                          IN THE SUPREME COURT OF MISSISSIPPI

                                     NO. 2003-EC-02440-SCT


EDWARD KIRK SMITH

v.

RICHARD HOLLINS


                                 ON MOTIONS FOR REHEARING


DATE OF JUDGMENT:                            10/27/2003
TRIAL JUDGE:                                 HON. DENISE OWENS
COURT FROM WHICH APPEALED:                   WILKINSON COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                     ROBERT C. LATHAM
                                             JOHN R. JUNKIN
                                             DAVID S. CRAWFORD
ATTORNEY FOR APPELLEE:                       CARROLL RHODES
NATURE OF THE CASE:                          CIVIL - ELECTION CONTEST
DISPOSITION:                                 REVERSED AND RENDERED - 06/23/2005
MOTION FOR REHEARING FILED:                  12/22/2004 AND 01/19/2005
MANDATE ISSUED:


        EN BANC.

        WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.     The motion for rehearing filed by Edward Kirk Smith is granted, and the motion for

rehearing filed by Richard Hollins is denied.    The prior opinion is withdrawn, and these

opinions are substituted therefor.

¶2.     A Democratic Party primary election was held on August 5, 2003, in Wilkinson County

for the District 2 Supervisor contest between Richard Hollins and Edward Kirk Smith.   District
2 was created as a result of a redistricting plan approved by the United States Department of

Justice, and the primary was the first election held in the new district.         District 2 has two

precincts: the Fort Adams precinct and the Woodville District 2 precinct.           When the tallying

was completed, the two contenders each had 406 votes.             The Wilkinson County Democratic

Party Executive Committee did not certify a winner.          Instead, a second primary election was

held on August 26, 2003.        The results of the second primary election were 499 votes for

Hollins and 510 votes for Smith.

¶3.     Hollins filed a petition for judicial review of the election in the Circuit Court of

Wilkinson County alleging numerous voting irregularities, including, inter alia, the following:

poll managers and workers at both District 2 precincts had not attended training as required by

statute; one poll worker called voters who had not voted in the primary and asked them to vote

for Smith in the second primary; during the second primary, several persons were denied the

right to vote by a "bailiff" because they had not reached the age of 18, when the statute provides

that if a person will turn 18 prior to the general election, he or she may vote in the primaries;

during the second primary, one of Smith's poll watchers was appointed to be a poll worker at

the Woodville District 2 precinct; several ballots cast in favor of Hollins were not counted;

and several regular ballots and absentee ballots were improperly rejected.

¶4.     After Smith filed a response and cross claim alleging fraud against Hollins, this Court

ordered that a special tribunal hold an evidentiary hearing.           Both parties called numerous

witnesses, including voters, poll workers and the circuit clerk.             The individual challenged

ballots were entered into evidence.




                                                   2
¶5.       The tribunal found that there was no proof of electoral fraud, that any nonconforming

votes were void and that the election would be determined by the legal votes cast under Rizzo v.

Bizzell, 530 So. 2d 121, 128 (Miss. 1988). After examining the challenged ballots and hearing

testimony, the tribunal found that six additional votes should be added for Smith and twenty

additional votes should be added for Hollins, making the final tally of 516 votes for Smith and

519 votes for Hollins. Hollins was declared the winner of the second primary

for the office of Supervisor, Wilkinson County, District 2. Both parties have appealed.

                                      STANDARD OF REVIEW

¶6.            We will not interfere with or disturb a chancellor's findings of fact unless those

findings are manifestly wrong, clearly erroneous, or an erroneous legal standard was applied.

G. B. “Boots” Smith Corp. v. Cobb, 860 So. 2d 774, 776-77 (Miss. 2003). For questions of

law, we employ a de novo standard of review and will only reverse for an erroneous

interpretation or application of the law. In re Municipal Boundaries of City of Southaven,

864 So. 2d 912, 917 (Miss. 2003) (citing T.T.W. v. C.C., 839 So. 2d 501, 503-04 (Miss.

2003)).

