bates petition for writ of mandamus

8/2/2019 Bates Petition for Writ of Mandamus

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Case: 45CI1:12-cv-00073-c Document #: 1 Filed: 03/20/2012 of 6

DON BATES PETITIONER

LEE WESTBKUOKCIRCUIT C L E ~ R K . . , _ _ _ _

JOHN BROWN, KAREN POWELL, AND CAUSE NO.ec, ljj J_.,. '/J _,

vs.

JOHNNIE ROGERS, IN THEIR CAPACITYAS ELECTION COMMISSIONERS FOR THE

CITY OF CANTON SPECIAL ELECTIONFOR BOARD OF ALDERMEN, WARD 2 RESPONDENTS

PETITION FOR WRIT OF MANDAMUS

COMES NOW, Don Bates, Petitioner, by and through his attorneys, C.R. Montgomery

and John P. Martin of Montgomery McGraw, PLLC, and files this, his Petition for Writ of

Mandamus, requesting that this Court mandate that City of Canton election commissioners John

Brown ("Commissioner Brown"), Karen Powell ("Commissioner Powell"), and commission

chairperson Johnnie Rogers ("Commission Chair Rogers") (collectively, the "Election

Commissioners") deliver a Certificate of Election for the March 13, 2012 special election for

Ward 2 Alderman, City of Canton, Mississippi (the "Election"), as required under Mississippi

Code § 23-15-611, and, in support thereof, would show unto this Court the following:

FACTUAL BACKGROUND

1. Petitioner Don Bates ("Bates") is a candidate for Ward 2 Alderman for the City of

Canton, Mississippi. The Election was held on Tuesday, March 13, 2012, with candidates

including Bates and Edward Thompson ("Thompson"), Johnny Lee Burse, Jr. ("Burse"), Cal

Bland, Sr. ("Bland"), and Natwassie Truly ("Truly"). Following the closing of the polls on that

date, the election managers returned the votes to the Election Commissioners.

2. The Election Commissioners reviewed the votes, and upon information and belief,

the regular and absentee ballots (469 in total) were distributed as follows:

Bates 271

Thompson 102

Truly 63

PETITION FOR WRIT OF MANDAMUS- Page 1




Bland 19

Burse, Jr. 14

3. In addition to the regular and absentee ballots, seventy-eight (78) affidavit ballots

had been cast, and the Election Commission announced that it needed additional information in

order to determine their validity, as the residences of the voters casting them needed to be

verified. Bates was notified that a meeting would be held at 10:00 a.m. the next morning,

Wednesday, March 14, 2012, for that purpose.

Wednesday, March 14,2012

4. Petitioner Bates arrived at City Hall in Canton, Mississippi ("City Hall") by 10:00

a.m. At roughly 11 :00 a.m., Bates joined the Election Commissioners at the Madison County

Circuit Clerk's office in order to determine the residences of the affidavit voters. After this

information had been obtained, a meeting was set for 4:00p.m. at City Hall in order to gothrough the affidavit ballots and complete the election certification process.

5. Among those in attendance at the 4:00p.m. meeting were all three members of

the Election Commission, Bates, Thompson, and a representative for candidate Truly. During

the meeting, it was agreed by the Election Commission that thirty-three (33) out of seventy-eight

(78) affidavit ballots would be accepted for counting. The Election Commission also agreed,

unanimously, that twenty-six (26) ofthe remaining forty-five (45) ballots would not be accepted,

as these ballots had been signed by persons not residing within Ward 2. Another nineteen (19)

affidavit ballots were called into question, either because they were believed to have been cast by

unregistered voters or because they had been cast by persons not living within the ward.

6. As the 4:00p.m. meeting- which lasted roughly two (2) to three (3) hours-

worked towards conclusion, Commissioner Brown began to express a need to reexamine the

twenty-six (26) affidavit ballots the Election Commission had previously decided not to count,

based upon the Election Commission's finding that they had been signed by persons living

outside of Ward 2. Commissioner Brown announced that he wanted to confer with an attorney

on the matter. Commissioner Powell also announced that she would like to consult with the

Mississippi Secretary of State's Office regarding the Election Commission's decision.

7. The 4:00p.m. meeting was thus adjourned in order for the Election Commission

to seek further guidance.

PETITION FOR WRIT OF MANDAMUS- Page 2




Thursday, March 15,2012

8. Petitioner Bates was notified the following morning, Thursday, March 15, 2012,

that an Election Commission meeting would be held at 1:30 p.m. Later, Bates was notified that

the Election Commission in fact would not meet at that time. Still later, Bates was notified that

the Election Commission would not meet at all on Thursday, and instead would meet Friday

morning at 10:00 a.m.

9. During his conversations with Election Commission members, Bates learned that

the Election Commission had sought the opinion of the Mississippi Secretary of State's Office -

Elections Division, the Mississippi Attorney General's office, and a local attorney, regarding

their affidavit ballot certification questions. At all times, the Election Commission was advised

that the following categories of affidavit votes could not be counted:

(a) affidavit ballots cast by persons residing outside ofWard 2;(b) affidavit ballots cast by individuals who were not registered to vote;

(c) affidavit ballots which had not been signed by a poll manager.

