RESPONSE TO MOTION FOR RECONSIDERATION, HEARING AND CLARIFICATION
COMES NOW, RESPONDENT, GAYLE K. PARKER, Circuit Clerk of Harrison County, Mississippi by and through her Attorney of Record, Tim C. Holleman, Boyce Holleman & Associates, and files her RESPONSE TO MOTION FOR RECONSIDERATION, HEARING AND CLARIFICATION filed by the Petitioner, Chris McDaniel, and in response thereto would state as follows: I.
PETITIONER HAS COMPLETED EXAMINATION OF THE POLL BOOKS IN HARRISON COUNTY
Petitioner failed to advise this Honorable Court that his representatives had commenced and completed examination of the Poll Books 1 of Harrison County, Mississippi before he filed the subject Motion at 19:10:38 on July 18, 2014. See attached Exhibit 1 - Letter from Gayle K. Parker to Mr. Tyner and Mr. Watson. Petitioner has made no inquiry or request regarding the inability to identify voters of the same name and address in Harrison Countys poll books. If Petitioner does so, the Circuit Clerk will attempt to accommodate his request while at the same time protecting the personal information of the voter as required by Miss. Code Anno. 23-15-165 (6)(a) and (b). Now that Petitioner has been granted access to and has, in fact, examined and
1 with dates of birth redacted therefrom. E-Filed Document Jul 21 2014 09:14:22 2014-M-00967 Pages: 9
Resp Motion Reconsider Parker 2 inspected the original poll books of Harrison County, Mississippi mandamus herein is inappropriate. II. EXHIBITS A, B, AND C ARE NOT PART OF THE RECORD This was an action for mandamus against the Circuit Clerk of Harrison County, Mississippi. It is not an action against the Circuit Clerks of Jones County, Jackson County, Hinds County, or Rankin County. Exhibits A, B and C are not part of the record on this appeal 2 and have nothing to do with mandamus against the Circuit Clerk of Harrison County, Mississippi. These exhibits are improper and should be stricken. III. STRAINING ALL CREDIBILITY
Pollbooks are not tally lists or tallies Petitioner and his counsel strain the boundaries of credibility with an entirely new argument that pollbooks are somehow magically transformed into tally lists or tally sheets. A tally list or sheet is nothing more than a certification or accounting of all ballots voted, etc. See Blakeney v. Hawkins, 384 So. 2d 1035, 1036 (Miss. 1980). A pollbook does not provide information to be used to account for ballots voted. It is nothing more than a list of the registered voters for each precinct. This argument was not heretofore raised before the Circuit Court or even before this Court. There is simply no evidence in the record or before this Honorable Court to support these arguments and the arguments do not even make sense. A poll book is nothing more than a list printed from the official record of registered voters for each precinct. Miss. Code Ann. 23-15-165. If a voter does not appear in the pollbook for
2 The record on this appeal consists primarily of the pleadings and a hearing in which no evidence was introduced or testimony taken only argument of counsel and the Courts ruling.
Resp Motion Reconsider Parker 3 the precinct in which he claims to reside, then the voter is still entitled to vote by affidavit ballot. See Miss. Code Anno. 23-15-573. In fact, contrary to the argument advanced by Petitioner pollbooks are not used to conduct a tally because it specifically does not include some voters who voted by affidavit because their names did not appear on the voters registration record or pollbook for that precinct. Pollbooks are specifically identified in the elections laws. See 23-15-127. Preparation, use and revision of primary election pollbooks; 23-15-133. Procedure for forming subprecincts and making subprecinct pollbooks; 23-15-545. Entries in pollbook; 23-15-573. Certain persons not to vote except by affidavit; form of affidavit; 23-15-541. Hours polls to be open; designation and duties of initialing manager and alternate initialing manager; curbside voting authorized for certain individuals; procedure; 23-15-639. Examination of absentee ballots at close of polls; counting of ballots. Pollbooks are specifically NOT identified in 23-15-911 and are not included in the sealed ballot boxes. However, a tally is specifically required by 23-15-591 and a duplicate tally certification is sealed in the ballot boxes: When the votes have been completely and correctly counted and tallied by the managers they shall publicly proclaim the result of the election at their box and shall certify in duplicate a statement of the said result, said certificate to be signed by the managers and clerks, one (1) of the certificates to be inclosed in the ballot box, and the other to be delivered to and to be kept by one (1) of the managers and to be inspected at any time by any voter who so requests. When the count of the votes and the tally thereof have been completed, the managers shall lock and seal the ballot box, having first placed therein all ballots voted, all spoiled ballots and all unused ballots. There shall be inclosed therein also one (1) of the duplicate receipts given by the manager who received the blank ballots received for that box; and the total ballots voted, and the spoiled ballots and the unused ballots must correspond in total with the said duplicate receipt or else the failure thereof must be perfectly accounted for by a written statement, under oath of the managers, which statement must be inclosed in the ballot box. There shall be also inclosed
Resp Motion Reconsider Parker 4 in said box the tally list, the receipt booklet containing the signed names of the voters who voted; and the number of ballots voted must correspond with the number of names signed in said receipt booklet.