                                            DISCUSSION

                    I.     THE VOTE.

¶7.       The principal dispute in this election contest is over absentee ballots that were not

certified as part of the final tally of the second primary election.            Before addressing the

absentee votes we will review challenges to three “regular ballots” which were included in the

final tally:

REGULAR BALLOTS

                                                   3
Exhibit #25                     This regular ballot was cast for Smith.

                                The Tribunal found that, even though neither the manager or the
                                assistant manager initialed the back of the ballot, they should be
                                accepted. We agree. “[M]ere technical irregularities will not
                                vitiate the validity of an election where there is no evidence of
                                fraud or intentional wrong.” Campbell v. Whittington, 733
                                So. 2d 820, 826 (Miss. 1994) (citing Wilbourn v. Hobson, 608
                                So. 2d 1187, 1192 (Miss. 1992)).

                                This vote is counted in favor of Smith. However, because this
                                ballot was included in the box and therefore counted, the vote will
                                not affect the final tally.

Exhibit #26                     This regular ballot was cast for Smith.

                                The Tribunal found that, even though neither the manager or the
                                assistant manager initialed the back of the ballot, it should be
                                accepted. We agree. See Campbell.

                                This vote is counted in favor of Smith. However, because this
                                ballot was included in the box and therefore counted, the vote will
                                not affect the final tally.

Exhibit #27                     This regular ballot was cast for Smith.

                                The Tribunal found that, even though neither the manager or the
                                assistant manager initialed the back of the ballot, it should be
                                accepted. We agree. See Campbell.

                                This vote is counted in favor of Smith. However, because this
                                ballot was included in the box and therefore counted, the vote will
                                not affect the final tally.

¶8.     Finding that we agree with the Special Tribunal that the final tally from the second

primary election is correct, we now address the disputed absentee ballots which were not part

of the final tally – 499 votes for Hollins and 510 votes for Smith. To these totals we will add

votes from the disputed absentee ballots that we find were legally cast, as follows:

ABSENTEE BALLOTS INCLUDED IN THE RECORD


                                                    4
Bell, Preston          Bell voted for Hollins in Woodville #2. “Challenge” is written on
                       the envelope for the absentee ballot application.

                       Finding that Bell lived in Woodville #2, the Tribunal accepted this
                       ballot. Because Smith failed to prove by a preponderance of the
                       evidence that Bell did not live in Woodville #2, we agree.

                       This vote is counted in favor of Hollins.

Bethley, Cleveland     Bethley voted for Hollins in Woodville #2.               “Challenge -
                       Redistrict” is written on the envelope for the ballot.

                       Finding that Bethley lived in Woodville #2, the Tribunal accepted
                       this ballot. Because Smith failed to prove by a preponderance of
                       the evidence that Bethley did not live in Woodville #2, we agree.

                       This vote is counted in favor of Hollins.

Boyd, Benjamin         Boyd voted for Smith in Woodville #2. “Challenge address” is
                       written on the envelope for the absentee ballot application.

                       Finding that Boyd lived in Woodville #2, the Tribunal accepted
                       this ballot. Because Hollins failed to prove by a preponderance
                       of the evidence that Boyd did not live in Woodville #2, we agree.

                       This vote is counted in favor of Smith.

Dickerson, Charlotte   Dickerson voted for Hollins in Fort Adams. “Challenged - no
                       name on application” is written on the envelope for the absentee
                       ballot application. There is no signature of an attesting witness.

                       The Tribunal accepted Dickerson’s ballot inasmuch as she is
                       disabled and her grandson assisted her. We disagree. Although
                       a disabled person’s signature on the ballot envelope is not
                       required to be sworn, someone is required to sign their name as
                       an attesting witness. In the absence of an attesting witness, this
                       ballot cannot be counted.     See Miss. Code Ann. § 23-15-
                       631(1)(c) (Rev. 2001)

Ferguson, Annie        Ferguson voted for Hollins in Fort Adams. “Challenge - no name
                       on application” is written on the envelope for the ballot.
                       Ferguson’s name is on the absentee ballot application, the



                                          5
                        application is initialed and the circuit clerk seal is affixed thereto.


                        The Tribunal accepted this ballot. We agree. Miss. Code Ann. §
                        23-15-627 (Rev. 2001) requires only that the application “have
                        the seal of the circuit or municipal clerk affixed to it and be
                        initialed by the registrar or his deputy.”

                        This vote is counted in favor of Hollins.

Fosselman, Jacqueline   Fosselman voted for Hollins in Woodville #2.                “Challenge
                        address” is written on the envelope for the ballot.

