Debra Waters v. James Gnemi

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2004-EC-00007-SCT
DEBRA WATERS
v.
JAMES “DANNY” GNEMI
DATE OF JUDGMENT: 11/13/2003
TRIAL JUDGE: HON. ALBERT B. SMITH, III
COURT FROM WHICH APPEALED: HOLMES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: MARVIN E. WIGGINS, JR.
ATTORNEYS FOR APPELLEE: LESLIE SCOTT
TOMMIE SULLIVAN CARDIN
NATURE OF THE CASE: CIVIL - ELECTION CONTEST
DISPOSITION: AFFIRMED - 06/02/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. Because of the Special Tribunal’s order calling for a new election, thus nullifying her
apparent victory in the first Democratic primary election for the office of District Three
Supervisor in Holmes County, Debra Waters appeals to us seeking relief. Finding that the
Special Tribunal appropriately set aside the results of the first primary election and ordered
a special second primary between Debra Waters and James “Danny” Gnemi, we affirm.
FACTS AND PROCEEDINGS BEFORE THE HOLMES COUNTY DEMOCRATIC
EXECUTIVE COMMITTEE AND THE SPECIAL TRIBUNAL
¶2. The relevant facts concerning the 2003 Democratic primary election for the office of
District Three Supervisor in Holmes County are for the most part undisputed. Roy Anderson,
James “Danny” Gnemi and Debra Waters qualified to run for the office of District 3
Supervisor. Gnemi was the incumbent, having served as District 3 Supervisor for almost
sixteen years at the time of the first primary election on August 5, 2003. Around 4:00 a.m.,
on August 6, 2003, the Holmes County Democratic Executive Committee (HCDEC)
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.1 Additionally, this announcement was made prior to the counting
of the affidavit ballots.2 Holmes County uses the Optical Mark Reading Equipment Voting
System (OMR) to scan and count its ballots.3 The OMR is programmed to “kick-out” ballots
1
These residual votes consisted of overvotes and undervotes. An overvote occurs when a citizen
votes for more than one candidate in a particular election on the ballot, and an undervote occurs when a
citizen fails to vote in a particular election on the ballot. Obviously, unless expressly noted on the ballot and
otherwise permitted by law, a voter cannot legally vote for more than one candidate in the same election, and
thus, in the case of an overvote, that ballot, while not totally void as to other elections appearing on the ballot,
is not counted for that particular election.
2
An affidavit ballot is utilized when the qualification of a citizen to vote in a particular election or
precinct is challenged at the polls. In order to preserve that citizen’s vote, the citizen casts an affidavit ballot
at the precinct, and at the time of the subsequent certification process, the county party executive committee
or the county election commission, as the case may be, will determine whether the affidavit ballot can be
counted.
3
Certainly, with the OMR, it ordinarily would not have taken as long as it did to count the ballots and
tally the results, but on that evening, there were persistent problems with the OMR stopping during the
scanning process.
2
containing overvotes and undervotes for visual examination by the appropriate election
officials. After the HCDEC 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. In order to arrive at the denominator to calculate the percentage of votes received
by each candidate in this supervisor’s election, the HCDEC added the total votes of the three
candidates (579 + 503 + 72) as well as the write-in (2) and residual (40) votes. This simple
math resulted in a total number of 1,196. Using the number 1,196 as the denominator, the
HCDEC calculated that Waters had received 48.41% of the vote (579 divided by 1,196),
Gnemi had received 42.05% of the vote (503 divided by 1,196), and Anderson had received
6.02% of the vote (72 divided by 1,196). Based on these percentages, it was obvious that there
would be a second primary election on August 26, 2003, between Waters and Gnemi, since no
candidate received a majority vote.
¶3. Keeping in mind that the August, 2003 primaries in Mississippi involved elections for
both state-wide and local offices, immediately after the first primary certification, each of the
82 circuit clerks had to commence preparation in that clerk’s respective county for the second
primary elections three weeks later. This preparation most importantly included the act of
having the ballots printed. This process was commenced in Holmes County, and the second
primary ballot included the Waters/Gnemi election. However, during this time-frame, Waters
telephoned both the Secretary of State’s office and the Mississippi Democratic Party office
and talked with unidentified individuals in those respective offices. According to Waters, she
was informed in these phone conversations that the residual votes and the write-in votes should
3
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, and thus, the Democratic nominee for the office of District Three Supervisor in
Holmes County.4
¶4. On August 21, 2003, the Holmes County Circuit Clerk’s office received a fax
transmission from the Secretary of State’s office addressed to the HCDEC. This fax 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.
Around 9:30 a.m. on August 21, 2003, Gnemi (who had been campaigning since August 6h for
t
a second primary) received a telephone call from a supporter inquiring “what’s going on at the
courthouse?” Upon placing a phone call to Earline Wright-Hart, the Holmes County Circuit
Clerk, Gnemi learned that he would “probably be getting a call.” Around noon, Gnemi in fact
received a phone call from a member of the HCDEC informing Gnemi to be at the courthouse
at 1:30 p.m. that day. Upon arrival at the courthouse, Gnemi was informed by Elma Maxine
Smith, the HCDEC 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
4
By reducing the original denominator of 1,196 by the number of residual and write-in votes, the new
denominator is 1,154. Accordingly, the re-calculated percentages are Waters – 50.17% of the vote (579
divided by 1,154); Gnemi – 43.59% of the vote (503 divided by 1,154); and, Anderson – 6.24% of the vote
(72 divided by 1,154). Thus, after the re-calculation without the residual and write-in votes included in the
count, Waters received one vote more than necessary to achieve a majority vote.
4
election.5 Smith showed Gnemi the fax from the Secretary of State’s office addressed to
“Mrs. Maxine Smith, as requested.” This fax transmission consisted of the 1991 Attorney
General’s opinion concerning a school bond issue, with discussion as to how to calculate
percentages in elections involving residual and write-in votes. Smith then handed Gnemi a
typed document which stated:
A question was raised regarding the election results of the District 3
Supervisors (sic) race.6
The Holmes County Democratic Executive Committee contacted the Secretary
of State Office (sic) to receive information and a recommended ruling on the
question raised.
The Holmes County Executive Committee also solicited information from the
Attorney General’s Office as well as the State Democratic Executive
Committee.
Based upon the information received from the above stated agencies, the
Holmes County Executive Committee has ruled that Ms. Debra Waters is the
declared winner in the District 3 Supervisors (sic) race on August 5, 2003.
¶5. Knowing that the second primary had already been set, and that absentee votes were
already being cast by the voters in the Waters/Gnemi run-off, Gnemi, after being blind-sided
5
It must be kept in mind that the HCDEC’s decision to declare Waters the Democratic nominee, thus
nullifying a second, was made sua sponte without a candidate filing a written petition or protest with the
HCDEC, and after the HCDEC had certified the first primary election results to the Secretary of State, which
certification revealed that a second primary election had been declared between Waters and Gnemi for
District 3 Supervisor.
6
We now know that this “question” was surreptitiously raised by Waters by telephoning the offices
of the Secretary of State and the Mississippi Democratic Party. This action was taken in lieu of attempting
to avail herself of the statutory remedies to address election grievances so that all affected candidates would
have had fair notice as to her intentions.
5
with this revelation,7 not surprisingly wanted to pursue the issue and thus inquired of Smith and
the HCDEC members as to what rights he had and whether he could have a “recount.”8 After
this conversation, Gnemi went to the Circuit Clerk’s office and prepared a handwritten note
which stated, “I wish to have a recount in Dist. 3 election. Only 2 votes difference for a
runoff.” Gnemi signed and dated this note and then Hart stamped the note as filed on August
21, 2003. Gnemi then went back upstairs in the courthouse where the HCDEC was meeting
and in due course, Hart returned and informed the HCDEC that Gnemi had requested a
“recount.”
¶6. The next day, Gnemi and Waters were present, and Hart presented them with a document
which Gnemi and Waters both signed as “agreed to form.” The document was dated August 22,
2003, and contained language confirming that Waters, on August 21, 2003, had been declared
by the HCDEC to be the winner of the first primary election, that Gnemi had requested an
examination of the ballot boxes the previous day, that Waters waived the statutory three-day
notice,9 and that the examination commenced at 10:45 a.m. and ended at 4:36 p.m. the same
day. Since there are six precincts in District 3, Gnemi, during the examination process that
day, expected to be presented with six metal precinct ballot boxes which had been sealed since
7
At a later hearing before the Special Tribunal, Gnemi testified he was “floored” when he learned
that, after campaigning for 15 days since the first primary, and with knowledge that absentee ballots were
already being cast in the District 3 Supervisor’s election, the second primary in the Waters/Gnemi election
had been abruptly canceled by unilateral action of the HCDEC.
8
As will be discussed in due course, there is no such statutory creature as a “recount” in our election
laws.
9
See Miss. Code Ann. § 23-15-911 (Rev. 2001).
6
the August 5th primary. However, instead, he was presented with two cardboard boxes
containing commingled ballots and other election materials from the six metal precinct ballot
boxes.10 When Gnemi inquired as to why these election materials were not still sealed in the
metal ballot boxes, Hart stated that the election materials from the first primary election had
to be emptied into the two cardboard boxes so that the metal ballot boxes could be re-used for
the upcoming second primary. Hart likewise disclosed two documents signed by Wilbur B.
