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NOXUBEE COUNTY DEMOCRATIC EXECUTIVE COMMITTEE AND ALBERT WALKER v. CECIL RUSSELL

DECEMBER 14, 1983

NOXUBEE COUNTY DEMOCRATIC EXECUTIVE COMMITTEE AND ALBERT WALKER
v.
CECIL RUSSELL



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This is an election contest. Cecil Russell and Albert Walker are contestants for the Democratic nomination for Sheriff of Noxubee County. The Noxubee County Democratic Executive Committee certified Walker as the party's nominee.

 Russell sought judicial review. A special tribunal presided over by Chancellor George D. Warner, Jr., upheld Russell's appeal and declared him the party's nominee. Walker appeals from that decision. We affirm.

 II.

 On August 23, 1983, the Noxubee County Democratic Party held a second primary election to determine the party nominee for the office of Sheriff. The two contestants, Albert Walker and Cecil Russell, ran a close race. An initial count of the ballots showed that out of 5,629 votes cast, Russell won by a margin of 54 votes. A recount gave Russell 2,845 votes to Walker's 2,784, increasing Russell's winning margin to 61 votes. However, the Noxubee County Democratic Party Executive Committee refused to certify the returns and began investigating the ballots.

 On August 31, 1983, Russell filed a request with Wallace Gray, Circuit Clerk of Noxubee County and custodian of the ballots, asking to examine the ballots. This request was denied because the Executive Committee was still conducting its own examination.

 No official action was taken by the Committee until September 9, 1983. On that date, the Committee voted to throw out three ballot boxes because the receiving manager and the initialing manager were one and the same person for each box. The disqualified boxes and their count are as follows:

 CENTER POINT BOX

 Russell - 71 votes, 7 absentee

 Walker - 32 votes, 2 absentee

 Total - 103

 SHUQUALAK BOX NO. 3

 Russell - 133 votes, 7 absentee

 Walker - 108 votes, 9 absentee

 Total - 241

 SUMMERVILLE BOX

 Russell - 40 votes

 Walker - 13 votes

 Total - 53 (no absentees)

 The absentee ballots were not disqualified.

 Once these boxes had been thrown out, Walker appeared to be the winner. A motion was made that the Executive Committee examine the rest of the boxes to see if others suffered from the same defect. The motion was defeated by a 12 to 11 vote. On September 9, 1983, the returns from the Sheriff's election were finally certified and Walker was declared the Democratic nominee.

 On September 12, 1983, Russell filed a petition to contest the certification action of the Executive Committee. On the same day Russell filed a second request with Gray, the Circuit Clerk, asking that he be allowed to examine the ballots on September 19. This time his request was granted. Russell's examination revealed that yet another box, Prairie Point No. 2, suffered from the same defect that had disqualified the first three boxes.

 On September 20, 1983, after he had examined the ballots, Russell filed an amended petition to contest the election, alleging that the Prairie Point No. 2 box suffered from the same defect as had the other boxes. The Noxubee County Executive Committee, however, refused to alter its certification of Walker as the party's nominee for the office of Sheriff.

 On October 7, 1983, Russell filed a Petition for judicial review of the Committee's action in the Circuit Court of Noxubee County. After this petition had been filed, Chief Justice Patterson, acting pursuant to Miss. Code Ann. 23-3-47 (1972), designated Chancellor George D. Warner, Jr., of the Twelfth Chancery District to hear this cause. Chancellor Warner immediately had notices of the contest sent to all of the parties. Summons and subpoenas were also issued.

 The contest was heard on October 19, 1983, before a special tribunal composed of Chancellor Warner and three elections commissioners of Noxubee County. Before trial, the attorneys stipulated as to several matters, including the original number of votes received by each candidate. They also stipulated that the three boxes that had been thrown out initially were illegal and that the votes cast in those boxes ought not be counted. Both Walker and Russell agreed that those boxes should be thrown out.

 The trial centered on Prairie Point No. 2 Box. The evidence established that Walker received 148 votes in that box, five of which were absentee votes while Russell received 52 votes in that box, two of which were absentee votes. The total count from that box was 200. Virgie J. Stewart testified that she was the receiving manager for that box; she picked up the box and the blank ballots from the circuit clerk's office and she returned it signing her name each time to the list as receiving managers. She also testified that she initialed all but one of the ballots on the back.

 At the close of the trial, the chancellor disqualified the box and declared Russell the winner. He (and the complaint tribunal) based their decision on the case of Prescott v. Ellis, 269 So.2d 635 (Miss. 1972), which holds that the receiving manager and the initialing manager cannot be one and the same person. The chancellor made it clear that the reason he chose to throw the box out, as opposed to ordering a new election, was because the will of the voters would not be changed by so doing. One member of the complaint tribunal entered a partial dissent, feeling that a special election at the four boxes in question should be held.

 III.

 Of the issues presented for our review, only three require our consideration:

 (1) Whether the court erred in failing to dismiss this contest because the supporting affidavits failed to state that the attorneys had made "independent" investigations of the allegations set forth in the plaintiff's complaint;

 (2) Whether the court erred in failing to dismiss the case because the plaintiff failed to discover the irregularities within 12 days of the Committee's canvass and investigation of the ballots, even though the ...


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