IN THE CIRCUIT COURT OF LEFLORE COUNTY, MISSISSIPPI
STATE EXECUTIVE COMMITTEE PLAINTIFF
OF THE MISSISSIPPI REPUBLICAN PARTY
V. Civil No. 2008–0126-CICI
ELECTION COMMISSION OF LEFLORECOUNTY,
MISSISSIPPI; GAIL GRIGGS, POLL MANAGER,
SOUTHEAST GREENWOOD
PRECINCT, LEFLORE COUNTY,MISSISSIPPI DEFENDANTS
AMENDED PETITION FOR WRIT OF MANDAMUS
COMES NOW, Plaintiff State Executive Committee of the Mississippi Republican Party (“Plaintiff”) and files this Amended Petition seeking relief resulting from the failure of the Election Commission of Leflore County, Mississippi (“Defendant Election Commission”) and Gail Griggs, Poll Manager of the Southeast Greenwood Precinct of Leflore County (“Defendant Poll Manager” of the “Precinct,” and, collectively, the “Defendants”), to perform their duties in the conduct of elections. The Plaintiff would show the following:
1.On November 4, 2008, Defendant Election Commission and the Defendant Poll Manager conducted an election at the Precinct and failed to execute their non-discretionary, statutory duties as prescribed in the Mississippi Election Code, as detailed below.
2.As authorized by § 23-15-577, Mississippi Code of 1972, as amended, the Plaintiff had properly credentialed poll watchers for its candidates assigned to the Precinct on election day. As the Defendants prohibited Plaintiff’s poll watchers from having a suitable position to inspect the manner in which the election was held, the Plaintiff filed a Petition for Writ of Mandamus requesting relief in the form of a temporary restraining order.
3.Due to the unusual circumstances of the election day, it was not acted upon that day. However, the Plaintiff has learned of additional of failures of the Defendants to discharge their duties. This information has been made availablethrough additional witnesses and through a report issued by the Office of the Secretary of State of the State of Mississippi. Therefore, the Plaintiff now seeks a writ of mandamus from this Court which would bind the Defendants, and their successors in office, to properly execute their mandatory statutory duties in future elections.
4.The Defendants failed to comply with § 23-15-549, Mississippi Code of 1972, as amended, which governs the assistance of voters, and § 23-15-551, Mississippi Code of 1972, as amended, which prohibits unauthorized individuals from loitering in the polling location. Section 23-15-549 requires that “[a]ny voter who declares to the managers of the election that he requires assistance to vote by reason of blindness, disability or inability to read or write may be given assistance by a person of the voter’s choice other than the voter’s employer, or agent of that employer, or officer or agent of the voter’s union.” Section 23-15-551, states that “[a] person shall not be allowed in the room … except the officers of the election, and those appointed to assist them to assist therein” and those authorized poll watchers with proper credentials.
5.In violation of these statutes, Defendants allowed voters at the Precinct who did not request assistance, nor declare one of the statutory reasons requiring assistance, to have individuals accompany them to the voting machines and dictate to them how to vote. Voters attempting to cast their ballots in privacy were also instructed how to vote by individuals who were allowed to roam the polling location and stand next to voting machines with the voters. Voters were also allowed to communicate on their cellular telephones while voting by affidavit ballot.
6.Throughout the day, several individuals brought groups of votersinto the polling location and voted with them. These individuals also approached prospective voters in the polling location, offering to vote with the voters. The Defendants allowed those individuals who had no statutory authorization to patrol the polling location and interact with and vote with the voters. These individuals did not “assist” the voters in casting the voters preferences for their candidates. To the contrary, those individuals instructed votersto vote for “the first one” on each selection on the ballot, andto “vote for that one” and “vote for him.” Some individuals merely pointed to the candidate that they instructed the voter to vote for, with no communication from the voter. Voters were also told to vote for a candidate because they were a Democrat, including identifying Ronnie Musgrove as a Democrat, although party affiliation is not listed for special elections on the ballot.
7.One unauthorized individual was stationed at a voting machine the furthest from the Plaintiff’s poll watchers. He instructed voters on how to vote for much of the day.
8.The Defendants also failed to uphold their duty under § 23-15-577, Mississippi Code of 1972, as amended, requiring them to permit Plaintiff’s statutorily authorized poll watchers to have a suitable position from which they could carefully inspect the manner in which the election is held. Plaintiff’s poll watchers were assigned an area over thirty (30) feet from the poll books with no line of sight to the poll books. The Plaintiff’s poll watchers were also not allowed into the polling area in the morning to witness the poll workers’ activities in opening the polls.
9.Defendants allowed voters to remove ballots from the polling place in violation of § 23-15-533, Mississippi Code of 1972, as amended. Voters left the polling area with affidavit ballots and filled them out in adjacent rooms while talking on their cellular telephones.
10.Defendant Griggs and her bailiff were notified of each of these violations and took no action to enforce the laws which were violated.
11.Candidates in the recent general election and future elections are nominees of the Plaintiff’s organization, therefore, Plaintiff has an interest separate from and in excess of that of the general public. The Defendants’ failure to execute their duties at the Precinct’s polling location has allowed individuals to unlawfully assist the candidates of the Democratic party to the detriment of candidates of the Plaintiff’s party. Therefore, the Plaintiff and its candidates have and will continue to suffer distinct injury if the Defendants’ actions continue. Furthermore, there is no other adequate remedy at law.
12.The claims presented by this Amended Petition are not moot as the question of mootness is not applied to matters of public interest. J.E.W. v. T.G.S., 935 So.2d 954, 961 (Miss. 2006); Strong v. Bostick, 420 So.2d 1356, 1359 (Miss. 1982); The public’s interest in lawfully conducted elections requires that the rule of law be declared and that the Defendant public officials observe the rule of law in their future conduct. Strong, 420 So.2d at 1359; Sartinv. Barlow, 16 So.2d 372, 376 (Miss. 1944). Although unlawful conduct is capable of repetition at every election, it may evade review, as it did at this election, because of the difficulty in conducting a hearing on the merits on short notice.
13.Therefore, pursuant to § 11-41-1, Mississippi Code of 1972, as amended, Plaintiff would respectfully request that this Court make a finding that Defendant Election Commission of Leflore County and Defendant Gail Griggs, Poll Manager of Southeast Greenwood Precinct of Leflore County, failed to perform their statutory duties prescribed under § 23-15-577, § 23-15-549, §23-15-551 and § 23-15-533, Mississippi Code of 1972, as amended. The Plaintiff would further request that this Court issue a writ of mandamus commanding the Defendants, and their successors in office, to execute their mandatory duties as prescribed under these statutes in all future elections. The Plaintiff asks that costs be assessed to Defendants and for such further relief as to which it may be entitled.
This the ____ day of December, 2008.
Respectfully submitted,
STATE EXECUTIVE COMMITTEE OF THE MISSISSIPPI REPUBLICAN PARTY
______
Michael B. Wallace (MB # 6904)
Spence Flatgard (MB # 99381)
Michael B. Wallace, Esq.
Wise Carter Child & Caraway
Post Office Box 651 (39205)
401 East Capitol Street, Suite 600
Jackson, Mississippi39205
(601) 968-5534 (Telephone)
(601) 944-7738 (Facsimile)
Spence Flatgard
Spence Flatgard, Legal Counsel, PLLC
210 East Capitol Street, Suite 1262
Jackson, Mississippi39201
601-672-5917 (telephone)
601-948-1506 (facsimile)
1