Redmond, the Holmes County District Three Election Commissioner. These documents
revealed that Redmond certified that the two cardboard boxes contained the election materials
from the August 5th Democratic primary for District 3, and that Redmond had removed these
materials from the precinct ballot boxes on August 19, 2003, in preparation for the second
primary.11 Despite his concern about the method of preservation of the election materials,
Gnemi examined the contents of the two cardboard boxes. Hart was able to identify the
election materials by precinct, and as Gnemi concluded his examination of the election
materials from a particular precinct, Hart placed these materials, not in one of the two
cardboard boxes, but instead in the appropriate metal precinct box, which was then double-
sealed.
¶7. After the examination of the election contents, and upon reflection, Gnemi filed an
unsworn handwritten protest with the HCDEC at 10:30 a.m., August 25, 2003, the day before
10
The condition of these cardboard boxes will be discussed later in the opinion.
11
The involvement of Redmond and other Holmes County Election Commissioners in this Democratic
primary election will be discussed in more detail later in this opinion.
7
the second primary. Some of the complaints contained in Gnemi’s petition were (1) that after
declaring a second primary in the District 3 Supervisor’s election, the HCDEC abruptly
canceled the second primary, (2) that at the time of the cancellation of the second primary just
4 days prior to the scheduled date,12 ballots for the Gnemi/Waters election had been printed
and absentee voting was already occurring, (3) that Gnemi was not notified of the HCDEC’s
action until the afternoon of August 21, 2003, after he had been campaigning for the second
primary election since August 6, 2003, and (4) that at the time of the examination of the
election materials, it was obvious that these materials had been stored in unsecured cardboard
boxes. No action was taken by the HCDEC on Gnemi’s petition prior to the August 26th
second primary, and no official notice had been given to the voting public regarding the
HCDEC’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 HCDEC refused to certify these election returns based on its prior action in
canceling the second primary and declaring Waters to be the Democratic nominee to face
general election opposition for the office of District 3 Supervisor.
¶8. On or about August 29, 2003, Gnemi received from the HCDEC a letter dated August
28, 2003, informing him that his petition was denied and advising him of his right to appeal the
HCDEC’s findings. On September 23, 2003, Gnemi, with counsel, filed his sworn petition for
12
The record reveals that the HCDEC actually canceled the second primary for District 3 Supervisor
on August 21, 2003, which was five (not four) days prior to the second primary, which was held on August
26, 2003.
8
judicial review in the Circuit Court of Holmes County. Upon being notified, the Chief Justice
of this Court, pursuant to statute, promptly entered an order appointing Hon. Albert B. Smith,
III, a circuit judge from the Eleventh Circuit Court District, to preside over all proceedings in
this election contest. Judge Smith promptly performed his statutory responsibilities and
established an expedited discovery schedule, but due to existing scheduling conflicts of some
of the attorneys, a hearing could not be held until October 27, 2003.
¶9. Thus, on October 27, 2003, Judge Smith called this case up for a hearing at the Holmes
County Courthouse in Lexington.13 Gnemi and Waters were present and represented by
counsel. Judge Smith received sworn testimony from five witnesses who were called in
Gnemi’s case-in-chief, and sworn testimony from four witnesses who were called in Waters’s
case-in-chief. The parties exercised their right of cross-examination of the witnesses and
Judge Smith admitted 14 exhibits into evidence. Judge Smith also allowed opening statements
at the commencement of the hearing and closing arguments at the conclusion of the
presentation of the evidence.
¶10. At the conclusion of the hearing, Judge Smith rendered a bench opinion in open court
which was later memorialized via a final order dated November 13, 2003, and subsequently
entered on November 17, 2003. We briefly quote from Judge Smith’s very detailed order:
[T]hat there was a violation of Miss. Code Ann. § 23-15-911 due to the ballots
cast for the office of Supervisor, Beat 3, Holmes County, Mississippi, being
13
It is clear from the record that, notwithstanding the provisions of Miss. Code Ann.§ 23-15-931 (Rev.
2001), Judge Smith did not convene a special tribunal with the five county election commissioners to hear this
primary election contest. While the record is silent as to the reasons for Judge Smith’s failure to convene the
special tribunal, the impracticality of such action in this case will soon become readily apparent.
9
removed from the ballot boxes used in the primary election and being placed in
cardboard boxes prior to the expiration of the requisite time period set forth in
Miss. Code Ann. § 23-15-911.
[T]hat the violation of Miss. Code Ann. § 23-15-911 is a total departure from
the mandatory provisions of the statute, preventing Plaintiff James “Danny”
Gnemi from being able to file any type of valid protest and therefore resulting
in Mr. Gnemi losing his right to have a recount.
¶11. Having made these findings, Judge Smith, via the same order, directed, inter alia, that
(1) the November 4, 2003, Holmes County general election for District 3 Supervisor be
postponed; (2) a special primary runoff election between Waters and Gnemi be held on
December 16, 2003; and, (3) a special general election for District 3 Supervisor be held on
January 6, 2004, between the emerging Democratic nominee and the Independent candidates
who had qualified prior to the expiration of the qualifying deadline. In the same order, Judge
Smith quite appropriately issued directions to the election officials concerning preparation for
these elections, and Judge Smith likewise quite appropriately declared that since the qualifying
deadline had long since passed, it would not be reopened to allow additional candidates to run
in these special elections.
¶12. In due course Waters, timely appealed to us seeking relief from the circuit judge’s
order.
DISCUSSION
¶13. We recite here basically verbatim the five issues which Waters requests that we
consider: (1) The special tribunal was without jurisdiction to consider the petition for judicial
review filed by James Gnemi, who failed to comply with the requisites mandated by statute;
10
(2) The special tribunal committed error by granting relief under the petition for judicial
review on the grounds of an asserted violation of Miss. Code Ann. § 23-15-911 (1972), as
amended; (3) The special tribunal committed error by granting relief under the petition for
judicial review on the grounds of an asserted denial of Gnemi’s “right to a recount;” (4) The
special tribunal committed error by granting relief under the petition for judicial review since
the decision was not supported by the findings cited in the order of the special tribunal; and,
(5) The special tribunal committed error in subjecting the innocent voters of District Three
of Holmes County to the costs of the technical violation of an election procedure by the
election officials, without any finding of fraud or of an attempt to manipulate the outcome of
the election in favor of, or against, one candidate over another.
¶14. Before commencing a thorough discussion of the issues, we feel compelled to make
at least a few observations. When this Court judicially enacted the Mississippi Rules of Civil
Procedure effective on and after January 1, 1982, it was made abundantly clear that there were
certain civil actions which quite appropriately should continue to be governed by statute. Miss.
R. Civ. P. 81(a)(4) expressly states that proceedings pertaining to election contests would
continue to be governed by statutory procedures with the rules of civil procedure having
limited applicability. Our cases are legion where we have relied heavily on legislatively
enacted election laws to determine the appropriate outcome in election contests which were
appealed to us. Today’s case is no exception, and in fact we recently again emphasized the role
of our statutes which appropriately guide both our courts and the election officials who
shoulder the responsibility of assuring fairness in the election process throughout our State.
11
In Barbour v. Gunn, 890 So. 2d 843, 847 (Miss. 2004), we addressed one of the purposes of
Miss. Code Ann. § 23-15-927 (Rev. 2001), which provides for the filing of a petition for
judicial review in circuit court:
The statute was crafted in that fashion to preserve the voices of the voters of
Mississippi. If the trial court could not hear such a complaint, a contested
primary might very well drag on past the general election, thereby
disenfranchising the members of a political party. This is not permissible. The
right to vote is an important badge of citizenship that should be treasured by all
citizens, and Mississippi courts must safeguard it accordingly. The trial court
acted in accordance with the will of the Legislature and in the best interests of
the citizens of Mississippi by taking jurisdiction of the election contest.
Id. at 847.
¶15. Another point should be made abundantly clear. The statutes which govern primary
election contests and the statutes which govern general election contests are altogether
different creatures. A person wishing to contest a party primary election must file a petition
for judicial review in circuit court, at which time, upon notice by the circuit clerk, the Chief
Justice of the Supreme Court will appoint a circuit judge or chancellor from a district not
embraced by the county in which the election irregularities allegedly occurred, and the duly
appointed judge will proceed to hear the election contest as the presiding judge of a special
tribunal, composed of the judge and the five county election commissioners. Miss. Code Ann.
§§ 23-15-927, -929, -931 (Rev. 2001). In a primary election contest, an election should be
voided only if there has been such a departure from statutory compliance “as to destroy the
integrity of the election and make the will of the qualified electors impossible to ascertain.”
Riley v. Clayton, 441 So. 2d 1322, 1328 (Miss. 1983)(citing Ulmer v. Currie, 245 Miss. 285,
12
147 So. 2d 286 (1962); Sinclair v. Fortenberry, 213 Miss. 219, 56 So. 2d 697 (1952);
Gregory v. Sanders, 195 Miss. 508, 15 So. 2d 432 (1943)). This Court has stated:
We have employed a two pronged test which though it has been stated in
different ways, essentially provides that special elections will be required only
when (1) enough illegal votes were cast for the contestee to change the result
of the election, or (2) so many votes are disqualified that the will of the voters
is impossible to discern.[] Walker v. Smith, 215 Miss. 255, 56 So. 2d 84,
suggestion of error, 215 Miss. 263, 264, 57 So. 2d 166, 167 (1952); Pyron v.
Joiner, 381 So. 2d 627 (Miss. 1980).
Noxubee County Democratic Exec. Comm. v. Russell, 443 So. 2d 1191, 1197-98 (Miss.
1983). On the other hand, a person wishing to contest a general election must file a petition
in circuit court, and the case is ultimately tried before a duly impaneled jury which by a verdict
“shall find the person having the greatest number of legal votes at the election.” Miss. Code
Ann. § 3-15-951 (Rev. 2001).14 Obviously, in today’s case, we are confronted with a primary
election contest as opposed to a general election contest.
