attorney Everett Saunders said he could not conceive how under the law the court could throw out the paper ballots.

But aside from that, he said he was confused as to where the trial stands.

“We are at a point where neither side has rested,” Saunders said. “The court has only heard one side of the case, so to make a factual decision without hearing our side seems a little unfair.”

When given a chance to respond, the attorneys for the challengers asked Persons to consider that the incumbents included unofficial machine vote counts in their sworn pleadings filed before the court.

Persons said the decision was complicated because it was not just a simple civil suit.

“What makes this a difficult decision is that we aren’t just considering two competing candidates, but the interest of the electorate,” he said.