Adkins v. Huckabay

• Decision Date: 25 February 2000
• Docket Number: No. 99-C-3605.,99-C-3605.
• Parties: David G. ADKINS v. Lester Shields "Buddy" HUCKABAY, III, Sheriff; W. Fox McKeithen, Honorable Secretary of State; the Honorable Jerry Fowler, Commissioner of Elections.
• Court: Louisiana Supreme Court

755 So.2d 206

David G. ADKINS v. Lester Shields "Buddy" HUCKABAY, III, Sheriff; W. Fox McKeithen, Honorable Secretary of State; the Honorable Jerry Fowler, Commissioner of Elections.

No. 99-C-3605.

Supreme Court of Louisiana.

February 25, 2000.

Chris J. Roy, Sr., Jacques Maurice Roy, Alexandria, Counsel for Applicant.

Sheri Marcus Morris, Merietta Spencer Norton, Baton Rouge, Edwin Henry Byrd, III, Robert A. Dunkelman, Pettiette, Armand, Dunkelman, Woodley, Byrd & Cromwell, Coushatta; James Guenard Bethard, Bethard & Bethard, Shreveport; Celia R. Cangelosi, Baton Rouge, Carey Thompson Jones, Denham Springs, Counsel for Respondent.

KNOLL, Justice.¹

This is an election contest arising from the runoff election for sheriff of Red River Parish. The sole issue presented for our determination is whether the absentee voting irregularities complained of render it impossible to determine the outcome of the election. In deciding this issue, we are called upon to determine whether we will apply strict compliance or substantial compliance to the absentee voting law. After a careful and thorough review of the record and study of the law, we conclude for reasons expressed below that we will apply the standard of substantial compliance to the absentee voting law, and that under this standard, one mail-in ballot and four personally hand-delivered ballots fail to substantially comply with the essential requirements of the absentee voting law and that those irregularities adversely affected the sanctity of the ballot and the integrity of the election making it impossible to determine the winner.² Accordingly, we reverse and set aside the judgment of the court of appeal, reinstate the judgment of the trial court vacating the election, and order a Special General Election between the candidates.

FACTS

On November 20, 1999, a runoff election for Sheriff of Red River Parish was held between David G. Adkins ("Adkins") and Lester Shields "Buddy" Huckabay, III ("Huckabay"). A margin of three votes decided the election. Adkins received 2,246 votes while Huckabay received 2,249 votes. Of this total, Adkins received a majority of the votes cast at the polls on election day receiving 2,075 votes to Huckabay's 1,941. Huckabay, however, received a majority of the absentee votes receiving 308 to Adkins's 171. When the parish Board of Election Supervisors ("Board"), composed of Judith Huckabay (the Clerk of Court and wife of defendant Sheriff Huckabay),³ Lynda H. Kile (the Registrar of Voters), and Ed Lester, met to begin tabulating and counting the absentee ballots, Donald Browne, as representative for Adkins, objected to all of the absentee ballots not properly executed in conformity with La. R.S. 18:1306,:1309,:1310. Mr. Browne testified that during the counting of absentee ballots and after Mr. Lester agreed that all ballots not properly executed, i.e., those ballots that were not notarized or witnessed by two people, should be thrown out, Mrs. Huckabay called the Commissioner of Elections Office. Because of the challenge and the call, the Board voted to invalidate forty-three of the mail-in absentee ballots that were not properly executed; however, the Board voted not to throw out the walk-in ballots for failure of proper execution. Mr. Browne re-urged his challenge to preclude all ballots, including walk-in absentee ballots, not properly executed. Further, Mr. Browne requested to see each ballot individually to make a challenge. However, Mrs. Huckabay, as Chief Election Officer, denied the request, stating "we have always done things this way and we are going to continue doing it this way."⁴ Thus, the remaining absentee ballots were counted in the official returns. Based on all the irregularities, Adkins brought a timely election suit seeking to be declared the winner or to void the results of the election and have a new one ordered.⁵

PROCEDURAL HISTORY

This matter was tried in open court in December 1999, over the course of six days. The trial court,⁶ after considering the testimony, the evidence, and the arguments, set aside and vacated the results of the election and ordered a Special General Election for February 5, 2000, between Adkins and Huckabay. The trial court found that Mr. Browne exercised due diligence in challenging all absentee ballots, mail-in and walk-in, that were not properly executed or facially invalid, expressing doubt that he had free access to the ballots as suggested by the defendants.⁷ Thus, considering the law and Mr. Browne's challenge, the court found that while there was no evidence of fraud, it was incumbent upon the Board at least to look at the face of the absentee ballots for irregularities.⁸ Based on its review of the contested ballots, the court concluded that because of the serious irregularities, thirty-eight votes were invalid and should not have been counted.

