Williams v. Lide

• Court: Supreme Court of Alabama
• Citation: 628 So.2d 531
• Parties: Curtis WILLIAMS v. John T. LIDE. John T. LIDE v. Curtis WILLIAMS. 1921020, 1921023.
• Decision Date: 08 October 1993

Page 531

628 So.2d 531

Curtis WILLIAMS v. John T. LIDE.

John T. LIDE v. Curtis WILLIAMS.

1921020, 1921023.

Supreme Court of Alabama.

Oct. 8, 1993.

Collins Pettaway, Jr., and J.L. Chestnut, Jr. of Chestnut, Sanders, Sanders & Pettaway, P.C., Selma, for appellant/cross-appellee.

John W. Kelly III, Selma, for appellee/cross-appellant.

On Application for Rehearing

PER CURIAM.

This Court's opinion issued August 23, 1993, is withdrawn, and the following is substituted therefor:

Rev. Curtis Williams appeals and John T. Lide conditionally cross-appeals from a judgment in an election contest brought by Lide. Lide and Williams competed with one another for election to the Dallas County Commission, district 2. According to the votes counted by officials on the evening of the election, November 3, 1992, Williams received the most votes: 2,269 to Lide's 2,265.

On November 17, 1992, Lide filed an election contest, alleging:

"(1) that illegal votes were given to and counted for Williams; (2) that legal votes for Lide were unlawfully rejected; (3) that there was malconduct, fraud, or corruption involved in the election; and (4) that there was miscalculation, mistake, or misconduct in counting and tallying of votes by election officials."

On April 9, 1993, the trial court entered a judgment for Lide, based on its finding that Lide had received the highest number of legal votes cast on November 3, 1992. The trial court counted 2,272 legal votes for Lide and 2,262 legal votes for Williams.

The principal issues raised by Williams on appeal pertain to: (1) the voting rights of convicted felons; (2) the legality of certain challenged votes; (3) the legality of certain absentee votes; and (4) the trial court's exclusion of the proffered testimony of Mary James.

I. CONVICTED FELONS

Ala. Const. of 1901, art. VIII, § 182, disqualifies a person from voting who has been convicted of a crime punishable by imprisonment in a penitentiary. The purpose of disfranchising a person who has been convicted of a felony is "to preserve the purity of the ballot box rather than to inflict an additional penalty on the offender." 29 C.J.S. Elections § 33, n. 10 (1965). One who has been disfranchised by reason of conviction of a disqualifying crime may seek restoration of the right to vote, by pardon. Ala.Code 1975, § 17-3-10.

At trial, Lide proved that eight persons who had voted in the November 3, 1992, election for the Dallas County Commission, district 2, had been convicted of a felony, for which they were sentenced to a penitentiary, and had not had their voting rights restored. Accordingly, the trial court rejected those persons' votes.

Williams contends that those eight people were entitled to vote, because the board of registrars had not notified them that their names had been removed from the voter registration list. Ala.Code 1975, § 17-4-132, requires the board of registrars to notify, by certified mail, each person convicted of a disqualifying offense that the board intends to strike that person's name from the voter registration list. Section 17-4-132 also provides that "Any person whose name is stricken from the list may appeal from the decision of the board...."

We determine that the legislative intent for requiring notice, by certified mail, of the board's intention to strike a person's name from the registration list is two-fold: (1) to provide an elector with a reasonable opportunity to prevent his disfranchisement by offering proof that he had not been convicted of the disqualifying offense, and (2) to apprise an elector of the fact of his disqualification, thus providing him an incentive to seek the restoration of his right to vote. See generally § 17-3-10 ("restoration of right to vote upon pardon"; specific statutory provision for reinstatement of voting rights upon submission of a copy of the pardon document).

However, there is no authority for Williams's contention that parties who are disqualified from voting under § 182 nonetheless retain their right to vote until they

are notified pursuant to § 17-4-132 that the board intends to remove their names from the registration list. ¹ Section § 182 appears to be the sole authority for determining who has a right to vote. Section 17-4-132 merely provides the board of registrars with a method of purging the voter registration list that complies with due process; specifically, it protects those citizens whose names the board has selected, erroneously, for removal from the voter registration list, by giving those citizens an opportunity to contest the removal of their names. The presence or absence of a person's name on the voter registration list does not necessarily determine the right to vote

Lide proved that the eight persons in question were disqualified from voting under § 182; accordingly, the trial court properly rejected the votes cast by those persons.