                        Finding that Fosselman was registered under her maiden name in
                        Woodville #2, the Tribunal accepted her ballot. Because Smith
                        failed to prove by a preponderance of the evidence that
                        Fosselman was not a resident of Woodville #2, we agree.

                        This vote is counted in favor of Hollins.

Fountain, Samuel        Fountain voted for Hollins in Woodville #2. “Challenge
                        Redistrict” is written on the envelope for the absentee ballot
                        application.

                        Finding that Fountain lived in Woodville #2, the Tribunal
                        accepted this ballot.   Because Smith failed to prove by a
                        preponderance of the evidence that Fountain did not live in
                        Woodville #2, we agree.

                        This vote is counted in favor of Hollins.

Fountain, Timothy       Fountain voted for Hollins in Woodville #2. “Clerk’s signature”
                        is written on the envelope for the absentee ballot application. The
                        signature of Mon Cree Allen, the Wilkinson County Circuit
                        Clerk, is on the application.

                        The Tribunal accepted this ballot. Because Smith failed to prove
                        by a preponderance of the evidence that the signature was not that
                        of Mon Cree Allen, we agree.

                        This vote is counted in favor of Hollins.

Gaines, Carrie          Gaines voted for Hollins in Woodville #2. “Reject - name not
                        across the flap” is written on the envelope for the absentee ballot

                                           6
                           application.   Gaines’ signature is on the back of the ballot
                           envelope. However, the official title and the address of the
                           attesting witness are not filled out on the back of the envelope,
                           and Gaines’ signature is not sworn.

                           The Tribunal rejected this ballot. We agree. See Miss. Code
                           Ann. § 23-15-635 (Rev. 2001); see also Campbell, 733 So. 2d
                           at 826 (“A person voting by absentee ballot must sign the
                           affidavit on the ballot envelope.”) (Emphasis added).

Gaines, Flora       Gaines voted for Hollins in Woodville #2.          “Challenge” is written on the
                    envelope for the absentee ballot application.

                           The Tribunal rejected this ballot. We agree. Gaines’ signature on
                           the back of the ballot envelope is not sworn. See Miss. Code
                           Ann. § 23-15-635 (Rev. 2001); see also Campbell, 733 So. 2d
                           at 826 (“A person voting by absentee ballot must sign the
                           affidavit on the ballot envelope.” (Emphasis added).

Hollins, Beatrice          Beatrice voted for Hollins in Woodville #2. “Challenge address”
                           is written on the envelope for the absentee ballot application.

                           Finding that Beatrice lived in Woodville #2, the Tribunal accepted
                           this ballot. Because Smith failed to prove by a preponderance of
                           the evidence that Beatrice did not live in Woodville #2, we agree.

                           This vote is counted in favor of Hollins.

Jackson, Edna       Jackson voted for Smith in Fort Adams. “No” is written on the envelope
                    for the ballot.

                           The Tribunal invalidated Jackson’s ballot because Jackson was a
                           convicted felon.      Because Smith failed to prove by a
                           preponderance of the evidence that Jackson was eligible to vote,
                           we agree. See Miss. Code Ann. § 23-15-19 (Rev. 2001).

James, Ronekia             James voted for Smith in Woodville #2.               “Challenge clerk
                           signature” is written on the envelope for the absentee ballot
                           application. Mon Cree Smith’s signature is on the application.

                           The Tribunal accepted this ballot.    Because Hollins failed to
                           prove by a preponderance of the evidence that the application was
                           improperly attested, we agree.


                                               7
                              This vote is counted in favor of Smith.

Jarvis, Richard               Jarvis voted for Hollins in Woodville #2. “Challenge signature”
                              is written on the envelope for the absentee ballot application

                              The Tribunal accepted this ballot. We agree. Even though
                              Jarvis’s signature appears to be the writing of the person who
                              filled out and attested the application, Smith failed to prove by a
                              preponderance of the evidence that the signature was not that of
                              Jarvis.

                              This vote is counted in favor of Hollins.

Johnson, Stacy                Johnson voted for Hollins in Fort Adams. “Name not in book -
                              challenged by Richard Hollins - good registered” is written on the
                              envelope for the absentee ballot application.

