PETITIONERS REPLY TO RESPONDENT PARKERS RESPONSE TO PETITIONERS MOTION FOR RECONSIDERATION, HEARING AND CLARIFICATION
Petitioner, Chris McDaniel, hereby Replies to Respondents Response to Petitioners Motion For Reconsideration, Hearing and Clarification, and in support thereof Petitioner would show the Court the following:
I. Status of Petitioners Examination of the Poll Books in Harrison County
Regardless of where Petitioner stands with his examination of election materials in Harrison County, this Courts J uly 17, 2014 Order denying Petitioners Emergency Petition for Writ of Mandamus has far reaching effects. Petitioner has many other Petitions for Writ of Mandamus filed in counties across Mississippi. Immediately following this Courts lead, J udge Robert Krebs amended his J uly 15, 2014 Order granting Petitioners Writ of Mandamus in J ackson County. J udge Krebs previously ruled in Petitioners favor granting him full access to all poll books and other election materials, including access to birthdates when needed to distinguish between voters. Following this Courts Order, J udge Krebs stripped Petitioners ability to view birthdates when needed and allowed the Circuit Clerk to charge for the Clerks time to cover up the birthdates. Should this Court decide not to reconsider its J uly 17 th ruling, not only will this Petitioner be forced to pay thousands of
1 E-Filed Document Jul 23 2014 11:50:05 2014-M-00967 Pages: 10 dollars to fulfill his statutory (Miss. Code Ann. 23-15-911) and case law (Sartin v. Barlow, 196 Miss. 159, 16 So.2d 372 (1944), Lopez v. Holleman, 219 Miss. 822, 69 So.2d 903 (Miss. 1954) (in which poll books were manipulated), Waters v. Gnemi, 907 So.2d 307 (Miss. 2005), among many others) supported duty to act as a check in our states election system, but every candidate from here forward who doesnt have the money to pay for access to the these tally lists/poll books will be forced to accept defeat, possibly at the hands of fraud.
II. Exhibits A, B, and C
While Respondent is correct in that this action was initiated due to Petitioners Writ of Mandamus filed in Harrison County, the resulting Order from this Court has everything to do with Exhibits A, B, and C. Exhibit A fortifies the reason Petitioner needs to see original records (tally lists/poll books and others). Once an individual goes in to redact the birthdates, he/she could also manipulate other parts of the records, weakening or strengthening ones potential challenge. Exhibit B shows a real life example of the possible dire consequences for Petitioner and future candidates should this Court not reconsider its October 17, 2014 ruling. Exhibit C shows a decision made by a judge after hearing all of the arguments and logic supporting Petitioners right to a full examination of all election materials, including poll books. As mentioned above, J udge Krebs amended his order immediately following this Courts ruling regarding Petitioners Mandamus action in Harrison County.
2 III. Boundaries of Credibility
J ust as the term ballot box was more appropriately used in elections prior to electronic voting machines being introduced, so too was the term tally sheets as used in Mississippi Code 23-15-581, amongst others. A perfect example is found in the Blakeney v. Hawkins, 384 So. 2d 1035 (Miss. 1980), cited by the Respondent. In that challenged 1979 Smith County Board of Education election, the ballots were pulled from the ballot boxes and the candidates names were read aloud accordingly. Tally sheets were used to make marks each time a candidates name was called as the separate ballots were read aloud. So, a tally sheet was used to tally the votes and make sure the number of votes cast matched the number of voters. In the Blakeney case, the Warren Hill box was in question. Though there were only 66 ballots in that box, the voter registry had eighty-one (81) signatures and the tally sheets accumulated to seventy-eight (78) voters. Obviously, something was awry. What happened in the Warren Hill box in that 1979 election gives great support and credibility to Mississippi Code 23-15-545. There is a reason why the legislature instructed poll managers to have poll workers write the word VOTED in poll books next to the name of each elector as he/she voted. Perhaps it could have been deemed the Warren Hill Act. Had the poll workers been able to compare the tally of people who had the word VOTED next to his/her name, they would have had an easier time deciding which number (66, 81 or 78) had the most credibility. Once poll books are marked VOTED, they become part of the papers, documents, ballots, etc. which will show forth how the election was conducted and the integrity of the votes and the count thereof as contemplated by this Court in the Sartin v. Barlow case. 16 So.2d 372 at 375.