10. In numerous conversations with Bates, Commission Chair Rogers expressed a

willingness to certify the election, and an opinion that the Election Commission was adequately

informed in order to carry out its duties. However, Commission Chair Rogers also expressed

that she was having difficulties in finding a time at which the other Election Commissioners

could meet, or in persuading the other Election Commissioners to meet and certify the election.

Friday, March 16, 2012

11. Petitioner Bates arrived at City Hall by 10:00 a.m. on Friday, March 16, 2012.

Commission Chair Rogers arrived shortly afterwards, and conferred by telephone with the other

Election Commissioners. Bates was then informed that the Election Commission was not

available to meet during the morning, but would meet at 1:00 p.m.

12. At roughly 1 30 p.m. on Friday, March 16, 2012, Commissioner Brown and

Commissioner Powell arrived in their vehicles outside ofCity Hall and met in the parking lot

behind the building for fifteen to twenty-five minutes. By 2:00p.m., Commissioner Brown andCommissioner Powell entered City Hall, stating that they had been holding discussions regarding

the election, but that they were not ready to move on with the certification of the election. The

two left shortly thereafter. Commission Chair Rogers informed Bates that the other Election

PETITION FORWRIT OF MANDAMUS - Page 3




Commissioners needed to obtain further guidance from the Mississippi Secretary of State's

Office in order to proceed.

13. Commission Chair Rogers then called a meeting for 4:00p.m. at City Hall.

Commissioners Brown and Powell arrived at City Hall at that time and met with Commission

Chair Rogers in the hallway outside the meeting room. Commissioners Brown and Powell

indicated an unwillingness to enter the room (where previous meetings had been held), so

Commission Chair Rogers asked all observers to leave the room. Bates, along with several

citizens and two representatives of the media, left the meeting room and went into the hallway of

City Hall. As the group exited, Commissioners Brown and Powell immediately left City Hall,

going to the parking lot and driving away.

Saturday and Sunday, March 17-18,2012

15. Over the weekend of March 17-18, 2012, Bates conferred with Commission Chair

Rogers, who expressed her willingness to meet to certify the election. However, Commission

Chair Rogers further explained that the other Election Commissioners could not come to a

decision or agree to meet. Commission Chair Rogers advised that she was willing to meet at

10:00 a.m. on Monday, March 19,2012.

Monday, March 19, 2012

16. When Petitioner Bates arrived at City Hall at 10:00 a.m. on Monday, March 19,

2012, he learned that Commissioner Brown and Commissioner Powell were unavailable to meetonce again. Bates expressed his willingness to be present whenever the Election Commissioners

were available, but was again advised that Commissioner Brown and Commissioner Powell were

unavailable to meet.

LEGAL STANDARD

17. Mississippi Code§ 23-15-611, which governs the determination of municipal

elections, contains the following provisions regarding the duties of election commissioners:

On the day following the [municipal] election, the election commissioners shall canvass

the returns so received from all voting precincts and shall, within five (5) days after

such election, deliver to each person receiving the highest number of votes a certificate

of election.

PETITION FOR WRIT OF MANDAMUS - Page 4




The code section also states:

Within five (5) days after any election, the municipal election commissioners shall

transmit a statement to the Secretary of State certifying the name or names of the person

or persons elected thereat, and such person or persons shall be issued commissions by the

Governor.

Miss. Code. Ann. § 23-15-611 (emphasis added).

AVAILABILITY OF MANDAMUS REMEDY

18. As a candidate interested in the outcome ofthe Election, Bates is authorized to

bring this Petition and has a clear right to relief. The Election Commission has a legal duty to

perform its statutorily-required duty pursuant to Mississippi Code § 23-15-611. A Writ of

Mandamus lies to require performance of an official duty which an officer or commission has

failed to perform. See Miss. Code Ann.§ 11-41-1. If necessary, a court may compel by

mandamus an election commission to perform its official duty or to perform a ministerial act

upon its failure to do so. In re Wilbourn, 590 So.2d 1381 (Miss. 1991).

20. The Election Commissioners have failed to perform their statutorily-mandated

duties within the time prescribed under Miss. Code. Ann. § 23-15-611. As Bates has no other

adequate remedy at law, he brings this action in the form of a Petition for Writ of Mandamus.

RELIEF SOUGHT

WHEREFORE, PREMISES CONSIDERED, Bates requests that the Court consider this

Petition as soon as it expeditiously may do so, and that this Court then proceed to issue a Writ

of Mandamus requiring the Election Commissioners to canvass the vote returns received from

Ward 2, deliver a Certificate of Election to the person receiving the highest number of votes, and

to transmit a statement to the Mississippi Secretary of State certifying the name of the person

elected to the Board of Aldermen for Ward 2 ofthe City of Canton, Mississippi. Bates further

prays for any such and further relief as to which he may be justly entitled.





Respectfully submitted, this theUth day ofMarch, 2012.

C. R. Montgomery (MSB No. 3413)

John P. Martin (MSB No. 103898)

Montgomery McGraw, PLLC

151 West Peace Street

Post Office Box 1039

Canton, MS 3 9046

601-859-3616 (telephone)

601-859-3622 (facsimile)

[email protected]

[email protected]

DON BATES, CANDIDATE FOR WARD 2

BOARD OF ALDERMEN, CITY OF CANTON,

MISSISSIPPIB y : ~ . . ontgomery

J P. Martin

His Attorneys


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