The Court of Appeal, Second Circuit, reversed the judgment of the trial court and declared Huckabay the winner of the runoff election. In reversing the trial court, the appellate court concluded that Louisiana's absentee voting statutes, enacted pursuant to a constitutional mandate, should not be strictly construed. Instead, the court of appeal reasoned that where the electors have substantially complied with the absentee voting law and the irregularities complained of do not adversely affect the sanctity of the ballots or the integrity of the election, courts should not disenfranchise those electors. The court found that while there were irregularities in this case, they were unintentional and harmless. Thus, the court concluded that all the ballots the trial court disqualified, except two, substantially complied with the law. As for the two votes, the court pretermitted any discussion on them noting that because the margin of victory was three addressing these two votes was not necessary. Adkins v. Huckabay, 33,593, 749 So.2d 900, 909, 1999 La.App. LEXIS 3634, at *25-26 (La. App. 2 Cir. 12/23/99). We granted certiorari to consider the correctness of the court of appeal's judgment. Adkins v. Huckabay, 99-3605, 753 So.2d 222, 2000 La. LEXIS 198, at *1 (La.1/19/00).

LAW AND ANALYSIS

DUE DILIGENCE

We begin our discussion by starting with whether Adkins or his representative Donald Browne, a former Louisiana State Trooper,⁹ exercised due diligence in challenging all absentee ballots, mail-in and walk-in, that were not properly executed or facially invalid in the runoff election. The Election Code provides that "[d]uring the counting and tabulating of absentee ballots, any candidate or his representative, member of the board, or qualified elector may challenge an absentee ballot for cause, other than those grounds specified in R.S. 18:565(A)." La. R.S. 18:1315(B). Further, it provides that "[a]n objection to the qualifications of a voter, except for an objection to a voter who should have been removed from the voter registration rolls pursuant to R.S. 18:173, or to an irregularity in the conduct of the election, which with the exercise of due diligence could have been raised by a challenge of the voter or objections at the polls to the procedure, is deemed waived." La. R.S. 18:1315(B).

The defendants contend that Mr. Browne's "blanket challenge" was insufficient and that he should have individualized his challenges. The trial court found that Mr. Browne exercised due diligence in challenging all absentee ballots and expressed doubt that he had free access to the ballots as suggested by the defendants. Our review of the record clearly supports this finding. Mr. Browne testified that when he arrived at the courthouse, he was told that the mail-in absentee ballots were in one box and the walk-in absentee ballots were in another. He could not confirm this because he did not get to look at the ballots. Because of a concern regarding possible fraud with absentee ballots, Mr. Browne showed Mr. Lester a blank absentee envelope and pointed out that it clearly stated "Must be notarized or signed by two witnesses." He then told Mr. Lester that without the ballots being notarized or witnessed, the election would be left open to total fraud or corruption. When the Board began counting the ballots, Mr. Browne informed Mrs. Huckabay that he wanted to make some challenges. Mrs. Huckabay questioned on what grounds he was challenging. He stated that he was challenging the votes of Mrs. Sandra Kay Huckabay and John Henry McDonald on the grounds that they voted in person at the polls and absentee. Mrs. Huckabay responded that there were two John Henry McDonald's and discussed Sandra Huckabay's ballot. The opening of the absentee ballots then began again, at which point Mr. Browne again stated that he wanted to challenge all ballots not properly executed. He also stated that he was not allowed to look at any of the ballots Mrs. Huckabay was preparing for counting. As Mrs. Huckabay was separating the ballots, Mr. Lester noticed his wife's absentee ballot, which was not witnessed or notarized, and stated that if it was not counted there would be a lawsuit.

After some conversation regarding Mr. Browne's challenge, Mrs. Huckabay telephoned the Commissioner of Elections' office to seek advice. The Board then met and voted to reject forty-three mail-in absentee ballots, which had been chosen and separated from the other mail-in absentee ballots by Mrs. Huckabay and her two assistants that were facially invalid in that they were not properly executed, and to accept as valid all walk-in ballots. These forty-three absentee ballots were the only ballots Mr. Browne was allowed to see and count. Mr. Browne reurged his challenge to all remaining absentee ballots, mail-in and walk-in, not properly executed, which was denied. He then asked to see each ballot so he could make individual challenges, which was denied. The reason given by Mrs. Huckabay was that this was the way they had always done things, that they were going to continue to do things this way,...