3 While Petitioner understands not every ballot counted will be one that came via a voter signing in and having VOTED marked next to his/her name, the vast majority of ballots cast will have been. Surely the best prima facie proof that an election was clean is when the number of accepted absentee ballots, affidavit ballots, military ballots, etc. added to the number of standard Election Day ballots cast equals the number of total votes reported. That begins when the number of ballots cast on the voting machine tape equals the number of signatures in the voter registry and the number of voters marked VOTED in the working paper poll books. In this sense, these working paper poll books are certainly to be considered tally lists. At a time when all votes were recorded on paper ballots, and all counting of those votes was done by hand, the tally sheets reflected a method of recording the number of votes. That number should have corresponded with the number of ballots, and it served as a cross- check of the number voters shown on the signature pages. The ballots, tally sheet, and the signature pages served a 3-part mechanism for assuring the accurate recording and reporting of election results. Now, where ballots are cast on voting machines, there are no paper ballots for these votes, and the number of votes is counted by the machine. The number of ballots and the number of votes are kept inside a voting machine and can only be seen by a print-out from the machine. In such setting, the counties have turned to a new form of tally list, a different method of cross-checking the numbers reported by the voting machine. That method is by handwritten notations in a working paper list of voters. That precinct managers now rely on these working papers as described here can be readily corroborated by testimony or affidavit.
4 In the manner that local election commissioners and circuit clerks now administer elections, the election records, like the one shown in Exhibit A are the tally list contemplated by Mississippi Code 23-15-591 to be included in the ballot box, and to be open to a candidates full examination under Mississippi Code 23-15-911. Lastly, Respondent again cited Mississippi Code 23-15-165, as she has numerous times in the course of this action. To maintain credibility before this court, Respondent should have addressed other portions of that section of code. However, not once has she referred to Mississippi Code 23-15-165(4)(d) which states: (4) The Secretary of State may, with the assistance of the advisory committee, adopt rules and regulations necessary to administer the Statewide Elections Management System. Such rules and regulations shall at least:
(d) Provide the registrar or his designee or other appropriate official, as the law may require, access to the system at all times, including the ability to download copies of the industry standard file, for all purposes related to their official duties, including, but not limited to, exclusive access for the purpose of printing of all local pollbooks;
A candidate fulfilling his/her statutory and case law supported role to act as a check to the integrity of the election process in Mississippi is an appropriate official, as the law may require. Though Petitioner could arguably have access to the entire SEMS system, hes only asking for access to the tally lists a/k/a poll books used by and viewed by thousands of poll workers across this state.
5 IV. Constitutional Implications
The dilution of votes is a very real possibility and a constitutional issue. Respondent is trying to hide the ball by saying that this is only about access to birthdates. The fact is, while birthdates are extremely important, as will be discussed later, this is more about a candidate having to fork out thousands of dollars to perform his/her statutory duty to act as a check in the election process in Mississippi. That also lends itself to the constitutional concern of vote dilution. For every illegal crossover vote a candidate uncovers in a Mississippi Code 23-15-911 full examination, another persons legal vote is fully restored and rightfully returned to the one man, one vote concept discussed in Reynolds v. Sims, 377 U.S. 533 (1964) and many other U.S. Supreme Court cases. To uncover illegal crossover votes, a candidate must compare the above-discussed tally lists/poll books. For instance, the only way to determine a crossover vote in the J une 24 runoff election is to compare the tally list/poll book from the Democrat primary on J une 3 rd
to the tally list/poll book from the Republican primary runoff on J une 24. However, under this Courts J uly 17, 2014 Order, unless that candidate has a considerable fortune at his/her disposal, that would become impossible because not only could he/she not afford to pay all 82 Circuit Clerks to provide them with a copy of these election records or to redact the birthdays from the originals, but he/she would have a near about impossible task on his/her hands to wait for the copies or redaction and then complete the full examination in the twelve-day window provided under Mississippi Code 23-15-911.