¶16. Finally, we note that election contests (both primary and general) are by their very
nature required to be put on a “fast-track” by both election officials and the courts. While we
all want to assure fairness and discern the will of the voters, we must move promptly so as to
not disrupt the election process. Candidates and their families, friends and supporters have
worked too hard. But admittedly, this whole process is really not about the candidates, but
14
Unlike a primary election contest, where the statute requires that the Chief Justice appoint a circuit
judge or a chancellor “of a district other than that which embraces the county or any of the counties, involved
in the contest or complaint,” in a general election contest, the circuit judge in the district where the election
contest is filed may preside over the trial, although sua sponte recusals are not uncommon in general election
contests.
13
instead it is about preserving the integrity of the election process and assuring that the voices
of innocent voters are heard. To this end, we have stated:
When deciding whether a special election is warranted, we recognize competing
interests which must be weighed and balanced. While the voters are not parties
to this contest, their interests are paramount. Special elections are a great
expense for the county and its taxpayers. Beyond that, the turnout for a special
election is never as great as when there are a number of candidates on the slate.
By contrast, we feel that the rights of the individual candidates cannot be
allowed to overshadow the public good.
As far as the public good is concerned, the rights our law gives to losing
candidates to contest elections form a double edged sword. While they serve
to prevent the fraudulent manipulation of the public will, they necessarily
provide a way for the unsuccessful candidate to use innocent human errors to his
own advantage, thereby winning a second chance.
Hatcher v. Fleeman, 617 So. 2d 634, 640-41 (Miss. 1993) (quoting from Noxubee County,
443 So. 2d at 1197).
¶17. With this backdrop, we now address the issues in today’s case, and in so doing, we
restate and reorder for clarity the issues as presented to us by Debra Waters.
I. WHETHER THE SPECIAL TRIBUNAL HAD
JURISDICTION TO CONSIDER GNEMI’S PETITION FOR
JUDICIAL REVIEW.
¶18. 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. Specifically, Waters alleges five separate procedural
deficiencies. Waters alleges that Gnemi’s petition filed with the HCDEC was unsworn; that
Gnemi’s petition for judicial review with attached documentation was not properly verified;
that Gnemi failed to meet the express statutory requirement of obtaining proper certification
14
from two practicing attorneys; that 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, that Gnemi’s pleadings were insufficient to maintain an action with the
special tribunal.
A. Was Gnemi’s petition filed with the HCDEC properly sworn?
¶19. Waters alleges that Gnemi failed to file a sworn petition when contesting the primary
election before the HCDEC. Waters is correct. However, Gnemi was not required to file a
sworn petition with the HCDEC. Miss. Code Ann. § 23-15-921 (Rev. 2001) sets out the
procedure to be followed when filing a protest with a county party executive committee. That
statute states in pertinent part:
[A] person desiring to contest the election of another person returned as the
nominee of the party to any county or county district office, or as the nominee
of a legislative district composed of one (1) county or less, may, within twenty
(20) days after the primary election, file a petition with the secretary, or any
member of the county executive committee in the county in which the election
was held, setting forth the grounds upon which the primary election is contested.
This statute does not state or imply a requirement that the written petition filed with the county
executive committee must be sworn. Waters goes further and alleges that the applicable
statute governing the filing of a circuit court petition for judicial review requires that not only
must the petition for judicial review be sworn, but there must also be attached to this petition
a sworn copy of the petition filed with the county executive committee. Waters is correct;
however, she misinterprets the meaning of the phrase “sworn copy of the petition.” The
15
applicable statute governing the filing of a petition for judicial review is Miss. Code Ann. § 23-
15-927, which states in pertinent part:
[T]he contestant shall have the right forthwith to file in the circuit court of the
county wherein the irregularities are charged to have occurred.......a sworn copy
of his said protest or complaint, together with a sworn petition, setting forth
with particularity wherein the executive committee has wrongfully failed to act
or to fully and promptly investigate or has wrongfully denied the relief prayed
by said contest, with a prayer for a judicial review thereof.
This statute specifically governs the circuit court action after a contestant has received no
relief from the county executive committee. More than a procedural technicality, the
requirement that the circuit court petition for judicial review be sworn insures a subsequent
reviewing special tribunal that the matter before it is meritorious and reviewable, having been
formerly and properly ruled upon by the county party executive committee.
¶20. In Miller v. Oktibbeha County Democratic Executive Committee, 377 So. 2d 917
(Miss. 1979), we examined the sworn contest requirement at issue in this case. In citing our
earlier decisions in Robinson v. Briscoe, 326 So. 2d 796 (Miss. 1976); and, Darnell v. Myres,
202 Miss. 767, 32 So. 2d 684 (1948), we affirmed the special tribunal’s dismissal of a primary
election contest petition and stated that “[t]he contest must be sworn as originally filed with
the Executive Committee, the purpose of the statute being to guard against frivolous
interruptions of the orderly progression of the primary election process.” Miller, 377 So. 2d
at 918. We further stated in Miller that the contestant’s failure to have the contest “sworn as
originally filed with the Executive Committee” was a jurisdictional defect.
16
¶21. We can understand Waters’s reliance on Miller, Robinson, and Darnell. Unfortunately,
this Court, in Miller, relied on Robinson, which had misinterpreted Darnell.
In a three-paragraph opinion, this Court, in Robinson, affirmed the circuit court’s dismissal of
an election contest due to the contestant’s alleged failure to comply with the statute
concerning the protest or complaint which is filed with the county party executive committee.
Our opinion in Robinson states in pertinent part:
This is an appeal from the Circuit Court of Marshall County which sustained a
plea in bar of the appellee, Wayne Briscoe, and dismissed the case against him.
The court found the appellant, Sam T. Robinson, had not complied with the
requirements of Mississippi Code Annotated section 23-3-45 (1972)15 wherein
‘the contestant shall have the right forthwith to file with the circuit court .... a
sworn copy of his said protest or complaint, together with a sworn petition.....’
The issue before the Court is whether the contestant in an election contest
complies with the statute when he files a petition for judicial review and attaches
to it an unsworn copy of the protest or complaint filed with the party executive
committee. It is the opinion of the Court that all issues presented are controlled
by Darnell v. Myres, 202 Miss. 767, 32 So. 2d 684 (1947). The statute requires
the protest or complaint to be sworn to.
326 So. 2d at 796-97.
¶22. In Darnell, the winner of the primary election subsequently lost an election contest
before the county party executive committee and sought judicial review. Upon commencing
an action for judicial review by a special tribunal, the primary election winner failed to attach
as an exhibit to his petition a copy of the answer which he had filed as the contestee before the
party executive committee; therefore, the petition for judicial review was dismissed by the
15
This statute is now Miss. Code Ann. § 23-15-927 (Rev. 2001).
17
special tribunal. In upholding the dismissal, we discussed the procedural prerequisite
concerning the filing of pleadings with the county executive committee:
[W]hen the contestee [the original winner] would complain to the special
judicial tribunal, he must show by exhibit with his complaint what he had placed
before the executive committee, either by specific denials or by specific cross-
complaint, and wherein the executive committee had wrongfully acted or failed
to act on what he had thus placed before the committee for its determination and
action.
Darnell, 202 Miss. at 775, 32 So. 2d at 686. The statute thus assures that the special judicial
tribunal will not “examine into matters not presented by the original contest or protest before
the executive committee, save as to matters germane which happened during or since the
hearing before the executive committee, and save as to matters merely explanatory or
incidental.” 202 Miss. at 773, 32 So.2d at 685 (citing Harris v. Stewart, 187 Miss. 489, 507,
193 So. 339 (1940)). Stated clearly, we reasoned:
It is plain enough on a careful analysis of Sec. 15, Chap. 19, Laws, 1935,
Ex.Sess., Sec. 3182, Code 1942 [now Miss. Code Ann. § 23-15-927], that what
the special tribunal created under that chapter is to hear and determine is in what
respect or respects the party 'executive committee has wrongfully *** denied
the relief prayed by said contest,' meaning of course the contest theretofore
filed by the contestant with and before the executive committee under Sec.
3143, Code 1942 [now Miss. Code Ann. § 23-15-921]. So it is then that Sec.
15, Sec. 3182 [now Miss. Code Ann. § 23-15-927], requires that the petition for
a judicial review shall exhibit as an essential part of the petition a sworn copy
of his protest or complaint theretofore made before the executive committee,
from which it follows that if the contestant made no protest or contest in
writing before the executive committee, there can be no jurisdiction in the
special tribunal to review the action of the executive committee, and further that
unless a sworn copy of his said protest or contest before the executive
committee is made a part of his petition for a judicial review, the said
petition will present no cause of action for such a review.
32 So. 2d at 685 (emphasis added).
18
¶23. It is thus abundantly clear that the Court in Robinson misinterpreted the above language
from our decision in Darnell. All we said in Darnell was that the original contestee failed to
file any written responsive pleadings before the party executive committee, and that since he
failed to attach to his circuit court petition for judicial review a sworn copy of any pleadings
he filed with the executive committee, the special tribunal had no jurisdiction to judicially
review the action of the party executive committee. The Court in Robinson erroneously
interpreted Darnell to require that a circuit court petition for judicial review must have
attached a “copy of the sworn petition” filed with the party executive committee, as opposed
to a “sworn copy of the petition.”
