                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2016-EC-00675-SCT

TROY WESLEY

v.

WASHINGTON COUNTY DEMOCRATIC
EXECUTIVE COMMITTEE AND CARL McGEE


DATE OF JUDGMENT:                          02/28/2016
TRIAL JUDGE:                               HON. L. BRELAND HILBURN
TRIAL COURT ATTORNEYS:                     WILLIE GRIFFIN
                                           SANDRA JARIBU HILL
                                           JAMIE FERGUSON JACKS
                                           BENNIE LE NARD RICHARD
COURT FROM WHICH APPEALED:                 WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JAMIE FERGUSON JACKS
ATTORNEYS FOR APPELLEE:                    SANDRA JARIBU HILL
                                           WILLIE GRIFFIN
NATURE OF THE CASE:                        CIVIL - ELECTION CONTEST
DISPOSITION:                               AFFIRMED -11/30/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE WALLER, C.J., KITCHENS, P.J., AND BEAM, J.

       BEAM, JUSTICE, FOR THE COURT:

¶1.    Appellant Troy Wesley lost the Democratic primary election for Washington County

District 3 Supervisor on August 4, 2015. He subsequently petitioned the circuit court to

request a new election, alleging that numerous irregularities had invalidated the former one.

After a hearing on the matter, the Washington County Circuit Court granted summary

judgment to defendants Carl McGee and the Washington County Democratic Executive

Committee. Aggrieved, Wesley now appeals to this Court. In his appeal, Wesley cites no
discrepancy in the original vote totals and instead focuses his arguments on procedural

problems, including an alleged lack of ballot-box security. While the failure to maintain

ballot-box security is a serious issue worthy of reprimand, we find that Wesley’s arguments

are insufficient to raise a genuine issue of material fact and that summary judgment was

properly entered in favor of the defendants.

                                           FACTS

¶2.    On August 4, 2015, the Democratic primary for Washington County District 3

Supervisor resulted in candidate Carl McGee receiving 448 votes and Troy Wesley receiving

378. The vote totals for the two candidates differed by 70 votes, but Wesley challenged the

election—first by filing a petition with the Washington County Democratic Executive

Committee (WCDEC), then by filing a complaint in Washington County Circuit Court

against Carl McGee and the WCDEC. Before the trial court, Wesley alleged that numerous

violations of election law had taken place and asked for a new election.

¶3.    Prior to trial, both sides requested summary judgment. On October 21, 2015, McGee

filed such a motion; then the WCDEC filed a motion for dismissal or, in the alternative,

summary judgment. Wesley then filed for summary judgment and offered his own affidavit

and various photos of ballot boxes in support of his allegations in the case. The trial court

eventually held a hearing on February 23, 2016, and concluded that “[t]here has not been

demonstrated to the Court that there [were] enough illegal votes cast . . . to change the result

of the election.” The court continued, explaining that “[i]t has not been established that so

many votes are disqualified that the will of the voters is not established by this vote count.”



                                               2
Accordingly, the court issued an Order of Dismissal, in which it dismissed the case “with

prejudice and all cost taxed to Plaintiff.” Though noting that all of the parties admitted

election irregularities had occurred, the court denied Wesley’s motion for summary judgment

and granted the motions of McGee and the WCDEC. Aggrieved, Wesley appealed to this

Court.

¶4.      In his appeal, Wesley continues to allege that numerous election irregularities

occurred and that those irregularities require a new election for Washington County District

3 Supervisor. Narrowing his arguments to focus on ballot-box security, Wesley alleges the

following:

         1)    The election result ballot boxes were not properly sealed as prescribed
               by law;

         2)    Election machine memory cards and results from machines were not in
               any closed box whatsoever, but in an open cardboard box in the circuit
               clerk’s office;

         3)    The circuit clerk did not control and secure the ballot boxes as she was
               not in control of the boxes for weeks following the election;

         4)    Ballot boxes were left in the hallway of the courthouse, their tops open
               and at least one member[] of the WCDEC removed items from these
               boxes, all prior to Wesley’s examination of the boxes;

         5)    Because of the WCDEC’s failure to properly tally affidavit and
               absentee votes, the circuit clerk herself was forced to tally these votes;

         6)    Washington County Election Commission (William Gist) also handled
               and canvassed ballots for the WCDEC;

         7)    There is no agreement between the Washington County Election
               Commissioners and the WCDEC to assist in the canvass of ballots;




                                               3
       8)     There was no evidence in any of the election boxes that ballots were
              properly received and accounted for by the Receiving Managers at the
              polls – there were no receipts signed showing how many ballots were
              delivered (affidavit and curbside); and

       9)     The results from the Lake Vista Lodge Machine #1 could not be found
              during Wesley’s examination.1

Wesley argues that “the ballot box security issues alone are enough to warrant a new

election.”