The tally list is clearly different from a pollbook. A pollbook is not included in ballot box and is not within the scope of 23-15-911 despite whatever twists of words the Petitioner chooses to belatedly make. III. Constitutional implications Petitioners assert that constitutional implications arise from the issue of voters voting in the Democratic primary, then crossing over and voting in the Republican primary, therefore the entire Court should review the matter. The problem is such has nothing to do with the date of birth of every voter in Harrison County, whether they voted or not, which is really the only in issue on this appeal. Petitioner can still determine if any voter voted in Democratic primary then voted in the Republican primary from an examination of the pollbooks without every voters date of birth whether they voted or not. The Petitioner may still challenge those votes. The Court correctly ruled on the issue and Petitioner has offered nothing new to support its position. There are no constitutional implications because there is a procedure to review the pollbooks and challenge such votes if necessary. Miss. Code Ann. 23-15-571 or 23-15-575 III. ORIGINALS OR COPIES Petitioner has been offered to and has now inspected the originals of the Harrison County pollbooks 3 and NOT copies. Petitioner has paid the actual cost of redacting the personal information from the originals. There is a procedure to follow if
3 With only the date of birth redacted.
Resp Motion Reconsider Parker 5 he disagrees with the determination of actual cost for said records. This Court did address such in its Order: Access to information contained in poll books is controlled by Mississippi Code section 23-15-165 and the Mississippi Public Records Act referenced therein. There is a procedure to address such and it is a preference matter. See Miss. Code Anno. 25-61-13. Proceedings to compel public access to records; procedure; remedies. This argument has nothing to do with the mandamus requested against the Circuit Clerk of Harrison County, Mississippi and what other counties are doing or not doing is not within the scope of this Petition. IV. UNINTENDED CONSEQUENCES Petitioner argument herein just does not make sense as this Honorable Courts Order did nothing more than follow the statutes as adopted by the Mississippi Legislature. Plain and simple. The only information in issue here is the personal information of every registered voter in Harrison County whether they voted or not, whether Democrat or Republican. In the Harrison County the only redaction to the original pollbooks was the voters dates of birth. Petitioner repeatedly ignores this issue. Instead trying to create anxiety or perturbation where none exist. The county executive committee is not an issue in this matter only the Petitioner and his many representatives across the State. V. VOTER REGISTRATION RECORDS Pollbooks are printed directly from the voter registration records and the voter registration records is the only source of the personal information required of voters in order to qualify to vote. 23-15-11. Qualifications, generally. For Petitioner to assert
Resp Motion Reconsider Parker 6 that pollbooks are not voter registration files is just plain silly and not credible. For Petitioner to assert that pollbooks are really tally lists 4 is even more silly and not credible. VI. THE SKY IS NOT FALLING
Petitioner repeatedly attempts to create hysteria by essentially asserting the sky is falling around the election laws of this State. As stated before when you sort through it, ALL the Petitioner has been denied access to is the date of birth and age information of each and every registered voter in Harrison County, Mississippi, whether they voted or not. Thats all nothing more nothing less. Petitioner asserts that he seeks proof that voters voted in the Democratic primary then cross over illegally and voted in the Republican primary. He needed to examine the original pollbooks to do. In Harrison County, the Petitioner got the original pollbooks 5 and, if such occurred in Harrison County then there is a procedure to challenge such votes. The date of birth or redaction thereof from the pollbooks does not and did not diminish such at all. It is only Petitioners stubbornness in not following the law which has caused him delay if at all. This Court did not adopt a loose interpretation of 23-15-165(6), and then in the next paragraph apply a very strict interpretation of Mississippi Code 23-15-911 as implied by Petitioner. The Court applied both 23-15-165(6) and 23-15-911, as very specifically written by the Mississippi Legislature, and applied them correctly. As stated
4 Petitioner asserted (p. 8) there is little room for dispute that these documents have become the tally list. Not only is this disputed its just plain wrong. 5 And would have gotten them much earlier if he simply complied with the law.