¶24. Thus, while we agree with Waters that Miss. Code Ann. § 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, we part ways with Waters when she asserts that the protest or petition
filed with the county executive committee must be sworn and that the subsequent filing of the
petition for judicial review must have attached thereto a copy of the previously sworn petition
filed with the county executive committee. Waters, like the Court in Robinson, misinterprets
our decision in Darnell because she interprets Section 23-15-927 to require that there be
attached to the petition for judicial review a “copy of the sworn petition” filed with the county
executive committee. The statute does not require this. What is required to be attached to the
petition for judicial review is “a sworn copy” of the petition filed with the county executive
19
committee, not a “copy of the sworn petition” filed with the county executive committee. If
we accepted Waters’s interpretation of Section 23-15-927 and our case law, we would in
essence judicially abrogate Miss. Code Ann. § 23-15-921, which clearly does not require that
a sworn petition be filed with the county executive committee. Further, Waters’s interpretation
of the statute would have us say that while Section 23-15-921 does not require that the petition
filed with the county executive committee be sworn, that same petition has to be sworn when
it is attached as an exhibit to the petition for judicial review which is subsequently filed in
circuit court. This is an impossibility.
¶25. Here is what Gnemi quite appropriately did in today’s case. He filed his petition for
judicial review in the Circuit Court of Holmes County. There were numerous attachments to
the petition for judicial review, including his handwritten note of August 21, 2003, asking for
a “recount,” the circuit clerk’s handwritten note of August 22, 2003, signed by both Waters and
Gnemi, confirming that Gnemi had requested an examination of the ballot boxes, and Gnemi’s
unsworn handwritten protest which he signed and filed with the HCDEC on August 25, 2003.
Also attached to the circuit court petition for judicial review is a “Verification” which states,
“Personally came and appeared before me, the undersigned authority in and for the aforesaid
jurisdiction, James “Danny” Gnemi, who being by me first duly sworn states on oath that the
matters and things contained in the above and foregoing are true and correct to the best of his
knowledge, information, and belief.” This verification was signed by Gnemi before the
Chancery Clerk of Leake County, Mississippi and notarized by a Leake County deputy chancery
clerk.
20
¶26. In this case, we can thus state with confidence that Gnemi unquestionably complied with
the provisions of Section 23-15-927, and our applicable case law, 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 HCDEC. By so doing, the special tribunal was empowered with jurisdiction to
hear the case and was clearly informed of the issues which Gnemi wanted the special tribunal
to review.
¶27. Accordingly, we today expressly overrule Robinson, and to the extent that Miller can
be interpreted to have been decided based on Robinson, we likewise overrule Miller to that
limited extent.
¶28. Thus, this assignment of error is wholly without merit.
B. Was Gnemi’s circuit court petition for judicial review properly
sworn?
¶29. Waters asserts that the oath attached to Gnemi’s petition for judicial review was
insufficient as filed. Specifically, Waters directs our attention to the “Verification” discussed
supra, and argues:
Gnemi further failed to swear to the petition for judicial review when filed. His
attorney signed the complaint, as any other civil action, on September 23, 2003.
A document purporting to be a “Verification” recited that James Gnemi on oath
stated that the matters and things in the said petition were true and correct, upon
information and belief – on September 22, 2003, by a separate document
attached to the said petition, which was dated September 23, 2003.16
16
Evidently, one of Waters’s concerns about the verification is the fact that Gnemi signed the
verification a day before his attorney signed the petition for judicial review to which the verification is
attached. While Waters offers authority to generally attack the verification attached to the petition for judicial
review, she offers no authority to show us why Gnemi’s verification is fatally defective because it contains
a date different than the date of the petition. Waters’s failure to cite any authority to support a particular
21
¶30. In support of this argument, Waters cites Fillingane v. Breland, 212 Miss. 423, 54
So. 2d 747 (1951), a case where this Court addressed the verification of a primary election
contest petition. In Fillingane, Breland and Fillingane ran in the Democratic primary for
District Five Supervisor in Perry County. Breland received 171 votes and Fillingane received
170 votes. Fillingane promptly wrote the county executive committee requesting that the
committee investigate certain irregularities and declare a new election. Fillingane then filed
a sworn petition of protest with the county executive committee,17 again asserting
irregularities, including an incident where a ballot was allegedly marked with an ordinary lead
pencil. On Breland’s motion, the county executive committee dismissed Fillingane’s petition,
whereupon Fillingane then filed a sworn petition for judicial review, which petition “carried
forward” the assertions contained in his initial petition filed with the county executive
committee. Likewise, Fillingane attached to his sworn petition for judicial review, a certified
copy of his original protest as well as the proceedings before the county executive committee.
Fillingane’s petition for judicial review contained an oath or verification similar to the
verification in the case sub judice in that Fillingane signed an oath which, inter alia, stated that
proposition precludes this Court from being able to consider and address the issue on appeal. Lauro v.
Lauro, 847 So. 2d 843, 851 (Miss. 2003); Grey v. Grey, 638 So. 2d 488, 491 (Miss. 1994).
17
Fillingane did more than the statute required in filing a sworn petition before the county executive
committee. In fact this Court, in Fillingane, stated, inter alia: “The original protest [filed before the county
executive committee] was similarly verified, so that we need not decide whether it was required to be sworn
to, or whether the ‘sworn copy’ of the protest required on appeal relates to the protest as originally filed.”
212 Miss. at 436, 54 So.2d at 749. We are confident that had this Court, in Fillingane, deemed it necessary
to address this issue, we would have determined that the statute clearly does not require that the original
petition or protest filed with the county executive committee be sworn.
22
“the matters and things set forth in this petition......are true and correct to the best of his
knowledge, belief and information.” While the special tribunal made certain factual findings
based on Fillingane’s allegations, the tribunal dismissed the petition because it was not “a
sworn petition under Code 1942, Section 3182.”18 212 Miss. at 435, 54 So.2d at 748-49. In
reversing the special tribunal’s dismissal, we quoted from Griffith’s Chancery Practice,
Section 175, and stated:
“The correct allegation must be not less positive than this: The complainant has
been informed and believes, and upon such information and belief charges the
facts to be, stating them as facts, or it may be stated thus. Complainant charges,
as he is informed and believes, stating the facts charged.” This section is
documented by cases involving the Code section just referred to, and therefore
states a rule more stringent than that which is applicable to the sufficiency of the
oath considered apart from the statute. It will be seen that the affiant states that
the allegations of the petition are true and correct. Its efficacy is not impaired
by adding that the assurance of such truth is derived from belief or information
as indeed are most assertions of fact. Our conclusion could, if necessary, take
reinforcement from Section 3158 which requires “an ordinary and reasonable
construction * * * to accomplish its purposes.”
212 Miss. at 436, 54 So. 2d at 749. Finally in Fillingane, we stated the verification of the
petition for judicial review “could not well have been more definite and we hold that it need
not have been.” Id.
¶31. Thus, consistent with Fillingane, Gnemi’s verification attached to his petition for
judicial review was more than adequate and in compliance with the applicable provisions of
Miss. Code Ann. § 23-15-927 (Rev. 2001).
¶32. Accordingly, this issue is without merit.
18
This 1942 code section was the predecessor statute to Miss. Code Ann. § 23-15-927.
23
C. Was Gnemi’s circuit court petition for judicial review properly
certified by two practicing attorneys?
¶33. Waters next claims that Gnemi’s petition for judicial review lacked the proper
accompanying certificates from two practicing attorneys. The applicable statute states in
relevant part:
[S]uch petition for judicial review shall not be filed unless it bear the certificate
of two (2) practicing attorneys that they and each of them have fully made an
independent investigation into the matters of fact and of law upon which the
protest and petition are based and after such investigation they verily believe that
the said protest and petition should be sustained and that the relief therein
prayed should be granted.........
Miss. Code Ann. § 23-15-927. This statutory requirement furthers the goal contemplated by
the legislature in its promulgation of Section 23-15-927. Accordingly, it provides yet another
express obstacle to the initiation of frivolous partisan litigation. In Harris v. Stewart, 187
Miss. 489, 193 So. 339 (1940), this Court discussed this statutory requirement, stating:
[T]he evident and material purpose of the requirement of the certificate of two
independent practicing attorneys was to prevent, or at least to minimize, the
bringing before the courts of captious or unsubstantial political contests of
primary elections,--that such a certificate would dependably show that there was
real merit from a substantial legal standpoint in the proposed contest, and would
tend to forestall, in a large measure, spiteful partisan litigation which would
needlessly cast doubt upon the future title of the successful candidate to the
nomination for the public office involved.
193 So. at 343.
¶34. This two-practicing attorney requirement has been strictly construed and held to be
jurisdictional. In Pearson v. Jordan, 186 Miss. 789, 192 So. 39 (1939) we cited our decision
24
in Pittman v. Forbes, Miss., 186 Miss. 783, 191 So. 490 (1939) and once again stated, “that
the certificate should be signed by unbiased lawyers; and that ‘Such a purpose eliminates
attorneys who represent a contestant at the time their investigation of the matter is made, or
at the time his petition for a judicial review is filed.’” Pearson, 192 So. at 40. In dismissing
the petition for judicial review in Pearson, we held the statutory certificate of two
disinterested practicing attorneys to be jurisdictional:
It follows, therefore, that the special tribunal was without jurisdiction to hear
and determine the cause; and that this Court is therefore without jurisdiction to
hear it on appeal. The statute is mandatory, using as emphatic language as could
be employed, under the circumstances
********************
The right of a contestee to an office to some extent is tainted by the proceeding;
and it is important that this independent investigation should be made by
disinterested attorneys, having no connection with the case. The certificate of
the two disinterested attorneys is just as important as the petition itself, and is
jurisdictional.
Id.