¶5.    In response to Wesley’s appeal, McGee asserts that Wesley failed “to provide concrete

evidence to prove” that “alleged ‘radical departures’ changed the outcome of the election.”

Indeed, McGee claimed that, even if true, the irregularities noted by Wesley applied only to

the 2.8% of the votes cast on paper, rather than electronic ballots. By themselves, the paper

ballots were too few in number to change the election outcome. McGee admitted that

       1
         Wesley fails to elaborate on the alleged issues regarding Lake Vista Lodge Machine
#1 in his brief to this Court. Instead, he references a personal affidavit he filed at the trial
level, in which he states that one of his representatives was unable to locate the memory card
and results print-out from the machine in question. The affidavit presents various concerns
with the lack of security and carelessness exhibited by the defendants in the execution of
their responsibilities throughout the election. However, this personal affidavit–sworn out
by the plaintiff, and including information received from third-party personnel—constitutes
the only record evidence presented regarding Machine #1. Moreover, the affidavit itself is
unclear as to whether the Lake Vista Lodge Machine #1 memory card was missing entirely
or was merely in a different box than expected. Only in response to Defendants’ motions
and in an Itemization of Undisputed Facts did Wesley suggest that the circuit clerk had been
“unable to locate the memory card” when Wesley examined the ballot boxes. He neither
presented the clerk as a witness nor attempted to present evidence to corroborate this claim.
Several months later, in the motions hearing before the trial court, Wesley’s attorney merely
emphasized that the results print-out from the machine was missing. Without more,
Wesley’s affidavit and his attorney’s argument amount to nothing but unsupported claims.
With no accompanying allegations of fraud or serious discrepancies in the vote count and
no reason to doubt that the original election failed to express the will of the voters, we
cannot find that the claims regarding Lake Vista Lodge Machine #1 create a genuine issue
of material fact to reverse summary judgment against Wesley.

                                               4
“various technical glitches” and “improper handling of paper ballots” had occurred, but he

noted that Wesley “did not allege fraudulent or intentional illegal conduct on the part of

election officials.” According to McGee, allegations of fraud or intentional wrongdoing are

necessary before a Mississippi court will overturn an election.

¶6.    Meanwhile, the WCDEC presents arguments similar to McGee’s. It notes that only

twenty-four ballots cast in the election were known to be paper ballots, but it concedes “that

there were irregularities committed while the paper ballots were being counted.” Still, the

WCDEC emphasizes that voters cast 97.2% of the ballots in the election on electronic voting

machines (EVMs) and that Wesley “offered no evidence that the integrity of the 802 votes

cast by EVMs was destroyed or placed in doubt.” Per the WCDEC, Wesley should have

shown that an error in the EVM vote totals had occurred. Since he did not, too few

disqualified votes existed to warrant a new election.

¶7.    In response to the arguments of McGee and the WCDEC, Wesley asserts that “the

multiple ballot box security issues called all of the votes into question.” He also remarks that

“no one . . . can be certain how many paper ballots were cast in this election because the

boxes were never properly secured.” Thus, according to Wesley, the percentage of paper

ballots versus electronic ballots was irrelevant, and the irregularities require a new election,

whether or not they were fraudulent in nature.

                                         ANALYSIS

¶8.    Now, more than two years after voters first went to the polls in the Democratic

primary for Washington County District 3 Supervisor, this Court must decide whether



                                               5
summary judgment against Wesley was appropriate.

¶9.    In doing so, and in accord with longstanding practices, “[t]his Court applies a de novo

standard of review to a circuit court’s grant or denial of summary judgment.” Indemnity Ins.

Co. of N. Am. v. Guidant Mut. Ins. Co., 99 So. 3d 142, 149 (Miss. 2012). Summary

judgment is proper “if the pleadings, depositions, answers to interrogatories and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of law.” Miss.

R. Civ. P. 56(c); see also Indemnity Ins. Co. of N. Am., 99 So. 3d at 149. In assessing

summary judgment, “the evidence must be viewed in the light most favorable to the party

against whom the motion has been made.” Kilhullen v. Kansas City S. Ry., 8 So. 3d 168, 174

(Miss. 2009) (citing Daniels v. GNB, Inc., 629 So. 2d 595, 599 (Miss. 1993)).

