Folson v. Fulco

• Decision Date: 05 November 2020
• Docket Number: NO. 2020-EC-00257-SCT,2020-EC-00257-SCT
• Citation: 305 So.3d 406
• Parties: Luther Gene FOLSON, Jr. v. Mark D. FULCO
• Court: Mississippi Supreme Court

305 So.3d 406

Luther Gene FOLSON, Jr.

v.Mark D. FULCO

NO. 2020-EC-00257-SCT

Supreme Court of Mississippi.

November 5, 2020

ATTORNEY FOR APPELLANT: WILLIE GRIFFIN, Greenville

ATTORNEYS FOR APPELLEE: KENT E. SMITH, Holly Springs, THOMAS A. WALLER

BEFORE KITCHENS, P.J., BEAM AND ISHEE, JJ.

KITCHENS, PRESIDING JUSTICE, FOR THE COURT:

¶1. Before the Court are a direct appeal and a cross-appeal concerning the 2019 general election for sheriff of Yalobusha County. Mark D. Fulco was declared the winner by a margin of two votes. Luther Gene Folson, Jr., contested the election. The trial court ordered that a special election be held because the commingling of four illegal absentee votes with legal absentee votes had made it impossible to discern the will of the voters. Folson appeals the trial court's order. This case is under expedited review. Order, Folson v. Fulco , No. 2020-EC-00257-SCT (Miss. May 1, 2020); see also Waters v. Gnemi , 907 So. 2d 307, 316 (Miss. 2005) ("[E]lection contests (both primary and general) are by their very nature required to be put on a ‘fast-track’ by both election officials and the courts.").

¶2. The issue on direct appeal is not whether there were illegal votes; rather the issue is whether a special election is the appropriate remedy. On cross-appeal, the issue is whether newly registered voters who had not voted in the general election should be allowed to vote in the court-ordered special election.

¶3. The trial court appropriately ordered a special election after determining that the will of the voters could not be ascertained. Fulco's cross-appeal is without merit because Mississippi law allows an elector to vote in any election as long as the elector satisfies the necessary voting requirements. Thus, we affirm the trial court's decision.

FACTS

¶4. On November 5, 2019, the general election for the office of sheriff of Yalobusha County was held. After the votes were tallied by the Yalobusha County Election Commission (YCEC), the YCEC declared Fulco the winner by a margin of two votes. The YCEC certified that Fulco had received a total of 2,569 votes to Folson's total of 2,567 votes.

¶5. On November 25, 2019, Folson filed a petition to contest the election in the Yalobusha County Circuit Court. Folson claimed that multiple absentee vote violations had occurred and that, but for those violations, he would have won the election. This Court appointed a special circuit judge to preside over the election contest.

¶6. The parties stipulated the following facts:

1. In Beat 1, North, one absentee ballot should have been rejected because the elector did not sign his ballot envelope or his application for absentee electors ballot, and this ballot was commingled with other legally cast ballots in that precinct.

2. In Beat 1, North, one elector voted absentee and in person, meaning two votes were counted for this elector. "Her absentee ballot should have been rejected but was instead counted and was commingled with the other legal absentee ballots."

3. In Beat 4, Oakland precinct, two absentee ballots should have been rejected due to the elector's [sic] failure to sign their applications for absentee ballots, and those ballots "were commingled with the total of 29 absentee ballots cast in that precinct."

4. In Beat 5, Coffeeville, one absentee ballot, which clearly indicated a vote for Fulco, was rejected when it should have been accepted and included in Fulco's total number of votes.

5. In Beat 4, Coffeeville, "none of the 25 absentee voters' names were written into the Voter Receipt Book as required by statute."

¶7. Both parties moved for summary judgment.¹ Fulco's motion for summary judgment acknowledged that illegal votes were cast and that (1) the two illegal votes from Beat 1, North, should be subtracted from Fulco's total of votes from this precinct and (2) that "all of the Beat Four[,] Oakland[,] absentee ballots should be declared void" and those votes should be subtracted from the corresponding candidate. Folson averred that he was entitled to summary judgment because there was no dispute that illegal absentee ballots were indeed counted and that the illegal ballots "should be subtracted from the total votes cast for each party and the election determined from the remaining ballots at each precinct."

¶8. In response, on January 23, 2020, the trial judge sent an email to both parties asking "what is the remedy concerning the other legal absentee ballots with which they [one or more illegal ballots] were intermingled and counted?" Fulco argued that the appropriate remedy was to use "the rule of proportional deduction (pro-rata)," which "is a mathematical calculation wherein the number of illegal votes from each precinct must be deducted in direct proportion to the ratio of votes each candidate received in the entire precinct."² According to Fulco, if this method were used, "both candidates would lose two (2) votes each," and he "would still win the election by two (2) votes." Folson responded that the appropriate remedy would be for the trial court to disqualify all of the votes from Beat 1, North, and Beat 4, Oakland, because the illegal votes from those precincts were commingled with the remaining legal votes, making it impossible to distinguish the legal votes from the illegal votes.

