Final documents submitted for Mayoral Election contest

Mayor Lynn Spruill (left) and Johnny Moore
By: 
LOGAN KIRKLAND
Staff Writer

Nearly a month after the mayoral election contest recessed from Oktibbeha County Circuit Court, both legal teams have submitted their final court documents.

On Monday, both Mayor Lynn Spruill and Democratic candidate Johnny Moore filed their findings of fact and conclusions of law in Oktibbeha County Circuit Court.

In April, Special Judge Barry Ford allowed the legal teams 21 days to file the final documents once they received a transcript of the court proceedings.

Ford said he would then review the documents submitted by both teams and call on the election commissioners who were present during the trial, to ask for their expert opinions upon review.

BALLOTS AND VOTE COUNT

According to court documents, Moore's team claims an error in the certified count of the ballots, which were previously counted in the election.

Moore claims the actual ballot count should be 1,866 votes for Moore and 1,871 votes for Spruill, which changes the vote margin to five, rather than a six vote margin.

In a section of the document labeled "vote count issue" it states in Ward 1, there was a ballot in the "accepted ballots" envelope cast for none of the above. Two tally sheets were submitted from

Ward 1, which reflect the total count of regular election day ballots for Spruill as 204 and Moore 170.

It states both tally sheets from Ward 1 have a correction from 203 votes to 204 votes for Spruill. A poll worker from Ward 1, Carla Jones, testified there was a mark on the black line underneath the line where Spruill votes were being tallied, which was marked out.

Jones also testified that she agreed it appeared that the three in 203 was marked out and replaced with a four, making the count for Spruill 204.

In Ward 3, after their expert witness Pete Perry scanned the documents, he testified the Ward 3 count should have been 524 for Moore and 351 for Spruill.

In the court documents, Moore's team states in Ward 6, there are 209 votes cast for Moore and 273 votes for Spruill. When the initial count was 208 votes for Moore and 274 for Spruill.

Moore is questioning eight ballots, that he and his legal team feel should be counted. The first ballot comes from Carolyn Batchelder, who submitted an absentee ballot, but was marked rejected.

A poll worker later identified the ballot and testified it was marked as rejected, but appeared to meet all requirements under the checklist.

David Moore, who the Court has previously ruled on the validity of the affidavit ballot, was initially rejected due to his address being in the county, but was within the city limits.

An affidavit ballot cast by Jennifer Watts, was registered to vote, but when arriving at the polls, she was not in the poll books. She then cast an affidavit ballot, but was marked as rejected without reason other than a handwritten note that stated "no apt. # - could have been ret."

Watts was listed as inactive due to a returned voter registration card, which was addressed to the incorrect address. Deborah Vemer had her affidavit ballot rejected and the notation on the back side of the envelope was that she was inactive. A post-it note stated "voter card mailed Feb.

2017 and returned as undeliverable" and "inactive in computer." A Commissioner said they did not know why the ballot would be rejected.

James Schilling, who moved several times within the city limits, had his affidavit ballot rejected after members of the commission performed an internet search for Schilling's office, which was listed in close proximity of the dwelling listed.

William Ferguson's affidavit ballot was rejected by the commissioners but no reason was listed, but it was determined that the Statewide

Election Management System incorrectly reported Ferguson's old address as being in the county, rather than being in the city.

Ferguson's previous address and original registration address was in the city limits and has tax records for the property.

William Joseph Parker's affidavit ballot was rejected due to being "registered too late." He was registered on May 31, 2013, and his file was found at Oktibbeha County Circuit Court, where he was given a voter registration card.

Annie Covington's affidavit ballot was rejected for "registered too late," but Covington was registered on April 10, 2017, more than 30 days prior to the election held on May 16, 2017.

Alan Tucker West's affidavit ballot was rejected due to “front not complete.” He filled out necessary information, but did not mark a reason listed as to why he was voting an affidavit ballot.

In court documents filed by Spruill's legal team, in the section labeled "ballot recount" says the concept of a recount of ballots is foreign to Mississippi law. It says there is no legal authorization for recounts, and are not recognized by the courts.

In the section labeled "new or special election" Spruill's team recognizes the court may order a new election. It states it is limited by the election contestant's ability to prove that the illegal votes would be enough to change the election results.

The documents say an election may also be invalidated when there has been a "substantial failure" to comply materially with the applicable statutes and the intent of the voters is impossible to ascertain; in the event of such validation, a special election would be required.

Spruill's team says there was not substantial failure found by the court, and the procedural irregularities were cause by human innocent error, resulting in not ordering a special election.

As for affidavit ballots, Spruill's team argues by statute, the person should fill out the ballot completely to be considered. Her team argues eight of the affidavit ballots are not filled out completely and accurately.

During the trial, Perry identified 52 absentee ballots, which were accepted by poll workers, but should not have been due to one or more "fatal" statutory deficiencies with each ballot.

Both parties agreed the ballots should be rejected. Both parties also agree that two absentee ballots identified as rejected should have been accepted.

According to court documents, Spruill's team says the impact of the 52 absentee ballots that should not have been counted raises a complicated question. It says votes that should not have been counted, like the 52 absentee ballots identified by Perry, are approximately one-fifth of the total absentee ballots cast in this election.

The parties agree, and the record reflects, that there were 269 absentee ballots cast in this election that were counted, 18 affidavit ballots cast in this election that were counted, and 3,451 regular ballots cast in the election that were counted.

Spruill's team says Mississippi law is clear that once an absentee ballot is separated from the application, there is no way to track the ballot and therefore no way to recover which of the erroneously counted ballots can be retrieved.

This means, in the mix of 269 absentee ballots, there are approximately 20 percent of ballots that should not have been counted toward either candidate, but were. The remedy for removing the invalid votes from the mix of absentee ballots requires all 269 absentee ballots to be voided.

The argument presented by Spruill's team asks if seven percent of the votes is a substantial enough number to make it impossible to discern the will of the voters. The document says if the number is substantial, a special election is in order.

The ruling of the trial will be submitted by Ford in writing.

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