¶35. While Waters has submitted the issue and the appropriate rule for our review, she has
failed to support her contention with any evidence of a failure on the part of Gnemi to meet
the statutory mandate. Attached to Gnemi’s petition are two separate certificates, each signed
by a different attorney. Other than the name of the attorney, the attorney’s Mississippi Bar
number, and the attorney’s mailing address, both certificates are identical. Each certificate
states that the attorney is a licensed and practicing attorney in the state of Mississippi and that:
1. I have fully made an independent investigation into the matters of
fact and of law upon which the foregoing protest and petition are
based; and,
25
2. After such investigation, I verily believe that the protest and
petition should be sustained and that the relief therein prayed
should be granted.
The language of paragraphs one and two of the attorneys’ certificates is identical to the
language of the statute. We are at a total loss as to what else Waters believes these two
attorneys and Gnemi could have done, or should have done, to strictly comply with the
pertinent provisions of Miss. Code Ann. § 23-15-927 regarding the attorneys’ certificates.
Moreover, the record evidences not only that two attorney certificates were attached in support
of Gnemi’s petition but that such submissions were made by disinterested attorneys based on
independent investigation.
¶36. We thus find this issue to be without merit.
D. Was Gnemi’s circuit court petition for judicial review properly
accompanied by the required cost bond?
¶37. Waters asserts that Gnemi’s cost bonds fail to meet the statutory requirements. Miss.
Code Ann. § 23-15-927 states in pertinent part:
[T]he petitioner shall give a cost bond in the sum of Three Hundred Dollars
($300.00), with two (2) or more sufficient sureties conditioned to pay all costs
in case his petition be dismissed, and an additional bond may be required, by the
judge or chancellor, if necessary, at any subsequent stage of the proceedings.
Waters’s specific complaints are that “none of [the cost bonds] bear the approval of the clerk,
and all three bear dates different from the petition, the first being dated September 22, 2003,
the third being dated September 19, 2003, and the second not being signed at all by Gnemi.”
Additionally, Waters asserts that Gnemi filed his cost bond in piecemeal fashion, with some
of the pages being facsimile copies. Collective Exhibit 14 attached to the petition for judicial
26
review consists of: First page – Cost Bond in the amount of $300.00, with the required
statutory language, signed by Gnemi and Holt Smith as surety. The other signature line for a
surety contains no signature but does have typed on the line “See Attachment.” This document
is a facsimile copy and is dated September 22, 2003. Second page – Bond for Costs (in the
amount of $300.00) setting out that Gnemi is the principal and Travelers Casualty and Surety
Company of America, Hartford, Connecticut, is the surety, and again there appears the
statutory requirement concerning the conditions of the bond. There is a signature line for
Gnemi, with a check mark, but no signature. On the signature line for an attorney-in-fact and
Mississippi Resident Agent for Travelers appears the signature of “Anita Johnson.” The
signature line for approval by a circuit judge is blank. This document is dated September 19,
2003. Third page – This is a facsimile copy of the second page, except that Gnemi’s signature
appears on this page. Again, the signature line for approval by a circuit judge is blank. Fourth
and Fifth pages – Power of Attorney and Certificate of Authority of Attorney(s)-In-Fact. This
document authorizes three individuals, including Anita Johnson, to bind Travelers in an amount
not to exceed $500,000.00 by the execution of various instruments, including bonds. This
document is signed under oath by George W. Thompson, Senior Vice President for Travelers,
and contains four corporate seals of the Travelers entities, along with the signature,
commission expiration date and seal of a notary public. This document was also certified as
remaining in full force and not revoked, as indicated by the signature of Kori M. Johnson,
Assistant Bond Secretary for Travelers, and again reflecting Travelers’s four corporate seals.
Johnson’s certificate is dated September 19, 2003.
27
¶38. With this documentation before her, Waters asserts that Gnemi failed to comply with
the cost bond requirements of the statute. Waters’s sole citation to authority on this issue is
a quote from Pearson that “[t]he statute is mandatory, using as emphatic language as could be
employed, under the circumstances.” 192 So. at 40. In Pearson, this Court affirmed the
special tribunal’s dismissal of the petition for judicial review due to the contestant’s failure
to strictly comply with the statutory requirement of obtaining certificates from two
disinterested attorneys. We agree with the assertion that Miss. Code Ann. § 23-15-927 is
mandatory and must be strictly construed; however, Pearson offers nothing by way of
discussion of the cost bond requirements of the statute, and thus does little to guide us in
considering the issue of whether Gnemi’s cost bond was somehow statutorily deficient. From
the record before us, we unhesitatingly find that Gnemi complied with the statutory
requirements concerning the cost bond.
¶39. As an aside, we also note from the record that the circuit clerk accepted and marked as
filed Gnemi’s petition for judicial review, with the attached fourteen exhibits, which included
the cost bond. The record is silent as to any attack of the cost bond by anyone at the trial court
level. We find nothing in the record which indicates that Judge Smith was ever called upon
to rule on the sufficiency of the cost bond. We have been consistent in holding that we need
not consider matters raised for the first time on the appeal, which practice would have the
practical effect of depriving the trial court of the opportunity to first rule on the issue, so that
we can then review such trial court ruling under the appropriate standard of review. See, e.g.,
Triplett v. Mayor & Aldermen of Vicksburg, 758 So. 2d 399, 401 (Miss. 2000) (citing Shaw
28
v. Shaw, 603 So. 2d 287, 292 (Miss. 1992)). If we were to adopt such a practice of
considering for the first time on appeal matters not raised before the trial court, such practice
would have the chilling effect of depriving the trial court of the opportunity to first rule on the
issue, which would then deprive this Court of the opportunity to perform our mandated
appellate review by utilizing the appropriate standard of review of the trial court’s ruling.
¶40. For all these reasons, we find this issue to be without merit.
E. Were Gnemi’s pleadings sufficient to maintain his action with the
special tribunal?
¶41. Waters also challenges the ruling of the special tribunal by asserting that Gnemi’s
petition for judicial review exceeded the scope of the matters alleged in his original petition
to the HCDEC. In Darnell, this Court recognized the scope of the issues authorized by statute
for a special judicial tribunal to review:
[T]he special judicial tribunal will have no authority to review or examine into
matters not presented by the original contest or protest before the executive
committee, save as to matters germane which happened during or since the
hearing before the executive committee, and save as to matters merely
explanatory or incidental as mentioned in Harris v. Stewart, 187 Miss. 489,
507, 193 So. 339. And we have consistently held that the protest before the
executive committee must show specifically, and not by generalities, what
wrong or wrongs or illegalities the contestant complains of, and that thereby a
wrong was done him in declaring his opponent the party nominee. See for
instance, Hickman v. Switzer, 186 Miss. 720, 191 So. 486.
202 Miss. at 773, 32 So. 2d at 685.
¶42. This Court has expressly defined the guidelines for a contestant when appealing an
executive committee determination to a special judicial tribunal and in Harris, we opined that
29
while a petition may not assign additional causes of action, it may be both amendatory, as to
the original causes of action and grounds for relief, and supplementary, as to all those material
facts which happened during and since the hearing before the executive committee. 193 So.
at 343. In Harris, we cited directly from precedent and stated that “[w]hen the main facts are
set out in the original pleading, and an amendment is made which merely elaborates upon those
facts and sets forth additional incidental facts not changing the original picture presented,
although those incidental facts may be necessary, in point of strict law, to the statement of a
good cause of action, the amendment introduces no new cause.” Id. at 344 (citing Illinois
Cent. R. Co. v. Wales, 177 Miss. 875, 889, 171 So. 536, 539 (1937)).
¶43. In this case, Gnemi originally alleged in his written petition to the HCDEC that there
were fundamental problems with the conduct of the primary election. Moreover, his original
petition of August 25 not only placed the issue of ballot box security in violation of Miss.
Code Ann. § 23-15-911(1) squarely before the HCDEC, it also contested the election
officials’ failure to count approximately five absentee ballots which Gnemi claimed were valid.
Furthermore, Gnemi complained of Roy Anderson’s third party candidacy in the Holmes
County, District 3 primary, asserting that he did not maintain residency there, and he likewise
alleged that the HCDEC’s cancellation of the second primary election, where Gnemi
apparently prevailed, was invalid.
¶44. Tracking these initial complaints, Gnemi’s circuit court petition for judicial review
asserts the same fundamental causes of action. Moreover, Gnemi includes claims for ballot
box irregularity, failure to count valid absentee ballots, improper cancellation of the second
30
primary election held on August 26, 2003, and Roy Anderson’s alleged non-residency in
District 3. The only additional claims arise out of the same fact issues asserted in his petition
to the HCDEC. 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.
¶45. The dispositive issue in this case concerning control of the ballot boxes and their
contents was asserted in both the HCDEC petition and the circuit court petition for judicial
review, and, as such, was well within the scope of Judge Smith’s review of the actions of the
HCDEC. This issue is thus without merit.
¶46. In sum, we find that Gnemi’s petition filed with the HCDEC did not have to be sworn
and was otherwise in proper form; that Gnemi’s petition for judicial review filed with the
circuit court was properly sworn; that there were attached to Gnemi’s petition for judicial
review the certificates of two disinterested attorneys, in proper form; that Gnemi’s petition
for judicial review was accompanied with a proper cost bond; and, that Gnemi’s pleadings via
the petition for judicial review were more than sufficient to maintain his action before the
special tribunal. Thus, for these reasons, we find that the special tribunal had jurisdiction to
consider Gnemi’s properly filed circuit court petition for judicial review; therefore, Issue I is
without merit.