                              At the hearing, Smith introduced a certified copy of a voting
                              record from Baton Rouge, Louisiana, which showed that a “Stacy
                              Johnson” voted in Baton Rouge three weeks prior to the
                              Mississippi election. Johnson admitted that the birth date and the
                              birth place of the Louisiana Stacy Johnson matched her own birth
                              date and birth place. Johnson worked in Baton Rouge but she
                              denied that she had voted there. Johnson also admitted that the
                              address on the voting record from Louisiana was that of an aunt
                              with whom she occasionally stayed while she was working in
                              Louisiana. Johnson testified that, while she worked in Louisiana
                              during the week, she returned to Wilkinson County on the
                              weekends.

                              The Tribunal accepted Johnson’s ballot. We disagree. We find
                              that Smith’s challenge to Johnson’s ballot was proven by a
                              preponderance of the evidence. The exact same names, dates of
                              birth, and birth places on official Mississippi and Louisiana
                              voting records and her admission that she maintained addresses
                              in both Mississippi and Louisiana belie Johnson’s testimony that
                              she had not voted in Louisiana. We find that evidence exists for
                              a court of proper jurisdiction to find that Johnson has violated
                              Miss. Code Ann. § 23-15-17(1) (Rev. 2001).1


        1
         Miss. Code Ann. § 23-15-17(1) (Rev. 2001) provides in part as follows:

        (1)       Any person who shall knowingly procure his or any other person’s

                                                 8
Jones, Robert Lawrence       Jones voted for Smith in Fort Adams.        “Name not on book” is
                             written on the envelope for the ballot.

                             Mon Cree Adams testified that Jones’s name was not included in
                             the poll book in the Fort Adams precinct. The Tribunal rejected
                             Jones’ ballot, and we agree.

McCants, Wade                McCants voted for Smith in Woodville #2. “No” is written on the
                             envelope for the ballot.

                             The Tribunal found that McCants lived in Woodville #2 and that
                             the ballot should be accepted. We agree.

                             This vote is counted in favor of Smith.

McDonald, David              McDonald voted for Smith in Fort Adams. “Wrong district - no”
                             is written on the envelope for the ballot.

                             The Tribunal found that, even though McDonald lived in
                             Woodville #2, his vote cast in Fort Adams should be accepted.
                             We agree.

                             This vote is counted in favor of Smith.

Mealey, Inez                 Mealey voted for Hollins in Woodville #2.              “Challenge -
                             signature - flap” is written on the envelope for the absentee ballot
                             application. The envelope is signed with an “X.”

                             The Tribunal found that Mealey was assisted by her son and that
                             her application for an absentee ballot and the ballot were properly
                             executed by an attesting witness. We agree.

                             This vote is counted in favor of Hollins.




               registration as a qualified elector when the person whose registration is
               being procured is not entitled to be registered, or when the person whose
               registration is being procured is being registered under a false name, or
               when the person whose registration is being procured is being registered
               as a qualified elector in any other voting precinct than that in which he
               resides, shall be guilty of a felony and, upon conviction, be fined not
               more than Five Thousand Dollars ($5,000.00) or imprisoned not more
               than five (5) years, or both. . . .

                                                9
Miles, Trevor            Miles voted for Smith in Fort Adams.        “No” is written on the
                         envelope for the ballot.

                         Finding that Miles lived in Fort Adams, the Tribunal accepted his
                         ballot. Because Hollins failed to prove by a preponderance of the
                         evidence that Miles did not live in Fort Adams, we agree.

                         This vote is counted in favor of Smith.

Palmer, Bessie           Palmer voted for Hollins in Woodville #2.     “Voter challenge
                         signature” is written on the envelope for the absentee ballot
                         application.

                         The Tribunal accepted this ballot. We agree. Even though
                         Palmer’s signature appears to be the writing of the person who
                         filled out and attested the application, Smith failed to prove by a
                         preponderance of the evidence that the signature was not that of
                         Palmer.

                         This vote is counted in favor of Hollins.

Payne, Reginald          Payne voted for Hollins in Woodville #2. “Challenge” is written
                         on the envelope for the absentee ballot application.

                         Finding that Payne lived in Woodville #2, the Tribunal accepted
                         this ballot. Because Smith failed to prove by a preponderance of
                         the evidence that Payne did not live in Woodville #2, we agree.

                         This vote is counted in favor of Hollins.

Stewart, Irene    Stewart voted for Hollins in Fort Adams. “Challenged - no name on
                  application” is written on the envelope for the absentee ballot
                  application. Stewart’s name is on the application, but it is not sworn.

