Amended Petition for Writ of Mandamus

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IN THE CIRCUIT COURT OF LEFLORE COUNTY, MISSISSIPPI
STATE EXECUTIVE COMMITTEE
OF THE MISSISSIPPI REPUBLICAN PARTY
V.
PLAINTIFF
Civil No. 2008–0126-CICI
ELECTION COMMISSION OF LEFLORE COUNTY,
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 available through
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
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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 voters into 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 voters to vote for “the first one” on each selection on the ballot, and to “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.
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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; Sartin v. Barlow, 16 So.2d 372, 376 (Miss. 1944).
Although unlawful conduct is capable of repetition at every election, it may evade
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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, Mississippi 39205
(601) 968-5534 (Telephone)
(601) 944-7738 (Facsimile)
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Spence Flatgard
Spence Flatgard, Legal Counsel, PLLC
210 East Capitol Street, Suite 1262
Jackson, Mississippi 39201
601-672-5917 (telephone)
601-948-1506 (facsimile)
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