CASE NUMBER: 2014-M-00967



Petitioner, Chris McDaniel, hereby Replies to Respondent’s Response to Petitioner’s
Motion For Reconsideration, Hearing and Clarification, and in support thereof Petitioner
would show the Court the following:

I. Status of Petitioner’s Examination of the “Poll Books” in Harrison County

Regardless of where Petitioner stands with his examination of election materials in
Harrison County, this Court’s J uly 17, 2014 Order denying Petitioner’s 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 Court’s lead,
J udge Robert Krebs amended his J uly 15, 2014 Order granting Petitioner’s Writ of
Mandamus in J ackson County. J udge Krebs previously ruled in Petitioner’s 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 Court’s Order, J udge Krebs
stripped Petitioner’s ability to view birthdates when needed and allowed the Circuit Clerk to
charge for the Clerk’s time to cover up the birthdates. Should this Court decide not to
reconsider its J uly 17
ruling, not only will this Petitioner be forced to pay thousands of

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 state’s election
system, but every candidate from here forward who doesn’t 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

II. Exhibits “A”, “B”, and “C”

While Respondent is correct in that this action was initiated due to Petitioner’s 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 one’s 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 Petitioner’s right to a “full examination” of
all election materials, including poll books. As mentioned above, J udge Krebs amended his
order immediately following this Court’s ruling regarding Petitioner’s Mandamus action in
Harrison County.

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 candidate’s 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.

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.

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 candidate’s 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,
he’s 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.

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 person’s 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

to the tally list/poll book from the Republican primary runoff on J une 24. However, under
this Court’s 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 Clerk’s 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.

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 Court’s 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 voter’s 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

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 Court’s J uly 17,
2014 Order, provides a first glimpse at the far reaching and long term significance of this
Court’s 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 Court’s
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
day of J uly, 2014.


By: s/Mitchell H. Tyner, Sr.
Mitchell H. Tyner, Sr.


Of counsel:

Mitchell H. Tyner, Sr. (MSB #8169)
Tyner Law Firm P.A.
5750 I-55 North
J ackson, Mississippi 39211
(601) 957-1113

Steve C. Thornton (MSB #9216)
P. O. Box 16465
J ackson, Mississippi 39236
(601) 982-0313

Michael D. Watson, J r. (MSB #101220)
Watson Legal, PLLC
Post Office Box 964
Pascagoula, Mississippi 39568

Attorneys for Plaintiff Chris McDaniel


I, Mitchell H. Tyner, Sr., attorney for the petitioner Chris McDaniel, certify that I
have this day filed the foregoing PETITIONER’S REPLY TO RESPONDENT PARKER’S
CLARIFICATION with the Court’s 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

Timothy C. Holleman
Boyce Holleman & Associates
Telephone: (228) 863-3142

Harold E. Pizzetta, III
J ustin L. Matheny
Office of the Attorney General
Telephone (601) 359-3680

day of J uly, 2014.

s/Mitchell H. Tyner, Sr.
Mitchell H. Tyner, Sr.