                         Stewart’s absentee ballot was invalidated by the Tribunal because
                         it was not sworn. We agree. Miss. Code Ann. § 23-15-631 (Rev.
                         2001) requires that the signature on an application for an
                         absentee ballot must be sworn and attested.

Stutzman, Ozene          Stutzman voted for Smith in Fort Adams. “Wrong district - no”
                         is written on the envelope for the ballot.

                         The Tribunal found that Stutzman lived in the Woodville #4
                         district and invalidated her vote. Because Smith failed to prove

                                            10
                                by a preponderance of the evidence that Stutzman lived in Fort
                                Adams, we agree.

Wall, Betty                     Wall voted for Smith in Fort Adams.          “No” is written on the
                                envelope for the ballot.

                                The Tribunal invalidated Wall’s vote because Wall’s name did not
                                appear on the Master List. Because Hollins failed to prove by a
                                preponderance of the evidence that Wall’s name was on the
                                Master List, we agree.

Wells, Roscoe                   Wells voted for Hollins in Woodville #2.                “Challenge” was
                                written on the envelope for the absentee ballot application.

                                Finding that Wells lived in Woodville #2, the Tribunal accepted
                                this ballot. Because Smith failed to prove by a preponderance of
                                the evidence that Wells did not live in Woodville #2, we agree.

                                This vote is counted in favor of Hollins.




ABSENTEE BALLOTS NOT INCLUDED IN THE RECORD

¶9.     The Tribunal made the following findings of fact pertaining to eight voters whose

absentee ballots are not included in the record:

                        The parties stipulated that some voters whose names did
                not appear in the precin[c]t poll book were registered to vote in
                time for the election and their names appeared in the Master Roll
                kept by the Circuit Clerk. These are the affected voters: Twanna
                Davis, Kerry Veals, Jeremy Williams, Yvetta Davis Alexander,
                Ophelia Hull Lewis, Leonard Credit, Sr., Laverne Myles and
                Robert Sturgis. After a review of the evidence, the Court accepts
                that the following are in Woodville, No. 2: Twanna Davis, Kerry
                Veals, Yvetta Davis Alexander, and Leonard Credit, Sr. The latter
                voted for Mr. Smith. The rest voted for Mr. Hollins.

¶10.    Therefore, according to the Tribunal, the only challenge to these eight votes was

whether or not the voters were included in the master poll book.            Our interpretation of the

findings of fact is that the Tribunal validated four of the votes (Davis, Veals, Davis-Alexander

                                                   11
and Credit) and invalidated four of the votes (Williams, Lewis, Myles and Sturgis).            This

interpretation is borne out by the fact that the Tribunal counted the votes of Davis, Veals,

Davis-Alexander and Credit and did not count the votes of Williams, Lewis, Myles and Sturgis

in its final tally.

¶11.      Hollins claims that Williams, Lewis, Myles and Sturgis voted for him and their ballots

should be counted.        However, as mentioned previously, these ballots are not included in the

record, so we cannot rule on the accuracy of the Tribunal’s findings.           Furthermore, if the

Tribunal’s failure to count these four votes was error, Hollins should have filed a motion to

amend the Tribunal’s findings of fact. This he did not do.

¶12.      Discussing each of these eight voters, we find as follows:

Alexander-Davis, Yvetta -         Alexander-Davis’ ballot is not included in the record. The
                                  Tribunal’s findings of fact show that she voted for Hollins.

                                  Alexander-Davis was registered in Woodville #2 under the name
                                  of Yvetta Alexander.    Because Smith failed to prove by a
                                  preponderance of the evidence that Alexander-Davis was not a
                                  resident of Woodville #2 or that Alexander-Davis voted for
                                  Smith, we agree.

                                  Smith also challenges Alexander-Davis’ ballot on the basis that
                                  she failed to register to vote within thirty days of the election.
                                  See Miss. Code Ann. § 23-15-11 (Rev. 2001). Alexander-Davis
                                  testified that she registered to vote approximately three weeks
                                  prior to the first primary, but she did register more than thirty
                                  days prior to the second primary. Smith cites no law which holds
                                  that a person who does not vote in a first primary cannot vote in
                                  a second primary.

                                  This vote is counted in favor of Hollins.