¶10.   When a case involves an election, courts tread carefully, warranting new primary

elections only under certain circumstances. “In a primary election contest, an election should

be voided only if there has been such a departure from statutory compliance ‘as to destroy

the integrity of the election and make the will of the qualified electors impossible to

ascertain.’” Waters v. Gnemi, 907 So. 2d 307, 315-16 (Miss. 2005) (quoting Riley v.

Clayton, 441 So. 2d 1322, 1328 (Miss. 1983)). The key to reviewing an election is to take

the interests of the candidates into account while at the same time ultimately seeking to fulfill

the will of the voters. Noxubee Cty. Democratic Exec. Comm. v. Russell, 443 So. 2d 1191,

1197 (Miss. 1983); Rogers v. Holder, 636 So. 2d 645, 651 (Miss. 1994); see also Guice v.

McGehee, 124 So. 643, 647 (Miss. 1929) (noting “a general rule that election laws are



                                               6
construed liberally in favor of the electors”).

¶11.   Mississippi law sets detailed guidelines for local officials to follow when conducting

an election, and those guidelines address the proper means for securing election materials

both before and after voters have cast their ballots. In the case before us, Mississippi Code

Section 23-15-597 controls. This section requires that, after a county primary election, a

major political party’s county executive committee is required to canvass the votes, unless

it has an otherwise legal, written agreement with the circuit clerk or the county election

commission permitting the circuit clerk or county election commission to help in the

process.2 Miss. Code Ann. § 23-15-597 (Rev. 2015). Once the canvassing process for a

ballot box is complete, the law requires that

        [A]ll the contents of the box required to be placed and sealed in the ballot box
       by the managers shall be replaced therein by the election commission or
       executive committee, as the case may be, and the box shall be forthwith
       resealed and delivered to the circuit clerk, who shall safely keep and secure the
       same against any tampering therewith.
Miss. Code Ann. § 23-15-911(1) (Rev. 2015).3 Items that should have been sealed in the

ballot box by that point include “all ballots voted, all spoiled ballots, . . . all unused ballots,”

a certificate declaring the voting results, and:

       [O]ne 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

       2
        “Canvass” here means “[t]o formally count ballots and report the returns.” Canvass,
Black’s Law Dictionary (4th pocket ed. 2011).
       3
       A 2017 amendment to this statute added the word “poll” in front of managers and
removed the word “therewith.”

                                                  7
       ballot box. There shall be also inclosed 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.

Miss. Code Ann. § 23-15-591 (Rev. 2015).4 Circuit clerks even must follow specific

procedures for sealing and resealing ballot boxes. Miss. Code Ann. § 23-15-595 (Rev.

2015). When irregularities occur regarding ballot-box materials, determining the “will of the

voters” is a core consideration, and under certain circumstances, if the will of the voters is

impossible to discern, “the entire box may be thrown out.” Miss. Code Ann. § 23-15-593

(Rev. 2015). Therefore, the law unquestionably requires that local officials handle ballot-box

materials with great care.

¶12.   The need for care also extends to votes cast on electronic voting equipment. In 2015,

after assessing election results, poll managers had to transport electronic voting materials to

county or municipality tabulating centers. Miss. Code Ann. § 23-15-531.10 (Rev. 2015).

Subsequently, the following procedure was to take place:

       Upon receipt of the sealed envelope or communication pack containing the
       zero tapes, results tapes and memory cards, the officials in charge of the
       election shall verify the signatures on the envelope or communication pack.
       Once verified, the officials in charge of the election shall break the seal of the
       envelope or communication pack and remove its contents. The officials in
       charge of the election shall then download the results stored on the memory
       card from each DRE unit into the election management system located at the
       central tabulation point of the county in order to obtain election results for
       certification.




       4
        A 2017 amendment to this statute made minor revisions to the statute’s wording.

                                               8
Miss. Code Ann. § 23-15-531.10(7) (Rev. 2015).5

¶13.      This Court has addressed election challenges on numerous occasions. See, e.g.,

Rogers, 636 So. 2d 645; Waters, 907 So. 2d 307; Ruhl v. Walton, 955 So. 2d 279 (Miss.

2007); Esco v. Blackmon, 692 So. 2d 74 (Miss. 1997); Noxubee Cty., 443 So. 2d 1191. In

such cases, several considerations have played roles in the Court’s decisions. In general, the

Court has sought to uphold the integrity of the election process and follow the wishes of the

voters.       Waters, 907 So. 2d at 315-16. More specifically, the Court also has looked to

determine whether a violated statute is mandatory or merely directory. Rogers, 636 So. 2d

at 647-48. “If the violated statute is directory rather than mandatory and there is no

allegation or proof of fraud, the non-complying ballots are valid and properly counted,” as

long as the integrity of the election is preserved. Id. at 648. On the other hand, “[v]otes not

in compliance with mandatory provisions of election statutes are illegal. Votes illegally cast

are improperly counted.” Id. Thus, the nature of election statutes helps to determine which

votes count or not.