II. WHETHER THE SPECIAL TRIBUNAL PROPERLY
DETERMINED THAT A SPECIAL PRIMARY ELECTION
SHOULD BE CONDUCTED.
31
¶47. Waters asserts that the special tribunal committed reversible error in finding that there
was such a radical departure from our election laws by the HCDEC so as to require a special
primary runoff election between Waters and Gnemi.
A. Whether there were violations of Mississippi Election Laws?
¶48. The crux of this case involves Gnemi’s allegations concerning the HCDEC’s method
of handling the District 3 precinct ballot boxes after the first primary election.
¶49. Gnemi testified at the special tribunal hearing that when he and Waters appeared at the
courthouse for the examination of the ballot boxes on August 22, 2003, 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, Hart informed him 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 to
be held on August 26, 2003. Evidently the election materials were at least identifiable by
precinct because Gnemi testified that during the course of the ballot box examination, as the
examination of the materials from each precinct was concluded, Hart placed these materials
in the appropriate metal precinct box and secured the box with double locks.
¶50. Wilbur Redmond, the District Three Election Commissioner for Holmes County,
testified that he assisted in the conduct of the August, 2003 primary elections. This fact
becomes significant since, absent an express agreement to the contrary, it is the county party
32
executive committee, not the county election commission, which is charged by law with the
responsibility of conducting the primary elections. On this point, Redmond testified:
Q. Tell us just a little bit about your duties briefly as an Election
Commissioner?
A. My duties are to get the boxes ready for and conduct election – general
election and special election. Pulling the voter rolls. Uh, that’s about it.
***************
Q. What department or organization runs primary elections? Who is
responsible for that?
A. The Holmes County Democratic Executive Committee.
Q. To your knowledge, does the Democratic Executive Committee have any
kind of written agreement with the Elections Commission regarding the ballot
boxes for the primary election?19
A. Not to my knowledge. I don’t know whether they have a written agreement
or anything. It’s just common knowledge that the Election Commissioners are
the ones in charge of the voting boxes.
¶51. Redmond testified that on August 17, 2003, he received a telephone call from fellow
Election Commissioner Chairman Sam Jesse Horton to come to the courthouse the next day
to prepare for the second primary elections. The next day Redmond and other election
commissioners indeed met at the courthouse to clean out the ballot boxes. The county
election commissioners brought the metal precinct ballot boxes from a storage room20 to
another room in the courthouse, at which time each election commissioner proceeded to clean
out the ballot boxes from his/her respective supervisor’s district. Thus, Redmond handled the
19
See Miss. Code Ann. § 23-15-266 (Rev. 2001).
20
The record reveals that at least several election commissioners had keys to this storage room.
33
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 HCDEC
were present during this process. Redmond explained what he did:
Q. All right. Tell me what you had to do to go about taking the ballots out of
their original boxes?
A. We have to break the seal on them and then open them and take out the
material that’s in them.
Q. And what kind of seal is this?
A. That’s a metal seal.
Q. What’s the purpose of that metal seal?
A. Well, to keep the boxes secure.
Q. What happened after you broke the seal on the boxes?
A. Well, I was taking the material out, the ballots that had been cast on August
the 5th, and other stuff that they need to conduct an election.
Q. What would some of that other stuff be?
A. Well, pencils, uh, tape, uh, election materials, poll books, and all of that.
***************
Q. What did you do after – where did you take that material – where did you put
it?
A. Well, I had picked up – since I knew we was going to been (sic) cleaning out
the boxes, I had picked up some cardboard boxes from over there at the farmer’s
market......
¶52. Redmond further testified that he cleaned out the metal precinct boxes and placed all
the election materials into the two cardboard boxes he had picked up at the farmer’s market.
At the special tribunal hearing, he identified these two cardboard boxes, but stated they had
34
more tape on them than what he had placed on them in order to “secure” the contents.
Redmond also testified that he secured the cardboard boxes by pulling the flaps down and
securing them with “one or two pieces” of gray masking tape across the top. Some of the
election commissioners then placed their signatures, as witnesses, on the cardboard boxes.
Redmond in fact signed written certificates, one for each cardboard box, confirming that the
cardboard boxes contained materials which he had removed from the precinct boxes in
preparation for the second primary elections. Each certificate was then placed on the
respective cardboard box, and Redmond then placed the cardboard boxes back in the storage
room at the courthouse. Redmond stated that this storage room remained locked “most of the
time.” Redmond confirmed that this method of cleaning out the metal boxes on August 18,
2003, was one which the election commissioners had utilized many times in preparation for
a second primary election. Redmond stated that upon returning to the courthouse on August
21, 2003, he learned that Gnemi had requested a “recount.” Redmond also testified as to what
he observed concerning the actions of the circuit clerk and some of the election
commissioners:
Q. Why were they putting additional tape on the boxes?
A. Because when they moved them out of the storage room, those boxes had to
be brought out here wherever they were going to have the recount. They had to
be turned back over to the Democratic Executive Committee.
Q. So what was –
A. Well, we had – we couldn’t turn them back to the Democratic Executive
Committee with the boxes – in the boxes that they had been put in at the
35
beginning. So, they – since they had been moved and put in another box, they
had to get them out and put them in this box and put more tape on them.
Q. Why did they have to put more tape on them? Is that because –
A. Well, my understanding, it was a hazard. It wasn’t secured enough in order
to be moved around. That’s my thoughts about it.
Redmond also stated that if the storage room they normally used got “filled up,” then a
basement storage room would be used to store election materials.
¶53. Of equally significant import is the testimony of Earline Wright-Hart, the Holmes
County Circuit Clerk. Hart testified that she learned the overvote and undervote had indeed
been factored into calculating the percentages in the District Three first primary election about
a week and a half before the second primary, when she received a call from the Secretary of
State’s office. A fax transmission later arrived at her office from the Secretary of State’s
office, addressed to Elma Maxine Smith, the HCDEC chair. This fax transmission contained
information as to how to correctly calculate the vote percentages, excluding the over and under
votes. Hart passed this information on to Smith who in turn convened a meeting of the
HCDEC, which certified Waters as the Democratic nominee for District Three Supervisor.
¶54. Hart testified that Gnemi then requested a box examination, and Hart told Gnemi she
would arrange for the box examination the next morning by contacting the election
commissioners; however, she also stated that “since I do not handle the boxes, I didn’t know
where the boxes were” because “[t]hat’s not in my post.” Hart stated that she did not keep the
boxes in the clerk’s office. In fact, in the late afternoon before the election, according to Hart,
36
the cardboard boxes were moved “by a trustee” from one room at the courthouse to another
room in anticipation of the box examination the next morning. Hart further testified:
Q. Because it’s not – the Circuit Clerk’s office does not run these primary
elections. The Democratic Executive Committee runs these elections, correct?
A. That’s correct.
Q. And you don’t have a written agreement with the Democratic Election – I
mean, Executive Committee to run these elections?
A. I’ve been here 20 years. I’ve never had to have a written agreement for an
election.
Q. But you don’t have a written agreement with the Democratic Executive
Committee to run the election – primary election?
A. No, there’s no – nothing in the law that says I have to have that.
Q. In fact, you mentioned the law, and that’s a good point. Regarding the law,
it is the Democratic Executive Committee’s job to run the primary election and
not yours?
A. That’s right.
¶55. Finally, Hart admitted that after the first primary election for District Three supervisor,
the HCDEC certified the results and declared a second primary between Waters and Gnemi.
Hart also admitted that notwithstanding this HCDEC certification, Waters was later declared
to be the Democratic nominee on August 21, just five days before the scheduled second
primary, without Waters ever requesting an examination of the ballot boxes and without her
ever filing an election contest. In essence, such action by the HCDEC was unilateral.
¶56. In fact, Waters candidly admitted that she called both the Mississippi Democratic Party
state office and the Secretary of State’s office. From these phone conversations, certain
37
information was eventually communicated to both Hart and Smith, the HCDEC chair. Waters
testified that there was never any reason for her to request an examination of the ballot boxes
or to file an election contest because she was declared to be the Democratic nominee after she
initiated the phone calls to the state Democratic Party headquarters and the Secretary of State’s
office.
¶57. There are several statutes which specifically address ballot box security. As such, each
statute is premised on eliminating fraudulent or corrupt practices and insuring a just and
trustworthy result. Ballot box security is essential to producing an election result in which
not only the voters, but the candidates themselves, can be confident. Miss. Code Ann. § 23-15-
591 governs the immediate post-election handling of ballot boxes by precinct poll managers.
Specifically, section 23-15-591 requires that,“[w]hen the count of the votes and the tally
thereof have been completed, the managers shall lock and seal the ballot box, having first
placed therein all ballots voted, all spoiled ballots and all unused ballots.” Miss. Code Ann. §
23-15-911(1) outlines the procedure for maintaining ballot box security both before and after
a candidate exercises the right to examine the ballot boxes. Section 23-15-911(1) specifically
provides:
When the returns for a box and the contents of the ballot box and the conduct of
the election thereat have been canvassed and reviewed by the county election
commission in the case of general elections or the county executive committee
in the case of primary elections, all the contents of the box required to be placed
and sealed in the ballot box by the managers shall be replaced therein by the
election commission or executive committee, as the case may be, and the box
shall be forthwith resealed and delivered to the circuit clerk, who shall safely
keep and secure the same against any tampering therewith. At any time within
twelve (12) days after the canvass and examination of the box and its contents
38
by the election commission or executive committee, as the case may be, any
candidate or his representative authorized in writing by him shall have the right
of full examination of said box and its contents upon three (3) days' notice of
his application therefor served upon the opposing candidate or candidates, or
upon any member of their family over the age of eighteen (18) years, which
examination shall be conducted in the presence of the circuit clerk or his deputy
who shall be charged with the duty to see that none of the contents of the box are
removed from the presence of the clerk or in any way tampered with. Upon the
completion of said examination the box shall be resealed with all its contents
as theretofore. And if any contest or complaint before the court shall arise over
said box, it shall be kept intact and sealed until the court hearing and another
ballot box, if necessary, shall be furnished for the precinct involved.
