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NOVEMBER 23, 1983




On August 23, 1983, the second democratic election for the office of Chancery Clerk of Lee County, Mississippi was held. The parties to this suit were the candidates in that election. After tabulation of the votes, it was determined that Mr. Clayton was the winner. On September 26, 1983, after losing an appeal to the Lee County Democratic Executive Committee, Mr. Riley filed a petition for judicial review. A special tribunal consisting of Circuit Judge Carlson, and five election commissioners of Lee County denied Riley's appeal. Riley then brought this appeal and alleges that certain absentee ballots cast in the election must be invalidated for two reasons: (1) the failure to follow certain statutory absentee balloting procedures, and (2) failure to secure the ballots in locked metal ballot boxes.

Riley also filed a petition for a writ of certiorari requesting this Court to command the official court reporter for the special tribunal to transcribe her notes and file the same with the Court. Riley alleges that Section 23-3-51

 Mississippi Code Annotated (1972) unconstitutionally restricts this Court's review of the facts as found by the special tribunal.

 The special tribunal made a unanimous finding of fact which was concurred in by Judge Carlson who placed it into the record. Prior to that finding the parties had entered into stipulations concerning the number of votes involved in the contest. It was stipulated that there were 486 absentee votes, of which 306 were marked for Clayton and 180 for Riley. There were also 8,374 machine votes for Clayton and 8,419 for Riley. That made a total of 8,680 for Clayton and 8,599 for Riley. It was further stipulated that of the 274 absentee votes challenged in this suit, 256 are involved in the outcome of this election.

 The findings of fact made by the Lee County Commissioners and Judge Carlson are that Mrs. Fay H. Estes had been Circuit Clerk and Registrar of Lee County for 18 years and had followed the same absentee voting procedure for approximately the last 10 of those years. When someone came into the office and wanted to vote an absentee ballot, the regular procedure was to check their eligibility as an elector and then provide them with a ballot, which would be marked outside of the clerk's or deputy's presence but within their sight. The clerk would then sign the attestation form as a witness and place the ballot in a small sealed envelope which was then placed in a large brown envelope. The large brown envelope was clamped but left unsealed. The large brown envelopes were kept behind the counter in the clerk's office. Sometimes, they were locked up in a drawer at night, but that was not always the case. Regardless, the clerk's office was locked at the end of each work day. As a general rule, no metal ballot boxes were used in Lee County.

 In the case of a physically incapacitated voter, the request for an absentee ballot often was made over the phone. These requests came from either the absent voters themselves or from relatives, friends, and even candidates for various offices. After receiving such a telephone request for an absentee ballot for a physically incapacitated voter, the clerk verified that the voter was eligible to vote and either mailed an absentee ballot or personally delivered it to the elector. If the ballot was mailed, the registrar or her deputy enclosed the required instructions, application and envelope. When the mailed ballot was returned, the registrar followed the same procedure as when the absentee voter came to her office. In other words, she placed the sealed envelope with the ballot in it in a large brown precinct envelope. If the request was made by the absentee voter that the ballot

 be personally delivered, the registrar or her deputy made some notation of that fact and would at some point go to the house, hospital or nursing home where the absent voter was located and personally deliver the ballot. Once the ballot was delivered, essentially the same procedure would follow as when absentee voters voted in the clerk's office. If the ballot was taken to the physically incapacitated voter during regular office hours, the registrar or her deputy would return to the office the same day and follow the same procedure by placing the sealed envelope with its contents in the designated large brown precinct envelope. If the ballot was taken to the physically incapacitated absent voter after regular office hours, the registrar or her deputy would take the sealed envelope home and return it to the registrar's office the next working day. Whenever ballots were personally taken to the physically incapacitated absent voters, no written instructions were taken but the registrar or her deputy would verbally instruct the absentee voter as to the proper procedure in casting their ballot.

 The special tribunal also found that in performing the function of voting absentee voters outside of the office by personally delivering their ballots, the registrar and her deputies felt they were rendering a necessary and vital service to the physically incapacitated citizens of the county. The tribunal specifically found that there were no allegations nor any proof that the registrar or her deputies exercised or attempted to exercise any influence upon absentee voters, nor were there any allegations or proof that any fraud or intentional wrongdoing was committed by the registrar or her deputies in following the above outlined procedure. This above described procedure was followed in all forty precincts and not limited to any particular area of the county.

 We will first address Riley's petition for writ of certiorari. In his petition, Riley alleges that the special tribunal excluded material facts in its finding of fact.

 Section 23-3-51 Mississippi Code Annotated (1972) reads as follows:

 Within three days after judgment rendered, unless a longer time not exceeding four additional days be granted by the trial judge, the contestant or contestee, or both, may file an appeal in the supreme court upon giving a cost bond in the sum of three hundred dollars, together with a bill of exceptions which shall state with appropriate fullness the point or points

 of law at issue with a sufficient synopsis of the facts to fully disclose the bearing and relevancy of the said points of law, the said bill of exceptions to be signed by the trial judge, or in case of his absence or refusal, or disability, by two disinterested attorneys, as is provided by law in other cases of bills of exception. If the findings of fact have been concurred in by all the commissioners in attendance, provided as many as three of the commissioners are and have been in attendance, the facts shall not be subject to review on appeal, and the bill of exceptions shall not set up the evidence upon which the facts have been determined. But if not so many as three of the commissioners are and have been in attendance or if one or more of the commissioners dissent, a transcript of the testimony may be filed with the bill of exceptions, or within such short time thereafter as the supreme court may allow, and the supreme court, upon a review thereof, may make such finding upon the facts as the evidence requires, giving only such consideration as the court may think warranted to the presumption of correctness of the conclusions of the trial judge. The appeal shall be immediately docketed in the supreme court and referred to the court en banc upon briefs without oral argument, unless the court shall call for oral argument, and shall be decided at the earliest possible date, as a preference case over all others, and such judgment shall be entered and certified as the trial tribunal shall have entered and certified, with the same effect as had such judgment been entered by the trial tribunal and no appeal had been taken therefrom.

 Mr. Riley argues that this statute unconstitutionally limits this Court's power of review. This Court has stated on numerous occasions that the right to appeal is a statutory privilege granted and defined by the legislature. Miller Transporters, ___ Ltd. v. Johnson, 252 Miss. 244, 172 So. 2d 542 (1965); State ex rel Patterson v. Autry, et al, 236 Miss. 316, 110 So. 2d 377 (1959); McMahon v. Milam Mfg. Co., 237 Miss. 676, 115 So. 2d 328 (1959); Jackson v. Gordon, 194 Miss. 268, 11 So. 2d 901 (1943). We have also specifically addressed this Court's appellate review in election contests. In Berryhill v. Smith, 380 So. 2d 1278 (Miss. 1980), this Court held that it

 would not review the facts as found by a special tribunal where three of the commissioners concurred in the presiding judge's findings and one member was ...

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