6 V. Unintended Consequences
Mississippi has 82 counties. Each county has multiple precincts. On every Election Day, thousands of poll workers (unelected private persons who, unlike a candidate, have not proved credentials before the Secretary of State or similar) have full access to voter birth dates shown on the above-discussed tally lists/poll books. Not only could other statutory role players (thousands of poll managers, thousands of poll workers, hundreds of party executive committee members, etc.) in the election process be barred from seeing unredacted information, based on this Courts J uly 17, 2014 Order, the ruling also raises other questions. If the candidate cannot see the unredacted poll books due to privacy concerns, should he/she be able to review absentee applications and affidavit ballots containing the same, similar, or more private information?
VI. More Than J ust a Birthdate
Petitioner is not simply being barred for date of birth, but in effect from seeing these election records at all without the aforementioned considerable fortune. Without access to these election records, a candidate has no way of proving illegal crossover votes. Without being able to prove illegal crossover votes, a candidate could lose an election by fraud alone. Surely this Court did not mean to hand down a possible sentencing of that magnitude. Even if the Respondent is successful in lulling this Court into believing this is simply about access to voters birthdates, Petitioner would argue that access to dates of birth are (or can be) extremely important for several reasons. By knowing a voters birthdate, a candidate can immediately prove whether or not a voter was of age when he/she cast his/her ballot. Additionally, birthdates can be used to detect illegal votes cast in the place of deceased
7 individuals, to search for voters registered in multiple jurisdictions, to distinguish between voters with the same name and address, to determine eligibility for absentee voting purposes, to identify individuals casting affidavit ballots and as a helpful indicator to compare handwriting samples.
VII. State-Wide Importance and Long Term Significance
As mentioned above, J udge Krebs amending his Order based on this Courts J uly 17, 2014 Order, provides a first glimpse at the far reaching and long term significance of this Courts order. Petitioner will not be repetitious of points already made, but the ability of a candidate do play his/her role in upholding the integrity of the elections process in Mississippi will be strongly undermined for years to come should this Court choose not to reconsider its previous ruling.
VIII. Conclusion
For all the reasons set forth herein, Petitioner requests the full Courts reconsideration of its J uly 17, 2014 Order in light of the questions raised herein. Petitioner further respectfully requests a Rule 33 conference and/or a Rule 34 oral argument to aid the Court in its consideration of this extremely important and far reaching election integrity issue. RESPECTFULLY SUBMITTED this 23 rd day of J uly, 2014.
CHRIS McDANIEL
By: s/Mitchell H. Tyner, Sr. Mitchell H. Tyner, Sr.
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Of counsel:
Mitchell H. Tyner, Sr. (MSB #8169) Tyner Law Firm P.A. 5750 I-55 North J ackson, Mississippi 39211 (601) 957-1113 Email: mtyner@tynerlawfirm.com
Steve C. Thornton (MSB #9216) P. O. Box 16465 J ackson, Mississippi 39236 (601) 982-0313 Email: mail@lawlives.com
Michael D. Watson, J r. (MSB #101220) Watson Legal, PLLC Post Office Box 964 Pascagoula, Mississippi 39568 Email: michael@watsonlegal.ms
Attorneys for Plaintiff Chris McDaniel
9 CERTIFICATE OF SERVICE
I, Mitchell H. Tyner, Sr., attorney for the petitioner Chris McDaniel, certify that I have this day filed the foregoing PETITIONERS REPLY TO RESPONDENT PARKERS RESPONSE TO PETITIONERS MOTION FOR RECONSIDERATION, HEARING AND CLARIFICATION with the Courts Mississippi Electronic Courts online filing system and served a true and correct copy of same upon the following persons via electronic mail addressed to: J udge Roger T. Clark Circuit Court of Harrison County Telephone: (228) 865-4165 Email: mhladner@co.harrison.ms.us