Quite often, an aggrieved candidate will demand a “recount.” Simply put, our election laws do
not provide for a candidate seeking a recount by a county party executive committee or a
county election commission, as the case may be. Instead section 23-15-911(1) is the
mechanism by which an aggrieved candidate may gain information to aid the candidate in
determining whether there might be sufficient evidence to file a contest, first with the party
executive committee or the election commission.
¶58. Finally, Miss. Code Ann. § 23-15-595 states in pertinent part:
[The circuit] clerk shall, in the presence of the manager making delivery of the
box, place upon the lock of such box a metal seal similar to the seal commonly
used in sealing the doors of railroad freight cars. Such seals shall be numbered
consecutively to the number of ballot boxes used in the election in the county,
and the clerk shall keep in a place separate from such boxes a record of the
number of the seal of each separate box in the county.
¶59. Although most ballots are now centrally counted at the courthouse via a scanning
machine at least similar to the OMR in today’s case, as opposed to counting by the poll
workers at the precincts with subsequent delivery of the ballot boxes and election materials
to the circuit clerk, our election statutes give clear guidance to our elections officials
39
regarding their respective duties. We can state with certainty that in the case sub judice,
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 on August 21, 2003. Ultimately,
the Holmes County Circuit Clerk verified her lack of participation in regards to ballot box
security and expressly stated that she lacked any personal knowledge of and was not a witness
to the removal of the contents from the six District Three precinct ballot boxes, or their
collective dumping into two taped cardboard boxes.
¶60. In accordance with section 23-15-911(1), the ballot boxes should have been pristinely
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. However, as
evidenced by the record, section 23-15-911(1) was unquestionably violated when, on August
18, 2003, Wilbur Redmond cleaned out the six District 3 ballot boxes and placed the contents
into two cardboard boxes sealing the two boxes with a single piece of tape.
¶61. Importantly, the cardboard boxes were never sealed. 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
40
unsealed and accessible, but their contents were commingled with the contents of the other
District 3 boxes. When the circuit clerk finally took possession of these cardboard boxes on
August 22, she proceeded to add additional tape to their exterior fearing that the security of
the ballots was unsatisfactory. Unfortunately, the taping did nothing to cure the inappropriate
handling of the ballot boxes prior to that time.
¶62. In his ruling, Judge Smith, found these actions to be a clear deviation from our election
laws, relying on Allen v. Funchess, 195 Miss. 486, 15 So. 2d 343 (1943). In Allen, the
contestant in an election contest challenged the integrity of the official vote count because two
ballot boxes remained unsealed after the executive committee made its initial box examination.
15 So. 2d at 344. The contestant maintained that after the county executive committee’s post-
primary examination of the ballot boxes, “the boxes and their contents thereupon had lost their
integrity in point of having any evidentiary value at the time the examination and recount was
made on August 31st.” Id. This Court further stated in Allen that “[h]ad these boxes been
sealed, as required by the statute, it is entirely probable that this unfortunate controversy would
never have proceeded to the course of an expensive litigation with its residue of doubts which
will inevitably linger and rankle.” Id.
¶63. Similarly, in the case at bar, the evidentiary value of the sealed ballot boxes was lost the
moment the seal was broken on the ballot boxes. Moreover, like Allen, the contents were
exposed and made available for fraudulent practices.
41
¶64. In sum, we are constrained as a matter of law, based on the record before us, to find that
there were numerous violations of our election laws. First of all, the Holmes County Election
Commission was in complete control of the ballot boxes in the August 5, 2003, Democratic
primary election, even though our law requires such ballot box control to be maintained by the
county executive committee in the case of primary elections. See Miss. Code Ann. § 23-15-
911. Such relinquishment of statutory responsibility by the Holmes County Democratic
Executive Committee could have only been legally accomplished via a written agreement with
the Holmes County Election Commission. Miss. Code Ann. § 23-15-266 (Rev. 2001) states:
A county or municipal executive committee shall be eligible to enter into
written agreements with a circuit or municipal clerk or a county or municipal
election commission as provided for in Sections 23-15-239(2), 23-15-265(2),
23-15-267(4), 23-15-333(4), 23-15-335(2) or 23-15-597(2), only if the
political party with which such county or municipal executive committee is
affiliated:
(a) Has cast for its candidate for Governor in the last two (2)
gubernatorial elections ten percent (10%) of the total vote cast
for governor; or
(b) Has cast for its candidate for Governor in three (3) of the last
five (5) gubernatorial elections twenty-five percent (25%) of the
total vote cast for Governor.
The record is devoid of any evidence of a written agreement between the HCDEC and the
election commission wherein the HCDEC has divested itself of its statutory duties in the
conduct of Democratic primary elections. In fact, both District Three Election Commissioner
Wilbur Redmond and Circuit Clerk Earline Wright-Hart admitted the non-existence of a
written agreement. Thus, pursuant to Miss. Code Ann. § 23-15-267(3), the HCDEC, not the
county election commission, should have taken control of the ballot boxes and delivered them
42
to the circuit clerk. Because of this active involvement by the Holmes County Election
Commissioners in the August 5, 2003, first Democratic primary, Judge Smith was unable to
convene the special tribunal as required under the provisions of Miss. Code Ann. § 23-15-931.
Pursuant to this statute, upon appointment of a chancellor or circuit judge by the Chief Justice
pursuant to Miss. Code Ann. § 23-15-929, the specially appointed judge or chancellor is to
convene the special tribunal consisting of the judge and the five county election
commissioners, who presumably are unbiased and disinterested persons, having no involvement
in the conduct of the primary election being contested. Pursuant to section 23-15-931, the
county election commissioners sit with the judge or chancellor “as advisors or assistants in
the trial and determination of the facts.” Further, Miss. Code Ann. § 23-15-933 provides, inter
alia, that if as many as three of the five county election commissioners are in attendance at the
hearing before the special tribunal, and if the findings of fact by the special tribunal are
concurred in by all the county election commissioners in attendance, such findings of fact are
not subject to appellate review. However, inasmuch as the actions of the county election
commissioners are at the crux of today’s election contest, Judge Smith was unable to utilize
their services as members of the special tribunal. However, we have held that the absence of
the election commissioners at a primary election contest before the specially appointed judge
is not error under certain circumstances. See Hatcher v. Fleeman, 617 So. 2d 634, 638 (Miss.
1993). In fact, Miss. Code Ann. § 23-15-935 (Rev. 2001) gives the duly appointed judge or
chancellor the express authority to proceed to a hearing without the county election
commissioners, under certain circumstances. However, what was lost, inter alia, because of
43
the inability of the election commissioners to serve as members of the special tribunal in
today’s case, was expedited review by this Court without a record if all the election
commissioners had agreed with the special tribunal’s findings of fact.
¶65. Another critical violation is the circuit clerk’s relinquishing her statutorily mandated
duties to take charge of the ballot boxes after the completion of the OMR counting process
which was completed in the early morning hours of August 6, 2003. See Miss. Code Ann.
§§ 23-15-267(3), -911(1). Instead the ballot boxes were kept in various storage rooms at the
courthouse, and after the county election commissioners improperly dumped the contents of
the six precinct ballot boxes from District Three into two non-secured cardboard boxes from
the farmer’s market, a “trustee” (which we presume to be a jail trusty), among other persons,
moved these cardboxes around from one room to another at the courthouse.
¶66. Likewise, of significant import in today’s case is that, notwithstanding the fact that the
provisions of Miss. Code Ann. § 23-15-911(1) allow an aggrieved candidate to examine the
ballot boxes within twelve (12) 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 HCDEC 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 August 5th primary, to
exercise his or her statutory right to examine the ballot boxes pursuant to Miss. Code Ann.
§ 23-15-911(1). As so noted by Judge Smith in his bench opinion and his written order,
44
because of these blatant violations of various statutes, the integrity of any ballot box
examination was compromised because of the manner in which these six precinct ballot boxes
were handled from the time of the first primary election until Gnemi attempted an
examination.
¶67. Waters understandably cites Riley v. Clayton, 441 So. 2d 1322 (Miss. 1983), in an
effort to convince us that the use of cardboard boxes to store ballots was sufficient to save
today’s case. However, Riley is unequivocally factually dissimilar to the case sub judice. In
Riley, a primary election contest in the chancery clerk’s race, the Lee County circuit clerk had
for some time followed the practice of storing absentee ballots in large brown precinct
envelopes.21 However, unlike today’s case, in Riley, the ballots which were placed in the
envelopes were kept at all times in a secured location in the circuit clerk’s office, which was
locked overnight.
¶68. Thus, for these reasons, we find that the Holmes County election officials committed
numerous violations of the election laws.
B. Whether the special tribunal’s ordering a special primary run-off
was the proper remedy?
¶69. In his written order, Judge Smith held in relevant part “that the violation of Miss. Code
Ann. § 23-15-911 is a total departure from the mandatory provisions of the statute.” This
finding was likewise consistent with his bench opinion. Judge Smith determined that the only
21
Lee County utilized voting machines on election day, thus absentee ballots and affidavit ballots were
the only paper ballots used in Lee County elections.
