Waters v. Gnemi

• Decision Date: 02 June 2005
• Docket Number: No. 2004-EC-00007-SCT.,2004-EC-00007-SCT.
• Citation: 907 So.2d 307
• Parties: Debra WATERS v. James "Danny" GNEMI.
• Court: Mississippi Supreme Court

907 So.2d 307

Debra WATERS v. James "Danny" GNEMI.

No. 2004-EC-00007-SCT.

Supreme Court of Mississippi.

June 2, 2005.

Rehearing Denied August 4, 2005.

Marvin E. Wiggins, Jr., attorney for appellant.

Leslie Scott, Tommie Sullivan Cardin, Jackson, attorneys for appellee.

EN BANC.

CARLSON, Justice, for the Court.

? 1. Because of the Special Tribunal's order calling for a new election, thus nullifying her apparent victory in the first Democratic primary election for the office of District Three Supervisor in Holmes County, Debra Waters appeals to us seeking relief. Finding that the Special Tribunal appropriately set aside the results of the first primary election and ordered a special second primary between Debra Waters and James "Danny" Gnemi, we affirm.

FACTS AND PROCEEDINGS BEFORE THE HOLMES COUNTY DEMOCRATIC EXECUTIVE COMMITTEE AND THE SPECIAL TRIBUNAL

? 2. The relevant facts concerning the 2003 Democratic primary election for the office of District Three Supervisor in Holmes County are for the most part undisputed. Roy Anderson, James "Danny" Gnemi and Debra Waters qualified to run for the office of District 3 Supervisor. Gnemi was the incumbent, having served as District 3 Supervisor for almost sixteen years at the time of the first primary election on August 5, 2003. Around 4:00 a.m., on August 6, 2003, the Holmes County Democratic Executive Committee (HCDEC) announced that in the District 3 Democratic primary election, Waters had received 576 votes, Gnemi had received 496 votes, and Anderson had received 72 votes. There were two write-in votes and forty residual votes.¹ Additionally, this announcement was made prior to the counting of the affidavit ballots.² Holmes County uses the Optical Mark Reading Equipment Voting System (OMR) to scan and count its ballots.³ The OMR is programmed to "kick-out" ballots containing overvotes and undervotes for visual examination by the appropriate election officials. After the HCDEC convened for the final certification process, it was determined that Waters had received 579 votes, Gnemi had received 503 votes, and Anderson had received 72 votes. In order to arrive at the denominator to calculate the percentage of votes received by each candidate in this supervisor's election, the HCDEC added the total votes of the three candidates (579 + 503 + 72) as well as the write-in (2) and residual (40) votes. This simple math resulted in a total number of 1,196. Using the number 1,196 as the denominator, the HCDEC calculated that Waters had received 48.41% of the vote (579 divided by 1,196), Gnemi had received 42.05% of the vote (503 divided by 1,196), and Anderson had received 6.02% of the vote (72 divided by 1,196). Based on these percentages, it was obvious that there would be a second primary election on August 26, 2003, between Waters and Gnemi, since no candidate received a majority vote.

? 3. Keeping in mind that the August, 2003 primaries in Mississippi involved elections for both state-wide and local offices, immediately after the first primary certification, each of the 82 circuit clerks had to commence preparation in that clerk's respective county for the second primary elections three weeks later. This preparation most importantly included the act of having the ballots printed. This process was commenced in Holmes County, and the second primary ballot included the Waters/Gnemi election. However, during this time-frame, Waters telephoned both the Secretary of State's office and the Mississippi Democratic Party office and talked with unidentified individuals in those respective offices. According to Waters, she was informed in these phone conversations that the residual votes and the write-in votes should not have been included in the vote total to calculate the percentages, and that a recalculation without these 42 votes revealed that Waters was the outright winner of the first Democratic primary, and thus, the Democratic nominee for the office of District Three Supervisor in Holmes County.⁴