¶14.      Sometimes, though, election irregularities rise to a level warranting consideration of

a new election. In such cases, this Court has implemented the following test:

          When an election has been successfully contested, this Court has employed
          different tests over the years to aid its determination of what form of relief is
          in order. By various routes, we have attempted to discern whether the entire
          election should be thrown out or only the tainted votes. We have employed a
          two pronged test which though it has been stated in different ways, essentially
          provides that special elections will be required only when (1) enough illegal
          votes were cast for the contestee to change the result of the election, or (2) so

          5
      A 2017 amendment to this statute made minor revisions to the statute’s wording and
removed the reference to verifying signatures on the envelope or communication pack.

                                                 9
       many votes are disqualified that the will of the voters is impossible to discern.

Noxubee Cty., 443 So. 2d at 1197. Sometimes the test shows that a new election is

warranted. Sometimes it does not, even if a limited number of votes is discounted.

¶15.   Either way, the factors we consider when evaluating elections sometimes combine to

deem votes illegal or disqualified for reasons that, on their face, might seem minor. In

Noxubee County, four voting boxes were worthy of disqualification because “the receiving

manager and initialing manager were one and the same person.” Id.; see also Prescott v.

Ellis, 269 So. 2d 635, 636 (Miss. 1971). Even so, the disqualification affected too few votes

to require a new election. Noxubee Cty., 443 So. 2d at 1198.

¶16.   In another case, this Court threw out three absentee ballots because the town clerk

delivered them to her relatives improperly. Lewis v. Griffith, 664 So. 2d 177 (Miss. 1995).

In still another case, a new Democratic primary election was permitted because, during and

after the initial primary, neither the Democratic Party county executive committee nor the

circuit clerk had maintained proper control of the election materials and because materials

from several precincts ended up in two, unsecured cardboard boxes. Waters, 907 So. 2d at

332-35.

¶17.   Importantly, a showing of fraud or similar activity is not required in order for a new

election to be warranted. As noted in Noxubee County, demonstrating fraudulent electoral

activity helps meet the threshold for calling voters back to the polls; though “the

disenfranchisement of a significant number of voters will cast enough doubt on the results

of an election to warrant voiding it.” Noxubee Cty., 443 So. 2d at 1198. As a result, evidence



                                              10
of fraudulent activity is not required before calling a new election, even if the lack of such

a requirement risks the possibility that losing candidates could try to benefit from “innocent

human error.” Id. at 1197. In Waters, this Court reaffirmed this standard, granting a new

election and specifically stating that it was not accusing Holmes County election officials of

“intended wrongdoing.” Waters, 907 So. 2d at 336.

¶18.   Just as fraudulent activity in an election is not required in order for votes to be

discounted, no hard and fast equation exists for determining when to reject the results of an

election and hold a new one. Some cases suggest that when thirty percent of the votes are

disqualified, courts should order a new election; yet those same cases leave the door open for

new elections even when the percentage of discounted votes is smaller. Noxubee Cty., 443

So. 2d at 1198; Rizzo v. Bizzell, 530 So. 2d 121, 128 (Miss. 1988). Ultimately then, one of

the most important tests for assessing an election is the two-pronged test examining the

numbers of illegal and disqualified votes. Noxubee Cty., 443 So. 2d at 1197. The first prong

of the test examines whether “enough illegal votes were cast for the contestee to change the

result of the election,” and the second prong examines whether “so many votes are

disqualified that the will of the voters is impossible to discern.” Id.

¶19.   We readily find that the first prong of the test is irrelevant to the facts of this case. On

appeal, Wesley admits that he “may not have alleged fraud.” With no allegations of illegal

voting and no specific allegations of fraudulent election activity, we turn our analysis to the

second prong of the Noxubee County test.

¶20.   Applying the second prong, we ask whether Wesley established a genuine issue of



                                               11
material fact regarding the number of votes that should have been disqualified in the election.

The cases cited above show that the disqualification of votes can occur even without

fraudulent activity by election officials. Here, Wesley supported his position, making largely

uncontradicted allegations of lapses in ballot-box security; though he failed to show that

enough votes should be disqualified to give him another chance to win the election.