45
appropriate remedy was to order a special primary run-off election be to held between Gnemi
and Waters on December 16, 2003, in order to determine the Democratic primary nominee.
Judge Smith also ordered a special general election to be held on January 6, 2004, between the
Democratic nominee emerging from the special primary run-off and the Independent
candidates.
¶70. In Riley, we stated:
The key in deciding whether an act not in strict compliance with the statutory
election procedures renders that election void is whether the act is such a total
departure from the fundamental provisions of the statute as to destroy the
integrity of the election and make the will of the qualified electors impossible
to ascertain. Ulmer v. Currie, 245 Miss. 285, 147 So. 2d 286 (1962); Sinclair
v. Fortenberry, 213 Miss. 219, 56 So. 2d 697 (1952); Gregory v. Sanders, 195
Miss. 508, 15 So. 2d 432 (1943).
441 So. 2d at 1328.
¶71. Ordering a special election is indeed an extraordinary remedy and requires a careful
balancing of many competing factors. In Noxubee County Democratic Executive Committee
v. Russell, 443 So. 2d 1191 (Miss. 1983), we addressed this issue, and set forth a two-pronged
test:
When an election has been successfully contested, this Court has employed
different tests over the years to aid its determination of what form of relief is
in order.[] By various routes, we have attempted to discern whether the entire
election should be thrown out or only the tainted votes. We have employed a two
pronged test which though it has been stated in different ways, essentially
provides that special elections will be required only when (1) enough illegal
votes were cast for the contestee to change the result of the election, or (2) so
many votes are disqualified that the will of the voters is impossible to discern.[]
46
Russell, 443 So. 2d at 1197 (citing Walker v. Smith, 213 Miss. 255, 56 So. 2d 84, suggestion
of error, 215 Miss. 263, 264, 57 So. 2d 166, 167 (1952); Pyron v. Joiner, 381 So. 2d 627
(1980)). See also, footnotes 1 and 2, 443 So. 2d at 1197-98. Stated differently, this Court has
determined that in an election contest, when a significant number of legal votes have been
rejected, or illegal votes received, an inquiry should be made as to whether the election truly
reflected the voters’ will with the Russell test as the guide. If not, then a special election must
be held.22
¶72. Since disqualification of illegal votes is not the dispositive issue in this appeal, we turn
our focus squarely on whether the irregularities were substantial enough to warrant a special
election. Russell, 443 So. 2d at 1198. In Walker, we held that this determination “depends
upon the facts and circumstances in each particular case, including the nature of the procedural
requirements violated, the scope of the violations and the ratio of illegal votes to the total
votes cast.” 213 Miss. at 264, 57 So. 2d at 167. Accordingly, if the irregularities are due to
fraud or willful violations of the election procedure, this Court will not hesitate to order a new
election, even though the percentage of illegal votes is small. Harris,193 So. at 346.
¶73. In Clark v. Rankin County Democratic Executive Committee, 322 So. 2d 753 (Miss.
1975), we dealt with error wherein election officials substantially deviated from mandatory
election day procedure by opening ballot boxes while the election was still in progress. 322
So. 2d at 756. In violating section 23-3-13 of the then-applicable Corrupt Practices Law,
22
Jackson & Miller, Encyclopedia of Mississippi Law, Election Law, § 51, at p.111.
47
which was passed specifically to insure the secrecy of a voter’s ballot and to guard against the
opportunity for fraud in the counting of the ballots, officials totally departed from mandatory
procedure. Id. In Clark we stated:
When, as in this case, there has been a total departure from the mandatory
provisions of the Corrupt Practices Law with respect to time, manner and
conditions under which the ballots were counted, the contestee cannot
successfully claim that the contestant has failed to show the will of the electors
could not be ascertained or has not shown the existence of fraud in connection
with such counting. The departure complained of deprives him of the very
means by which the fraud could be detected if any exists.
Id. at 757 (citing Briggs v. Gautier, 195 Miss. 472, 15 So. 2d 209 (1943)). We likewise
stated in Clark:
We have held in a number of cases that where there has been a radical departure
from the mandatory provisions of the Corrupt Practices Law the result of the
particular precinct or precincts in question is void. Wallace v. Leggett, 248
Miss. 121, 158 So. 2d 746 (1963); Ulmer v. Currie, 245 Miss. 285, 147 So. 2d
286 (1962); May v. Layton, 213 Miss. 129, 56 So. 2d 89 (1962); Briggs v.
Gautier, supra; Harris v. Stewart, 187 Miss. 489, 193 So. 339 (1940); Hayes
v. Abney, 186 Miss. 208, 188 So. 533 (1939).
Id.
¶74. In this case, the special remedy of a new election ordered by Judge Smith was not only
an appropriate remedy, it was the only remedy. The gross deviation and total departure from
mandatory election procedure by the HCDEC (via the county election commission) caused the
result of the August 5, 2003, election for District Three supervisor to be completely
undermined as all indicia of reliability were compromised. Similar to the gross error in Clark,
a radical departure from statutory mandate occurred when the seals of all six election day
48
boxes for District Three were broken and the contents therein were left exposed. Likewise,
the circuit clerk did not take charge of the ballot boxes on election night as required by statute.
Accordingly, the evidentiary value of the boxes’ contents was completely lost and the ability
of the county executive committee, the candidates, and the voting public to detect the
existence of voter fraud and/or any other type of impropriety or miscalculations was lost.
¶75. We readily acknowledge that there have been no allegations or proof of fraud by Gnemi
against the voters or election officials. While Waters thus 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. Like secret vote counting, removal of the
ballot boxes and their contents from the secure and prescribed custody of the circuit clerk for
sixteen days, during which time the contents were removed, commingled and placed in insecure
cardboard boxes, not only prevented Gnemi and objective reviewing bodies from properly
ascertaining the accuracy and substance of the result posted on election day, but also prevented
any discovery of ballot irregularities or outright fraud in the election. Moreover, Gnemi, in
a tightly contested race, has been unable to compare the total number of voted, unvoted and
spoiled ballots in each separate precinct or even be certain that they equal the total number of
ballots the receiving election manager in a particular precinct swore he received and took to
the precinct at the time the polls opened on election day, such being a fundamental check for
fraud readily exercised by a candidate in a post-election examination of sealed ballot boxes.
Miss. Code Ann. § 23-15-591.
49
¶76. In discussing the importance of a box examination, we stated in Lopez v. Holleman, 219
Miss. 822, 69 So. 2d 903 (1954), that the right is one “‘by which in its main objective the
candidate is made a mere instrumentality in the better assurance of an honest, impartial and
lawful election.’” 219 Miss. at 836, 69 So.2d at 907 (citing and quoting from Sartin v. Barlow,
196 Miss. 159, 16 So. 2d 372, 375 (1943)). In the case sub judice, Gnemi was wholly deprived
of his opportunity to utilize fundamental safeguards installed in the mechanism created by the
election code. Accordingly, Judge Smith quite appropriately found that the denial of Gnemi’s
right to an accurate examination of the ballot boxes mandated a special election.
¶77. Having found, for the reasons stated, that there were numerous violations of our
election laws, we find that the special tribunal properly determined that a special primary
election should be conducted; therefore, Issue II, concerning Waters’s assertion that the
special tribunal committed reversible error in finding such as radical departure from our
election laws so as to require a special primary run-off, is without merit.
CONCLUSION
¶78. We wish to make abundantly clear that our decision today should in no way be perceived
as even inferring intended wrongdoing by the Holmes County election officials. There is
nothing in the record to even suggest that one or more Holmes County election officials acted,
or failed to act, with sinister motives or with the intent to hurt or help any particular candidate.
The circuit clerk and at least one election commissioner explained there actions or inactions
by stating in essence “that was simply the way it had always been done in Holmes County.” We
understand this mind-set. It is quite common that when newly elected officials take office,
50
they rely on the advice of their predecessors and other informed officials in learning how to
perform their respective duties. If a newly elected official is told that “this is the way we have
always done it”, and “it” seems to be a fair way which has been successful in the past, why rock
the boat? While we rely on our elected officials to educate themselves on the appropriate laws
governing their duties and responsibilities, we acknowledge the fact that our elected officials
quite appropriately rely on information gained at seminars, conferences, and from state
officials who are charged by law with advising our local elected officials as to how to better
perform their duties.
¶79. However, at the end of the day, in the conduct of local, district and state-wide elections,
all Mississippi voters have to rely on the experience, expertise and integrity of our election
officials to diligently perform their statutorily mandated duties to assure that our elections are
fairly and properly conducted. Perhaps, all of this can best be summed up by our admonition
in Riley:
Although there is a strong public policy in attempting to preserve the will of the
electorate as reflected by the tabulation of all of the votes, we take this
opportunity to remind registrars throughout the state that they invite election
contests, uncertainty and the opportunity for fraud by failing to pay close heed
to the election statutes whether they be mandatory or directive. Any expense or
burden such compliance creates is trivial when compared to the value of the goal
of maintaining our Republic. Integrity of our government can be no greater than
the integrity of elections which put our government officials in office. It is
therefore the duty of every registrar to endeavor to comply with the election
statutes regardless of the personal inconvenience it may create.
441 So. 2d at 1328. We know of nothing else which could be added to our directive in Riley.
51
¶80. For the reasons herein stated, the decision of the Special Tribunal, Circuit Judge Albert
B. Smith, III, presiding, is affirmed.
¶81. AFFIRMED.
SMITH, C.J., WALLER AND COBB, P.JJ., EASLEY, GRAVES, DICKINSON AND
RANDOLPH, JJ., CONCUR. DIAZ, J., NOT PARTICIPATING.
52