¶9.On January 27, 2020, a bench trial and motion hearing occurred. The trial judge ordered the absentee ballots for Beat 1, North, and Beat 4, Oakland, to be tallied in the courtroom. A total of eighty-two absentee ballots had been cast in Beat 1, North: fifty-one for Fulco, twenty-eight for Folson, two no votes, and one write-in. For Beat 4, Oakland, a total of twenty-nine absentee ballots were cast: twelve for Fulco and seventeen for Folson.

¶10. "After reviewing the motions, stipulations, hearing testimony of the Circuit Clerk and arguments of counsel," the trial judge made the following ruling:

A. As for Beat 5, Coffeeville[,] the [c]ourt finds that the one rejected ballot should in fact be counted for Mr. Fulco and so orders same. The count of said ballot will increase Mr. Fulco's total by one vote in the results counted in the Beat 5, Coffeeville[,] precinct.

B. As for Beat 4, Coffeeville[,] the [c]ourt finds that the 25 absentee votes not recorded in the Voter Receipt Book should remain as valid ballots, in that the statute requiring the same was directory not mandatory in nature, and that no prejudice resulted. The irregularity was "not intended to affect the integrity of the election." Thompson v. Jones , 17 So. 3d 524, 526 (Miss. 2008).

C. In Beat 1, North[,] and in Beat 4, Oakland[,] the [c]ourt finds that the four ‘tainted’ ballots which were commingled with the 107 remaining legal ballots did in fact taint those ballots, making it impossible to determine an accurate total of votes each candidate received in those precincts.

¶11. The trial judge disagreed with both parties' suggested remedies. The trial judge reasoned that Folson's suggestion was inappropriate because

Mr. Fulco received 51 out of 79 counted absentee ballots, or 64.5%, in Beat 1, North. To throw out all those votes would totally disenfranchise those voters. This method would also disenfranchise the 29 absentee voters in Beat 4, Oakland. This would not only be unfair to those voters but would generate a lack of public confidence, if not distrust of the election process in Yalobusha County.

¶12. As for Fulco's suggested remedy, i.e., the pro rata method, the trial judge reasoned that "[w]hile attractive on its face because it does not disenfranchise scores of innocent voters, this mathematical calculation relies heavily on political guesswork, i.e., the court is asked to make political assumptions about the remaining untainted votes which this court is not equipped to do."

¶13. Instead, the trial judge conducted the two-pronged test set forth in Noxubee County Democratic Executive Committee v. Russell , 443 So. 2d 1191 (Miss. 1983), and determined that it was "impossible to tell who legitimately actually won" and to "discern the will of the voters" in this election, which was decided by a mere two votes. Thus, the "fair and just solution to the intermingling of the 4 tainted ballots within the absentee ballot pool in Beat 1, North[,] and Beat 4, Oakland[,] precincts is to order a new election, but only in those precincts, given that the will of the voters in those two precincts is impossible to determine." The trial court's final judgment was entered on February 6, 2020. Folson filed his notice of appeal on March 5, 2020.

¶14. On February 21, 2020, Fulco filed a motion for clarification, asking the trial court to "clarify its order and declare that the only voters that will be allowed to vote in the special election ordered for Beat 1[,] North Water Valley[,] and Beat 4[,] Oakland[,] shall be the voters that were duly registered and qualified to vote in the November 5, 2019 general election precincts." In response, Folson asserted that "pursuant to Mississippi law each person who registers to vote at least thirty (30) days prior to a special election is qualified to vote in the special election." The trial court denied Fulco's motion for clarification on March 20, 2020. Fulco's notice of appeal and/or cross-appeal was filed on April 17, 2020.

¶15. On direct appeal, Folson argues that the trial judge's ruling was erroneous and that the judge should have "declar[ed] Folson the winner as required by Miss. Code Ann. § 23-15-951" after deducting the invalidated absentee ballots from the Beat 1, North, and Beat 4, Oakland, precincts. Fulco contends that the will of the voters is at issue and that Mississippi case law demands that a special election be held.

¶16. On cross-appeal, Fulco argues that newly registered voters should not be allowed to vote in the upcoming special election because the special election is a continuation of the general election and to allow postelection registrants to vote would be unfair to prior registered voters.

STANDARD OF REVIEW

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