Credit, Leonard, Sr.              Credit’s ballot is not included in the record. The Tribunal
                                  accepted his vote in favor of Smith. We disagree because Credit
                                  failed to register more than 30 days prior to the election (Credit


                                                     12
                  registered on August 8, and the election was held on August 26).
                  See Miss. Code Ann. § 23-15-11 (Rev. 2001).

Davis, Tawanna    Davis’ ballot is not included in the record.          The Tribunal’s
                  findings of fact show that Davis voted for Hollins.

                  The Tribunal found that Davis resided in Woodville #2. Because
                  Smith failed to prove by a preponderance of the evidence that
                  Davis did not live in Woodville #2 or that Davis voted for Smith,
                  we agree.

                  This vote is counted in favor of Hollins.

Lewis, Ophelia    Lewis’ ballot is not included in the record. The Tribunal made no
                  findings of fact concerning Lewis’ ballot, and her vote was not
                  included in the Tribunal’s final tally.

                  Hollins contends that her purported vote in favor of Hollins
                  should be counted; however, Hollins neither introduced her ballot
                  into evidence nor filed a motion to correct the record. We find
                  that Hollins has failed to prove by a preponderance of the
                  evidence that Lewis’ absentee ballot was valid and should have
                  been counted.

Myles, Laverne    Myles’ ballot is not included in the record. The Tribunal made no
                  findings of fact concerning Myles’ ballot. Hollins contends that
                  her purported vote in favor of Hollins should be counted;
                  however, Hollins neither introduced her ballot into evidence nor
                  filed a motion to correct the record. We find that Hollins has
                  failed to prove by a preponderance of the evidence that Myles’
                  absentee ballot was valid and should have been counted.

Sturgis, Robert   Sturgis’ ballot is not included in the record. The Tribunal made
                  no findings of fact concerning Sturgis’ ballot. Hollins contends
                  that his purported vote in favor of Hollins should be counted;
                  however, Hollins neither introduced his ballot into evidence nor
                  filed a motion to correct the record. We find that Hollins has
                  failed to prove by a preponderance of the evidence that Sturgis’
                  absentee ballot was valid and should have been counted.

Veals, Kerry      Veals’ ballot is not included in the record.          The Tribunal’s
                  findings of fact show that Veals voted for Hollins.



                                     13
                                After Veals testified that he resided in Woodville #2, the Tribunal
                                found that he resided in Woodville #2. Because Smith failed to
                                prove by a preponderance of the evidence that Veals did not live
                                in Woodville #2 or that he voted for Smith, we agree.

                                This vote is counted in favor of Hollins.

Williams, Jeremy                Williams’ ballot is not included in the record. The Tribunal made
                                no findings of fact concerning Williams’ ballot.           Hollins
                                contends that his purported vote in favor of Hollins should be
                                counted; however, Hollins neither introduced his ballot into
                                evidence nor filed a motion to correct the record. We find that
                                Hollins failed to prove by a preponderance of the evidence that
                                Williams’ ballot was valid and should have been counted.

¶13.      The vote tally immediately after the second primary and prior to the convening of the

Tribunal was 499 for Hollins and 510 for Smith.            After a careful review of the record on

appeal, we find as follows:

          1.     Valid    absentee votes for Hollins: Alexander-Davis, Bell, Bethley, Davis,

Ferguson, Fusselman, Fountain, S., Fountain, T., Hollins, B., Jarvis, Healey, Palmer, Payne,

Veals and Wells. (15 total).

          2.     Invalid absentee votes for Hollins:    Dickerson, Gaines, C., Gaines, F., Johnson,

and Stewart. (5 total).

          3.     Valid absentee votes for Smith: Boyd, James, McCants, McDonald and Miles.

(5 total).

          4.     Invalid absentee votes for Smith: Credit, Jackson, Jones, Stutzman, and Wall.

(5 total).

          5.     Absentee ballots otherwise invalid: Lewis, Myles, Sturgis and Williams.         (4

total.)



                                                   14
        6.        The final corrected tally is therefore 514 (499 + 15) votes for Hollins and 515

(510 + 5) votes for Smith.

                  II.      WHETHER A SPECIAL ELECTION IS REQUIRED.

¶14.    Miss. Code Ann. § 23-15-937 (Rev. 2001), which governs special elections for

contested primary elections, provides that if the contestant (Smith) prevails in an election

contest and the contestee (Hollins) has already taken office, “the Governor, or the Lieutenant

Governor in case the Governor be a party to the contest, shall call a special election for the

office or offices involved.”      Because the statute is unambiguous we must interpret it strictly.

