Wesley v. Wash. Cnty. Democratic Exec. Comm.

• Decision Date: 30 November 2017
• Docket Number: NO. 2016–EC–00675–SCT,2016–EC–00675–SCT
• Citation: 235 So.3d 1379
• Parties: Troy WESLEY v. WASHINGTON COUNTY DEMOCRATIC EXECUTIVE COMMITTEE and Carl McGee
• Court: Mississippi Supreme Court

235 So.3d 1379

Troy WESLEY

v.WASHINGTON COUNTY DEMOCRATIC EXECUTIVE COMMITTEE and Carl McGee

NO. 2016–EC–00675–SCT

Supreme Court of Mississippi.

November 30, 2017

ATTORNEY FOR APPELLANT: JAMIE FERGUSON JACKS, CLEVELAND

ATTORNEYS FOR APPELLEE: SANDRA JARIBU HILL, WILLIE GRIFFIN, GREENVILLE

BEFORE WALLER, C.J., KITCHENS, P.J., AND BEAM, J.

BEAM, JUSTICE, FOR THE COURT:

¶ 1. Appellant Troy Wesley lost the Democratic primary election for Washington County District 3 Supervisor on August 4, 2015. He subsequently petitioned the circuit court to request a new election, alleging that numerous irregularities had invalidated the former one. After a hearing on the matter, the Washington County Circuit Court granted summary judgment to defendants Carl McGee and the Washington County Democratic Executive Committee. Aggrieved, Wesley now appeals to this Court. In his appeal, Wesley cites no discrepancy in the original vote totals and instead focuses his arguments on procedural problems, including an alleged lack of ballot-box security. While the failure to maintain ballot-box security is a serious issue worthy of reprimand, we find that Wesley's arguments are insufficient to raise a genuine issue of material fact and that summary judgment was properly entered in favor of the defendants.

FACTS

¶ 2. On August 4, 2015, the Democratic primary for Washington County District 3 Supervisor resulted in candidate Carl McGee receiving 448 votes and Troy Wesley receiving 378. The vote totals for the two candidates differed by 70 votes, but Wesley challenged the election—first by filing a petition with the Washington County Democratic Executive Committee (WCDEC), then by filing a complaint in Washington County Circuit Court against Carl McGee and the WCDEC. Before the trial court, Wesley alleged that numerous violations of election law had taken place and asked for a new election.

¶ 3. Prior to trial, both sides requested summary judgment. On October 21, 2015, McGee filed such a motion; then the WCDEC filed a motion for dismissal or, in the alternative, summary judgment. Wesley then filed for summary judgment and offered his own affidavit and various photos of ballot boxes in support of his allegations in the case. The trial court eventually held a hearing on February 23, 2016, and concluded that "[t]here has not been demonstrated to the Court that there [were] enough illegal votes cast ... to change the result of the election." The court continued, explaining that "[i]t has not been established that so many votes are disqualified that the will of the voters is not established by this vote count." Accordingly, the court issued an Order of Dismissal, in which it dismissed the case "with prejudice and all cost taxed to Plaintiff."

Though noting that all of the parties admitted election irregularities had occurred, the court denied Wesley's motion for summary judgment and granted the motions of McGee and the WCDEC. Aggrieved, Wesley appealed to this Court.

¶ 4. In his appeal, Wesley continues to allege that numerous election irregularities occurred and that those irregularities require a new election for Washington County District 3 Supervisor. Narrowing his arguments to focus on ballot-box security, Wesley alleges the following:

1) The election result ballot boxes were not properly sealed as prescribed by law;

2) Election machine memory cards and results from machines were not in any closed box whatsoever, but in an open cardboard box in the circuit clerk's office;

3) The circuit clerk did not control and secure the ballot boxes as she was not in control of the boxes for weeks following the election;

4) Ballot boxes were left in the hallway of the courthouse, their tops open and at least one member[ ] of the WCDEC removed items from these boxes, all prior to Wesley's examination of the boxes;

5) Because of the WCDEC's failure to properly tally affidavit and absentee votes, the circuit clerk herself was forced to tally these votes;

6) Washington County Election Commission (William Gist) also handled and canvassed ballots for the WCDEC;

7) There is no agreement between the Washington County Election Commissioners and the WCDEC to assist in the canvass of ballots;

8) There was no evidence in any of the election boxes that ballots were properly received and accounted for by the Receiving Managers at the polls—there were no receipts signed showing how many ballots were delivered (affidavit and curbside); and

9) The results from the Lake Vista Lodge Machine # 1 could not be found during Wesley's examination.¹

Wesley argues that "the ballot box security issues alone are enough to warrant a new election."