¶21.   Of Wesley’s nine allegations on appeal, the fifth, sixth, and seventh addressed

potentially improper activity by the circuit clerk and county election commissioners when

processing election results. Significantly though, Wesley made no specific claims indicating

that the officials reached the wrong results. Admittedly, the Waters case examined similar

improper activity and granted a new election; but in that case, an almost complete breakdown

of responsibility occurred among the Democratic county executive committee members, the

election commissioners, and the circuit clerk. Waters, 907 So. 2d at 331-33. Almost no one

fulfilled his or her proper election role, and though not determinative of the outcome of the

case, officials had made severe mistakes in calculating the initial winner of the primary. Id.

at 310-12, 331-33.

¶22.   Wesley failed to allege such severe irregularities here. He indicated that at least one

commissioner participated in canvassing the vote when the WCDEC alone should have been

involved. He also argued that the circuit clerk tallied the absentee and affidavit ballots when

the WCDEC should have done so instead. Such activities, if true, certainly call into question

the accuracy of WCDEC’s efforts involved. However, by themselves, the activities do not

call into question the integrity of the entire election.



                                               12
¶23.   Of more significance are Wesley’s claims that election officials almost entirely

neglected ballot-box security in the aftermath of the election. Wesley alleged that the seals

on boxes were inappropriate, that the circuit clerk failed to maintain control of the boxes, and

that “there was no evidence in any of the boxes that ballots were properly received and

accounted for by the Receiving Managers at the polls.” If true, the irregularities represent

serious violations of election law. In Noxubee County and Waters, this Court discounted

votes for similar violations, and in Waters, a new election was warranted. Waters, 907 So.

2d 307; Noxubee County, 443 So. 2d 1191. If paper ballots alone had been involved here,

the circumstances almost certainly would demonstrate the need for voters to cast their votes

again. But paper ballots were not the only ballots in this election: the record indicates that

only twenty-four paper ballots were successfully cast. Wesley aptly claimed that, due to the

election irregularities, no one can know how many paper ballots voters tried to cast. On

appeal, however, he points to no specific discrepancies in the paper-ballot vote count. Even

if this Court discounted all of the paper ballots tallied in the race, the election results would

remain unchanged.

¶24.   Alternatively, the record demonstrates that electronic ballots represented the vast

majority of votes cast during the election. If Wesley successfully called into question their

integrity, our decision today likely would be different. But on appeal, Wesley’s only specific

references to the electronic ballots were that “the election machine memory cards and results

from machines were not in any closed box whatsoever” and that “the results from the Lake

Vista Lodge Machine #1 could not be found during Wesley’s examination.” Notably, he did



                                               13
not say whether he could determine if the electronic votes were properly downloaded after

the election. See Miss. Code Ann. § 23-15-531.10(7) (Rev. 2015). He also did not suggest

that the memory cards showed signs of tampering. Wesley may have alleged irregularities

in the election process, but given the safeguards normally built into electronic voting

machines, it is difficult to conclude that the irregularities either called into question the

integrity of the election or blurred the will of the voters. Without more, Wesley has failed

to establish a genuine issue of material fact that would suggest the need for a new election.

¶25.   The Court recognizes and critically considers Wesley’s allegations of violations of

election procedure. Those allegations may have failed to refute the validity of the election,

but if true, they represent serious violations of existing election law and a failure of election

officials to fulfill their duties. This is especially true here, where both McGee and the

WCDEC appeared to agree with Wesley that at least some irregularities occurred. While we

recognize that no election is flawless, we encourage election officials in the county to adopt

a stricter adherence to the State’s election laws to prevent similar matters in the future.

                                       CONCLUSION

¶26.   After applying the two-pronged test from Noxubee County, we affirm the trial-court

judgment. Noxubee Cty., 443 So. 2d at 1197. A key part of analyzing an election involves

determining whether the will of the voters is clear. See, e.g., Waters v. Gnemi, 907 So. 2d

at 315-16. Wesley’s allegations suggest that serious violations of election law may have

occurred during the 2015 Democratic primary for Washington County District 3 Supervisor,

but Wesley failed to indicate that enough illegal votes were cast to warrant a new election.



                                               14
He also failed to show that enough votes were disqualified to warrant a new election.

Finding that Wesley failed to meet the requirements under the Noxubee County test, we

affirm the circuit court’s decision to dismiss the case on defendant’s summary judgment

motion.

¶27.   AFFIRMED.

    WALLER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN,
MAXWELL, CHAMBERLIN AND ISHEE, JJ., CONCUR. KING, J., NOT
PARTICIPATING.




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