We believe that in this case the application of the statute will work an injustice.      Smith and

Hollins were the only two persons to run in the Democratic primary for the seat on the board

of supervisors.         No Republican or Independent qualified to run, and Hollins therefore ran

unopposed in the general election.       We have determined that only Smith’s name should have

been on the general election ballot, just as Hollins’ name was.       Equity demands that Smith

should be allowed to take the seat on the board of supervisors without any further action. Cf.

McIntosh v. Sanders, 831 So. 2d 1111 (Miss. 2002) (courts may have discretion in calling

a special election for county election commission, and where the contestant and the contestee

were the only candidates for the office, there was no need for a special election). However,

because the statute applies and because the statute does not allow judges to use their

discretion, we must order that a special election be held. We urge the Legislature to cure the

gross inequity that candidates under these circumstances must face, and we reluctantly hold

that a special election must be held.




                                                  15
¶15.    In so holding, we must overrule the case of Hatcher v. Fleeman, 617 So. 2d 634 (Miss.

1993), to the limited extent that we erroneously held there that a special election was not

required.   Hatcher involved a party primary election for a seat on the board of supervisors.

The primary election ended in a tie.        Hatcher contested the election, and a special tribunal

found that Fleeman was the winner by one vote.               We held that a special election was not

required: (1) “[T]he will of the voters [had] been discerned. . . .” (2) “Only two ballots were

disqualified, not ballots of the entire precinct. . . .”; and (3) “[The] disqualification of the two

illegal ballots change[d] the result of the election from a tie to a win for Fleeman by one vote

. . . .” 617 So. 2d at 641. This holding is directly contrary to Miss. Code Ann. § 23-15-937

(Rev. 2001); and therefore, Hatcher must be, and is overruled to the limited extent that we

erroneously held that a special election was not required.

                                           CONCLUSION

¶16.    The final tally is determined to be 515 votes for Edward Kirk Smith and 514 votes for

Richard Hollins.    We reverse and render the Tribunal’s judgment and declare Edward Kirk

Smith the winner of the second Democratic primary election for the position of member of

the Board of Supervisors of Wilkinson County, Mississippi, District Two.              Accordingly, a

special election shall be conducted, as provided by applicable law.

¶17.    We order the Clerk of this Court to send certified copies of this opinion to the

Governor of the State of Mississippi, the Secretary of State of the State of Mississippi, the

Attorney General of the State of Mississippi, each of the Wilkinson County Election

Commissioners, the Wilkinson County Board of Supervisors, and the Wilkinson County

Circuit Clerk.


                                                   16
¶18.   REVERSED AND RENDERED.

       COBB, P.J., EASLEY, DICKINSON AND RANDOLPH, JJ., CONCUR. GRAVES,
J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION. CARLSON, J., CONCURS
IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED
BY SMITH, C.J. DIAZ, J., NOT PARTICIPATING.


       CARLSON, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:

¶19.   While I concur in the majority opinion, insofar as its declaration that Edward Kirk

Smith is the winner of the second Democratic primary election for the position of District

Two Supervisor in Wilkinson County, Mississippi, I respectfully part ways with the majority

in its declaration that a special election must be held pursuant to Miss. Code Ann. § 23-15-937

(Rev. 2001). Although I agree that we must strictly interpret the statute, I do not interpret the

statute in the same way as the majority. Instead of overruling Hatcher v. Fleeman, 617 So.2d

634 (Miss. 1993), which the majority has now done, I would apply Hatcher to rule that under

the facts and circumstances peculiar to this particular case, a special election is not warranted.

Id. at 640-41. Since the Democratic nominee was unopposed in the November, 2003 general

election and since Edward Kirk Smith should have been that nominee, I would rule that Edward

Kirk Smith is entitled to the office of District Two Supervisor for the term of office

commencing in January, 2004, and order that he be commissioned accordingly.          The citizens

of Wilkinson County in general, and of District Two in particular, are entitled to finality and

certainty as to who their District Two supervisor is. This cloud of uncertainty has been hanging

over Wilkinson County since August 5, 2003. It is time to remove it now.

¶20.   For these reasons, I respectfully concur in part and dissent in part.

       SMITH, C.J., JOINS THIS OPINION.


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