Sunday, November 1, 2015, 12:00 pm News Flash Archive

When Judge Lackey dismissed Sheriel Perkins election contest against Carolyn McAdams last month, he made an error that should be corrected.

A jurist of the utmost integrity, Judge Lackey was nevertheless led astray by several irrelevant arguments, which distracted him from grappling with the central legal question about the poll book mix-up in North Greenwood.

Full disclosure here: although I cast a ballot in the 2013 city elections, I did not vote for either Perkins or McAdams. The public disputes between me and both the Perkinses and Carolyn McAdams are well known.

Mr. Perkins and I have been on opposite sides of several election contests. We both won some, and lost some against each other. But contrary to what his detractors may claim, Perkins is not always wrong when he argues an election contest.

In this case, Perkins met his burden of proof regarding the illegal votes cast in Wards 1 and 2. I reach that conclusion based on 24 years of professional experience investigating elections and advising litigants in these matters.

Nobody disputes that the poll books were in the wrong wards in North Greenwood on election day morning. This had the unfortunate effect of ensuring that all the votes cast on the voting machines during that period of time in Wards 1 and 2 were cast unlawfully.

First, the very fact that a voter was found registered in the swapped poll book ensured that he was not entitled to vote on the voting machines in that ward, because he was registered in the other ward to which the poll book actually belonged and in which he most likely lived.

But even if he had recently moved into the ward he voted in (but wasn't registered in), the law requires him to cast an affidavit ballot in that case.

Finally, if some voters signed the receipt book in one ward, and then traveled to the other ward to cast a ballot, those ballots were illegal because the voter did not sign the receipt for the ballot as the law requires in the ward in which he cast his vote.

Very disturbing was the sworn testimony that some election workers directed voters who were not found in the poll book in the ward they lived in, to go to the other ward where they didn't live, to vote there instead. It is a crime to vote in a ward in which you do not live.

So long as a ward has the wrong set of poll books, every single vote cast on the voting machines using those books is necessarily illegal and cannot be counted.

Perkins put on sworn testimony that this situation persisted for two hours, with over 370 votes illegally cast on the voting machines during this period.

This was more illegal votes than the 206 vote margin of the election.

McAdams' lawyers pitched four irrelevant arguments to the judge to combat this evidence:

1. They pointed out a statute that permits an election to proceed even when there are no poll books. But that statute doesn't apply, because the poll books weren't missing.

2. They argued that McAdams had no conceivable interest in sabotaging her two strongest wards. But Perkins had never claimed that the mix up was anything other than a careless error by election officials.

3. They argued it was unfair to throw out all 1600 votes cast in North Greenwood. But the argument was about the 370 votes cast while the poll books were mixed up, not the votes that were cast after the error was set right.

4. They argued that Perkins didn't provide the names of the illegal voters.

But Perkins was only required to prove the number of illegal votes cast, not the identity of the voters who cast them.

Sadly, in his ruling dismissing the case, Judge Lackey never even engaged the crucial legal issue of why all those early morning machine votes cast in North Greenwood were necessarily illegal.

Instead, Lackey raised two additional irrelevant arguments out of thin air.

He pointed out that no voters were denied the right to vote, and that every voter was allowed to vote for the candidate of his choice.

This was true, but beside the point. The legal question was not the sincerity or desire of the voters, but rather that they cast their votes in wards they didn't live in or weren't entitled to vote in.

Had the trial proceeded, it may well be that McAdams would have put on witnesses contradicting Perkins' witnesses as to the length of time and the number of votes affected by the mix up. Depending on her evidence, McAdams might still have won the election contest that way.

But it was wrong for Judge Lackey to dismiss Perkins case by relying upon misplaced arguments and ignoring the illegality of the 370 votes which the evidence at that point in the trial had revealed.

I'm sure I'll be denounced as a pariah for taking this position. Many people in Greenwood are virulently opposed to Perkins, and wanted her to lose her case at all costs. It is sad, but true, that when it comes to election contests, the partisans on either side don't really care about the facts or the law -- they just want their side to win.

But the issues in this case are too important to subordinate to partisan passion. A huge mistake was made by some election officials, and we need to know how this happened, and who was responsible.

Worse, the court failed to uphold the fundamental principle of fair elections: that nobody claims office based upon the counting of illegal votes.

Rather than dismissing the case, the court should have given McAdams' lawyers the chance to put on whatever proof they had, if any, that the number of votes involved was not large enough to change the outcome of the election.

As it stands now, we'll probably never know for sure.

John Pittman Hey
The Taxpayers Channel

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