? 4. On August 21, 2003, the Holmes County Circuit Clerk's office received a fax transmission from the Secretary of State's office addressed to the HCDEC. This fax included a 1991 Attorney General's opinion stating that "residual and other invalid votes" should not be included in calculating the percentages of votes received by any particular candidate. Around 9:30 a.m. on August 21, 2003, Gnemi (who had been campaigning since August 6th for a second primary) received a telephone call from a supporter inquiring "what's going on at the courthouse?" Upon placing a phone call to Earline Wright-Hart, the Holmes County Circuit Clerk, Gnemi learned that he would "probably be getting a call." Around noon, Gnemi in fact received a phone call from a member of the HCDEC informing Gnemi to be at the courthouse at 1:30 p.m. that day. Upon arrival at the courthouse, Gnemi was informed by Elma Maxine Smith, the HCDEC chair, that there would not be a second primary in the District 3 Supervisor's election because it had been determined that Waters had won the first primary election.⁵ Smith showed Gnemi the fax from the Secretary of State's office addressed to "Mrs. Maxine Smith, as requested." This fax transmission consisted of the 1991 Attorney General's opinion concerning a school bond issue, with discussion as to how to calculate percentages in elections involving residual and write-in votes. Smith then handed Gnemi a typed document which stated:

A question was raised regarding the election results of the District 3 Supervisors (sic) race.⁶

The Holmes County Democratic Executive Committee contacted the Secretary of State Office (sic) to receive information and a recommended ruling on the question raised.

The Holmes County Executive Committee also solicited information from the Attorney General's Office as well as the State Democratic Executive Committee.

Based upon the information received from the above stated agencies, the Holmes County Executive Committee has ruled that Ms. Debra Waters is the declared winner in the District 3 Supervisors (sic) race on August 5, 2003.

? 5. Knowing that the second primary had already been set, and that absentee votes were already being cast by the voters in the Waters/Gnemi run-off, Gnemi, after being blind-sided with this revelation,⁷ not surprisingly wanted to pursue the issue and thus inquired of Smith and the HCDEC members as to what rights he had and whether he could have a "recount."⁸ After this conversation, Gnemi went to the Circuit Clerk's office and prepared a handwritten note which stated, "I wish to have a recount in Dist. 3 election. Only 2 votes difference for a runoff." Gnemi signed and dated this note and then Hart stamped the note as filed on August 21, 2003. Gnemi then went back upstairs in the courthouse where the HCDEC was meeting and in due course, Hart returned and informed the HCDEC that Gnemi had requested a "recount."

? 6. The next day, Gnemi and Waters were present, and Hart presented them with a document which Gnemi and Waters both signed as "agreed to form." The document was dated August 22, 2003, and contained language confirming that Waters, on August 21, 2003, had been declared by the HCDEC to be the winner of the first primary election, that Gnemi had requested an examination of the ballot boxes the previous day, that Waters waived the statutory three-day notice,⁹ and that the examination commenced at 10:45 a.m. and ended at 4:36 p.m. the same day. Since there are six precincts in District 3, Gnemi, during the examination process that day, expected to be presented with six metal precinct ballot boxes which had been sealed since the August 5th primary. However, instead, he was presented with two cardboard boxes containing commingled ballots and other election materials from the six metal precinct ballot boxes.¹⁰ When Gnemi inquired as to why these election materials were not still sealed in the metal ballot boxes, Hart stated that the election materials from the first primary election had to be emptied into the two cardboard boxes so that the metal ballot boxes could be re-used for the upcoming second primary. Hart likewise disclosed two documents signed by Wilbur B. Redmond, the Holmes County District Three Election Commissioner. These documents revealed that Redmond certified that the two cardboard boxes contained the election materials from the August 5th Democratic primary for District 3, and that Redmond had removed these materials from the precinct ballot boxes on August 19, 2003, in preparation for the second primary.¹¹ Despite his concern about the method of preservation of the election materials, Gnemi examined the contents of the two cardboard boxes. Hart was able to identify the election materials by precinct, and as Gnemi concluded his examination of the election materials from a particular precinct, Hart placed these materials, not in one of the two cardboard boxes, but instead in the appropriate metal precinct box, which was then double-sealed.

? 7. After the examination of the election contents, and upon reflection, Gnemi filed an unsworn handwritten protest with the HCDEC at 10:30 a.m., August 25, 2003, the day before the second primary. Some of the complaints contained in Gnemi's petition were (1) that after declaring a second primary in the District 3 Supervisor's election, the HCDEC abruptly canceled the second primary, (2) that at the time of the cancellation of the second primary just 4 days prior to the scheduled date,¹² ballots for the Gnemi/Waters election had been printed and absentee voting was already occurring, (3) that Gnemi was not notified of the HCDEC's action until the afternoon of August 21, 2003, after he had been campaigning for the second primary election since August 6, 2003, and (4) that at the time of the examination of the election materials, it was obvious that these materials had been stored in unsecured cardboard boxes. No action was taken by the HCDEC on Gnemi's...