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IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI
IN RE: CHRIS McDANIEL PETITIONER
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:
PETITIONER HAS COMPLETED EXAMINATION OF THE “POLL BOOKS” IN
Petitioner failed to advise this Honorable Court that his representatives had
commenced and completed examination of the “Poll Books”
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 County’s “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
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
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
and have nothing to do with mandamus against the Circuit Clerk
of Harrison County, Mississippi. These exhibits are improper and should be stricken.
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
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 Court’s 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.
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 voter’s “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
“ORIGINALS OR COPIES”
Petitioner has been offered to and has now inspected the “originals” of the
Harrison County pollbooks
and NOT copies. Petitioner has paid the actual cost of
redacting the personal information from the originals. There is a procedure to follow if
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.
Petitioner argument herein just does not make sense as this Honorable Court’s
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.
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”
is even more silly and not
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. That’s 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
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 Petitioner’s stubbornness in not following the law which has caused him delay if at
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
Petitioner asserted (p. 8) there is “little room for dispute that these documents have become the tally list”.
Not only is this disputed it’s just plain wrong.
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
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 General’s 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
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
Including Petitioner and his attorney, Mr. Watson.
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.
“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 Clerk’s 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
day of July, 2014.
GAYLE PARKER, CIRCUIT CLERK OF
HARRISON COUNTY, MISSISSIPPI,
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
Ave./Boyce Holleman Blvd.
Gulfport, MS 39501
Telephone: (228) 863-3142
Facsimile: (228) 863-9829
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