Resp Motion Reconsider Parker 7 previously there are good and logical reasons that the Mississippi Legislature 6
determined it necessary to provide this exemption and/or exclusion as it is a matter of common knowledge that dates of birth and age information may be used for the purpose of committing identity theft, which is a felony under Section 97-19-85. See Attorney Generals Opinion No. 2013-00077, 2013 WL 1720563 (Miss. A.G.) [It is a matter of common knowledge that social security numbers and birth dates are used for the purpose of committing identity theft, which is a felony under Section 97-19-85. (emphasis added)]. Miss. Code Anno. 23-15-165 was adopted in 2006. It is not part of the Mississippi Public Record Act of 1983, but this election law clearly adopts the Mississippi Public Records Act of 1983 with respect to social security numbers, telephone numbers and date of birth and age information contained in voter registration records and any person who request inspection or examination thereof. Does a voter have a right to expect the Circuit Clerk to protect their personal information from disclosure to persons beyond the control of the persons employed to handle elections? Miss. Code Anno. 23-15-165 was adopted to attempt to protect the voter who was required to give personal information as part of his voter registration. With all that has transpired in these particular primary elections 7 such is a serious concern for all voters, whose personal information is contained in the Poll Books. Protection of personal information is of vital importance in this day and age. The redaction of the date of birth and age information of the voters contained in the poll
6 Including Petitioner and his attorney, Mr. Watson. 7 Petitioner cannot possibly inspect the original pollbooks in all 82 counties himself, therefore must rely on his representatives and therein lies the difficulty. Petitioner cannot control all of his representatives or their actions, which is why protecting a voters' personal information is vitally important.
Resp Motion Reconsider Parker 8 books is not an impediment to challenging a cross over vote as prohibited by Miss. Code Ann. 23-15-575 pursuant to Miss. Code Ann. 23-15-571. VII. STATE-WIDE IMPORTANCE AND LONG TERM SIGNIFICANCE. This is a mandamus proceeding against the Circuit Clerk of Harrison County, Mississippi only and not against any other Circuit Clerk. Petitioner exaggerations of the issue should not be a basis for reconsideration. Petitioner should not be permitted to expand these proceedings by introducing matters not part of this record, including Exhibits A, B and C and his allegations about what other Circuit Clerks or Circuit Court Judges may have done or not done. These proceeding do not involve them and the only issue herein is whether mandamus should have been issued or not against the Circuit Clerk of Harrison County, Mississippi. The Circuit Court and this Honorable Court have answered that question, the Petitioner has now complied with the law, and obtain access to the original pollbooks in Harrison County with only the date of birth redacted therefrom. This matter should be at an end. WHEREFORE, PREMISES CONSIDERED, RESPONDENT, GAYLE PARKER, CIRCUIT CLERK OF HARRISON COUNTY, MISSISSIPPI files this her RESPONSE TO MOTION FOR RECONSIDERATION, HEARING AND CLARIFICATION and prays that said Motion be denied and that the Respondent be awarded costs and attorney fees in accordance with Miss. Code Ann. 11-55-5, et seq. Respectfully submitted this the 21 st day of July, 2014. GAYLE PARKER, CIRCUIT CLERK OF HARRISON COUNTY, MISSISSIPPI, RESPONDENT BY AND THROUGH HER ATTORNEYS
Resp Motion Reconsider Parker 9 BOYCE HOLLEMAN & ASSOCIATES BY: s/ Tim C. Holleman
CERTIFICATE OF SERVICE
I, Tim C. Holleman, do hereby certify that I have this caused to be filed via the MEC filing system a true and correct copy of the foregoing pleading, which transmitted a copy to all counsel of record. This, the 21st day of July, 2014.
s/Tim C. Holleman Tim C. Holleman
Tim C. Holleman (Ms Bar #2526) BOYCE HOLLEMAN & ASSOCIATES 1720 23 rd Ave./Boyce Holleman Blvd. Gulfport, MS 39501 Telephone: (228) 863-3142 Facsimile: (228) 863-9829 Email: tim@boyceholleman.com
P.O. BOX 998 GULFPORT, MS 39502 CIRCUIT COURT 865-4147 FAX 865-4009 VOTER REGISTRATION & MARRIAGE LICENSE 865-4005 FAX 865-4099 Gayle Parker CLERK OF CIRCUIT AND COUNTY COURTS HARRISON COUNTY .. . PO. BOX 235 BILOXI, MS 39533 PHONE 435-8258 FAX 435-8277 COUNTY COURT 865-4010 FAX 867-6523 PLEASE REPLY TO GULFPORT 07/19/2014 Mitchell H. Tyner, Sr., Esquire Michael Watson, Esquire Dear Mr. Tyner and Mr. Watson: This is to confirm that Mr. McDaniel's representatives were provided and finally began inspection ofthe original'poll books' of Harrison County with only the date of birth redacted. This is also to confirm they have completed review and inspection of the original'poll books' with only the date of birth redacted for both Republican and Democratic primaries. If there is any issue with identifying any voter as a result of similar names at the same address that Mr. McDaniel or his representatives believe the date of birth is important to their inquiry, please provide me with their voter I. D. number(s), and I will assist you in determining their ID without disclosing their personal information. Sincerely, Gayle Parker Harrison County Circuit Clerk E-Filed Document Jul 21 2014 09:14:22 2014-M-00967 Pages: 1 EXHIBIT "1" - PARKER Response to Motion for Reconsideration, etc.