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Campbell v. Whittington

March 11, 1999

VIRDO CAMPBELL
v.
JACKIE WHITTINGTON



The opinion of the court was delivered by: Pittman, Presiding Justice

DATE OF JUDGMENT: 12/12/95

TRIAL JUDGE: HON. DENISE OWENS

COURT FROM WHICH APPEALED: AMITE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - ELECTION CONTEST

DISPOSITION: AFFIRMED - 3/11/99

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

¶1. Virdo Campbell appeals a decision by a special tribunal declaring Jackie Whittington the winner in the race for District 3 Supervisor of Amite County, after Campbell had previously been declared the winner by the Amite County Democratic Party Executive Committee. We affirm the tribunal's determination as to the 20 rejected absentee ballots, concluding that the irregularities cited by the tribunal impugn the integrity of the ballots.

I.

¶2. On August 29, 1995, in Amite County, Mississippi, Virdo Campbell (Campbell) and Jackie Whittington (Whittington) competed for the seat of District 3 Supervisor in a Democratic Party second primary election. At the Conclusion of the election, Whittington personally challenged 21 absentee ballots and six affidavit ballots, all of which were cast at the Gloster poll. In particular, Whittington challenged all absentee ballots that were witnessed by Davis Anderson. He challenged the affidavit ballots because the voters listed post office boxes as their addresses. Pursuant to statute, the voting poll station manager set the challenged ballots aside to be dealt with by the Amite County Democratic Executive Committee (the Committee).

¶3. At the hearing regarding the challenged ballots, there was testimony that the Committee decided to count the 21 absentee ballots and that the Committee intended to certify Campbell the winner. However, the next morning, the papers declared Whittington the winner. One of the exhibits at the trial, a tally sheet, showed the totals to be 625 votes for Campbell and 649 votes for Whittington. These figures appear next to crossed-out totals that appear to have been 646 votes for Campbell and 649 for Whittington. However, Campbell claims the crossed- out figures truly read 652 votes for him and 649 votes for Whittington.

¶4. One member of the Committee testified that the Committee met on August 30 and 31, examined the challenged ballots, and decided to count them. This member claimed that they then sent a certification to the Circuit Clerk's office indicating that Campbell had won with 652 votes as compared to Whittington's 649 votes. However this claim contradicts the testimony of another Committee member who stated that Whittington was certified the winner, a claim that is corroborated by this Court's assessment of the Committee's official tally. The exhibit which contains the formal totals appears to indicate that the figures were altered at some point. In any event, the later-added figures which replaced the crossed-out numbers were 625 for Campbell and 649 for Whittington, which would reflect the subtraction of the challenged 21 absentee ballots.

¶5. Regardless, Whittington won under either set of figures, unless Campbell's claim is true that the crossed-out figure for him was 652 votes. Campbell insists there is some document which shows the count to be 652 votes for him; however, we have not seen such a document. Campbell claims the Amite County Circuit Clerk crossed out the original totals without authorization from the Committee, after she was advised by the Attorney General's Office that challenged votes should not be counted. The Chairman of the Committee testified that they certified Campbell to have 652 votes; the clerk, however, testified that the document was finally certified after the alterations were typed in, which gave Campbell 625 votes.

¶6. The 646 crossed-out figure for Campbell is consistent with testimony that the Committee initially decided to count the absentee ballots and not the affidavit ballots. Nevertheless, during the course of the Committee's analysis of whether the challenged votes should be counted, the chairman of the Committee and the circuit clerk of the county contacted the Attorney General's Office for guidance.

¶7. An assistant attorney general orally advised the clerk that challenged votes should not be counted, but should be tallied in a separate return. The assistant attorney general reiterated this in a letter dated the following day, addressed to the chairman of the Committee. The assistant attorney general then crossed out the return figures that the Committee had given her and subtracted the 21 challenged absentee ballots from the figure for Campbell (all of the 21 absentee votes were for Campbell), thereby making Whittington the winner.

¶8. Following the certification and announcement of Whittington as the winner, Campbell challenged the decision via a sworn Petition Contesting the Election, filed with the Committee. On September 28, 1995, the Committee convened to address Campbell's petition, in which he argued that the 27 votes (21 absentee and six affidavit ballots) should have been counted. At the Conclusion of that meeting, the Committee decided to count all 27 challenged votes. This decision effectively made Campbell the winner. Apparently nothing was communicated to the Secretary of State about the change in the winner because Whittington appeared on the general election ballot, unopposed, on November 7.

¶9. Before the general election, Whittington, now aggrieved by the Committee's reversal of its earlier certification and decision not to count the votes, filed a Petition for Judicial Review in the circuit court, seeking review of the Committee's actions. Pursuant to Miss. Code Ann. § 23-15-929 (Rev. 1990), this Court appointed Chancellor Denise Owens to sit as circuit Judge in the matter. ¶10. In accord with § 23-15-935, the circuit court, along with four Amite County election commissioners (the special tribunal), held a hearing on the matter. At the hearing, several Committee members testified, along with an assistant attorney general and several voters whose ballots were challenged. Following the hearing, the circuit court ruled that all of the absentee ballots were too irregular to be counted. Davis Anderson witnessed all 21 absentee ballots. He was accused by two of the voters, via deposition testimony or at the hearing, of overreaching. At the hearing, Anderson admitted signing several applicants' signatures to their ballots. Only one ballot application contained the date of the voters' signatures, although several were dated at the witness's signature and all were dated on the "Filed" stamp. One voter repudiated her ballot at the hearing and testified that she intended to vote for Whittington, not Campbell. Another voter failed to sign the envelope across the flap.

¶11. Considering the combined effect of the cited errors, the court found there was a persistent failure to comply with the election code and noted how suspicious it looked that all of the absentee ballots were witnessed by the same person, Anderson. As such, the court concluded that it had grave doubts about the integrity of the absentee ballots and consequently held them invalid. The court further found that the irregularities were not merely technical violations, but suggested flaws in the "very soul of the absentee ballot application."

¶12. Having thrown out 20 of the 21 absentee ballots (the trial court deemed one of the absentee ballots to be valid), the court declined to consider the validity of the affidavit ballots, ruling that such consideration was pointless as they could not change the outcome of the election. Two commissioners completely concurred with the court's holding; one partially concurred; and the fourth commissioner became ill and did not participate in the result. Based upon her ruling, the trial court formally declared Whittington the winner of the District 3 supervisor race, having found that Whittington was first certified as the winner of the race and that Whittington received 649 votes as opposed to Campbell's 626 (the original total of 625 1 absentee ballot deemed valid by the trial court) votes.

II.

ΒΆ13. Campbell presently appeals the lower court ruling, raising four issues, including: whether the interference by the circuit clerk in the Committee's canvass procedure seriously undermined the fundamental fairness of the electoral process; whether the court erred in admitting into evidence the absentee ballots, the absentee ballot envelopes, and the absentee ballot applications due to a break in the chain of custody; that candidate Whittington did not prove fraud with respect to the absentee ballots; and, whether the ...


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