¶ 5. In response to Wesley's appeal, McGee asserts that Wesley failed "to provide concrete evidence to prove" that "alleged ‘radical departures' changed the outcome of the election." Indeed, McGee claimed that, even if true, the irregularities noted by Wesley applied only to the 2.8% of the votes cast on paper, rather than electronic ballots. By themselves, the paper ballots were too few in number to change the election outcome. McGee admitted that "various technical glitches" and "improper handling of paper ballots" had occurred, but he noted that Wesley "did not allege fraudulent or intentional illegal conduct on the part of election officials." According to McGee, allegations of fraud or intentional wrongdoing are necessary before a Mississippi court will overturn an election.

¶ 6. Meanwhile, the WCDEC presents arguments similar to McGee's. It notes that only twenty-four ballots cast in the election were known to be paper ballots, but it concedes "that there were irregularities committed while the paper ballots were being counted." Still, the WCDEC emphasizes that voters cast 97.2% of the ballots in the election on electronic voting machines (EVMs) and that Wesley "offered no evidence that the integrity of the 802 votes cast by EVMs was destroyed or placed in doubt." Per the WCDEC, Wesley should have shown that an error in the EVM vote totals had occurred. Since he did not, too few disqualified votes existed to warrant a new election.

¶ 7. In response to the arguments of McGee and the WCDEC, Wesley asserts that "the multiple ballot box security issues called all of the votes into question." He also remarks that "no one ... can be certain how many paper ballots were cast in this election because the boxes were never properly secured." Thus, according to Wesley, the percentage of paper ballots versus electronic ballots was irrelevant, and the irregularities require a new election, whether or not they were fraudulent in nature.

ANALYSIS

¶ 8. Now, more than two years after voters first went to the polls in the Democratic primary for Washington County District 3 Supervisor, this Court must decide whether summary judgment against Wesley was appropriate.

¶ 9. In doing so, and in accord with longstanding practices, "[t]his Court applies a de novo standard of review to a circuit court's grant or denial of summary judgment." Indemnity Ins. Co. of N. Am. v. Guidant Mut. Ins. Co. , 99 So.3d 142, 149 (Miss. 2012). Summary judgment is proper "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Miss. R. Civ. P. 56(c) ; see also Indemnity Ins. Co. of N. Am. , 99 So.3d at 149. In assessing summary judgment, "the evidence must be viewed in the light most favorable to the party against whom the motion has been made." Kilhullen v. Kansas City S. Ry. , 8 So.3d 168, 174 (Miss. 2009) (citing Daniels v. GNB, Inc. , 629 So.2d 595, 599 (Miss. 1993) ).

¶ 10. When a case involves an election, courts tread carefully, warranting new primary elections only under certain circumstances. "In a primary election contest, an election should be voided only if there has been such a departure from statutory compliance ‘as to destroy the integrity of the election and make the will of the qualified electors impossible to ascertain.’ " Waters v. Gnemi , 907 So.2d 307, 315–16 (Miss. 2005) (quoting Riley v. Clayton , 441 So.2d 1322, 1328 (Miss. 1983) ). The key to reviewing an election is to take the interests of the candidates into account while at the same time ultimately seeking to fulfill the will of the voters. Noxubee Cty. Democratic Exec. Comm. v. Russell , 443 So.2d 1191, 1197 (Miss. 1983) ; Rogers v. Holder , 636 So.2d 645, 651 (Miss. 1994) ; see also Guice v. McGehee , 155 Miss. 858, 124 So. 643, 647 (1929) (noting "a general rule that election laws are construed liberally in favor of the electors").

¶ 11. Mississippi law sets detailed guidelines for local officials to follow when conducting an election, and those guidelines address the proper means for securing election materials both before and after voters have cast their ballots. In the case before us, Mississippi Code Section 23–15–597 controls. This section requires that, after a county primary election, a major political party's county executive committee is required to canvass the votes, unless it has an otherwise legal, written agreement with the circuit clerk or the county election commission permitting the circuit clerk or county election commission to help in the process.² Miss. Code Ann. § 23–15–597 (Rev. 2015). Once the canvassing process for a ballot box is complete, the law requires that

[A]ll the contents of the box required to be placed and sealed in the ballot box by the managers shall be replaced therein by the election commission or executive committee, as the case may be, and the box shall be forthwith resealed and delivered to the circuit clerk, who shall safely keep and secure the same against any tampering therewith.

Miss. Code Ann. § 23–15–911(1) (Rev. 2015).³ Items that should have been sealed in the ballot box by that point include "all ballots voted, all spoiled ballots, ... all unused ballots," a certificate declaring the...