II. CHALLENGED VOTERS

"If an elector's name is not on the voting list, election officials should not permit him to vote unless he presents a certificate from the Board of Registrars or unless he votes a challenged ballot. Section 17-4-127, Code of Alabama (1975). A challenge to an elector's vote may be made by any election inspector or qualified elector who knows or suspects that a person who is not duly qualified to vote will attempt to cast a ballot. If an elector has been challenged, election officials are not supposed to allow the challenged voter to cast a ballot until he takes an oath affirming his right and entitlement to vote [on the form set forth in Ala.Code 1975, § 17-12-3,] and he identifies himself in the manner set out in [§ 17-12-4]."

Hawkins v. Persons, 484 So.2d 1072, 1073 (Ala.1986). Section 17-12-3 requires that a challenged elector's oath be administered by an election inspector. "If a challenged elector subscribes to the oath and properly identifies himself, his ballot must be received and counted as if he had not been challenged." Hawkins, 484 So.2d at 1073.

In this election contest, the parties contested 71 challenged ballots cast in district 2, Dallas County, Alabama, on November 3, 1992. The grounds for contesting the votes were generally two: (1) the voter did not reside in district 2; or (2) the voter's oath was deficient because it was not signed by an election inspector or did not adequately identify the voter's place of residence. Pursuant to this Court's holding in Hawkins, the trial court permitted challenged voters whose oaths were defective as a result of mistakes of election officials to testify at trial to cure those defects. See Hawkins, 484 So.2d at 1074 (citing Pope v. Howle, 227 Ala. 154, 149 So. 222, 225 (1933)). After the parties had completed their presentation of evidence, the court privately compared the challenged voters' ballots to their oaths and to the evidence. Then, on April 9, 1993, the trial court issued a final order, listing by polling place, not by individual voter (so as to preserve the privacy of each citizen's vote), the number of challenged votes accepted and in whose favor it had counted those votes.

In reviewing the trial court's findings of fact in this election contest, we apply the same standard used by appellate courts when the trial court in a nonjury case has taken a material part of the evidence through ore tenus testimony; that is, we will not disturb the trial court's findings of fact unless those findings are plainly and palpably wrong and not supported by the evidence. Mitchell v. Kinney, 242 Ala. 196, 200, 5 So.2d 788, 797 (1942).

A. Union National Guard Armory

Twenty-six electors voted challenged ballots at the Union National Guard Armory polling place. Through inadvertence, polling officials failed to count any of those ballots. The ballots contained 19 additional votes for Lide, 5 additional votes for Williams, and 2 ballots with no vote for a member of the Dallas County Commission, district 2. The vast majority of electors who cast challenged ballots at Union had their oaths administered

by a clerk at the polling place, not by an election inspector as § 17-12-3 requires. Accordingly, the parties presented testimony from 19 of those electors in order to cure defects in their oaths

In its final order, the trial court stated that it had considered 21 of the 26 challenged ballots cast at Union and that, of those, it had counted 16 votes: 14 for Lide and 2 for Williams. The court stated that the five ballots considered and rejected by it were rejected because "the voters did not live in district 2 or their oaths were insufficient."

Williams contends that the trial court acted improperly in refusing to consider five of the challenged ballots cast at Union. We can infer from the record that the five challenged ballots not considered by the trial court were not considered because the oaths of those voters were defective and the voters did not testify at trial to cure the defects. Thus, under § 17-12-3, the trial court's decision not to consider those ballots was proper.

Williams also contends that the trial court erred in rejecting five of the challenged votes of voters who testified at trial. Only three of those rejected votes were for Williams. ² A review of the record reveals that one of the five persons who cast challenged votes for Williams supplied an insufficient address on her oath, and, although she testified at trial, her testimony did not prove that she lived in district 2. Another person who cast a challenged vote for Williams identified her signature on an oath, but stated that she did not remember reading the oath and did not remember the inspector asking her to swear to the information therein. A third person who cast a challenged ballot for Williams testified that he was registered to vote, but that he had no voter-registration card in his possession and could not remember when he had registered, although he believed that it was more than 10 years before the election. Thereafter, he stated that he voted for the...