NECAISE v. LOTT

Jesse W. Shanks, Wm. E. Andrews, Purvis, for appellant.

I. The Special Tribunal erred in not throwing out and discounting the ballots cast in the Kiln and Fenton Precincts of Supervisor's District No. 4, Hancock County, Mississippi, for irregularities and fraud committed therein and in not declaring Lander Necaise, as nominee for Supervisor in said District No. 4 as the candidate receiving the highest number of legal ballots cast in the remaining precincts in the Second Democratic Primary Election held on August 23, 1955.

A. Kiln Precinct.

(1) Names of 108 absentee voters and regular voters were signed by the three managers when the absentee voter names should have been signed by the designee; and the regular voters should have signed their names in the Receipt Book. On the trial of this contest before the Special Tribunal, the contestant introduced into evidence the Voters' Receipt Book for the Kiln Precinct which speaks for itself concerning the signatures of the voters contained therein and which shows on its face that the number of voters' names were signed by Taft Shaw, one of the clerks, E.C. Weston and Earl Ladner, two of the managers, as alleged by contestant. Hayes v. Abney, 186 Miss. 208, 188 So. 533; Secs. 3164, 3203-05, 3203-08, Code 1942.

(2) The election managers failed to execute the tally sheets at the said precinct. At the trial before the Special Tribunal, the tally sheets of the Kiln Precinct were introduced into evidence and neither of them bore the signature of any of the managers entrusted with the holding of said election which the contestant, and appellant herein, believes is mandatory if said tally sheets are to import verity.

(13) There was no receipt in the ballot box for the total ballots received at said precinct. Sec. 3159, Code 1942.

(4) Only two of the managers executed the certificates of election. The evidence showed that Pedro Fuentes, one of the managers of said election, did not sign the original certificate of election but that all three managers did sign the duplicate certificate of election.

(5) The application of affidavit of Mrs. Ann Ettelson was not signed by a Notary Public. The evidence showed that said application affidavit bore the seal of a Notary Public but was not signed by said Notary.

(6) The election managers permitted the receipt and count of the vote of Mrs. Vertis Miller, when the application affidavit and absent ballot envelope disclosed that the same were executed on August 23, 1955 (Election Day). The evidence showed that this was true. It occurs to this writer that if an absentee voter is present in the county on the day of the election, that certainly that person could have voted in person at the proper precinct.

(7) The election managers permitted the receipt and count of two absentee votes wherein application for the absentee ballot was made on a date subsequent to the voting of the ballot as disclosed by the acknowledgment of the Notary Public to the affidavit on absentee envelopes; namely, Omar A. Haas and Theodore L. Necaise.

(8) The election managers permitted the receipt and count of one absentee vote wherein the doctor's certificate to the absentee application was undated; namely, Joseph B. Moran.

(9) The election managers permitted the receipt and count of one absentee vote wherein an election manager was designated to deliver the ballot to the manager of the election; namely, L. Wainwright, who designated Earl Ladner.

(10) The election managers permitted the receipt and count of one regular ballot which was marked other than the method provided by law and which was voted for Jack Lott.

(11) The election managers permitted the receipt and count of fifteen absentee votes wherein the absentee ballots were not sealed properly in that the Notary Public did not impress his seal upon the lips of the envelope to prevent tampering without detection. The evidence showed that fourteen of these absentee voter envelopes were acknowledged by the contestee, Lott, and one acknowledged by Johnson Shaw and that there was no seal affixed thereto.

(12) The election managers permitted the receipt and count of fifteen ballots wherein the application and affidavit for absent votes were not acknowledged by a Notary Public. The evidence showed that fourteen of these application affidavits for absentee votes were acknowledged by Jack Lott and that they were the same persons whose ballot envelopes were acknowledged by the said Jack Lott, contestee, mentioned in Point (11), supra, to wit: Mrs. Bertha Cooley, Marvin P. Carpenter, Murrial M. Field, Mrs. Ouida Grimes, Sam Haas, Jr., Eleanor D. Koenenn, Jacques L. Moran, Mary E. Moran, James Hugh Moran, Theodore L. Necaise, Edward Thompson, Delbert William Ziemke, Don Ralph Haas, and Leroy L. Lee. One application affidavit was acknowledged by Johnson Shaw and being the same voter mentioned in Point (11), supra; namely, Mrs. T.L. Betty Necaise. None of said application affidavits had a seal affixed thereto.

(13) The initialing manager endorsed his initials on the back of four hundred and twelve (412) official blank ballots prior to the four hundred and twelve (412) voters signing their names in the Receipt Book.

B. Fenton Precinct.

(1) The election managers permitted the receipt and count of six absentee votes wherein the envelopes containing the absentee ballot was not sealed properly in that Notary Public did not impress his seal upon the lips of the envelope to prevent tampering without detection.

(2) The election managers permitted the receipt and count of six ballots wherein the application and affidavit of absentee voters were not acknowledged by a Notary Public, but were acknowledged by Jack Lott; namely, Edward Faye, Jr., A.W. Faye, Clifford Lizana, Theresa M. Saucier, Rudolph Ladner, and Joseph C. Moran.

(3) The election managers permitted the receipt and count of one regular ballot which was marked other than the method provided by law, and which ballot was cast for Jack Lott.

(4) The election managers permitted the receipt and count of nine absentee ballots which were not supported by a certificate from the Registrar of Elections certifying to the issuance of said absentee ballots to them; namely, James E. Dixon, Betty Ladner, Roy Ladner, Gaston Ladner, Annette Ladner, John V. Ladner, Mrs. John V. Ladner, Mrs. Willie St. Ament, and Mrs. Emma L. Triana. The evidence showed that there were no certificates from the Registrar of Elections certifying to the issuance of absent ballots to the above-named persons.

(5) The election managers permitted the receipt and count of one absentee vote wherein the signature of the absentee voter on the application for absentee ballot when compared to the signature of the absentee voter on the affidavit was highly irregular; namely, Mrs. John C. Koenenn, Jr. The evidence showed that the signature on the application affidavit and the signature on the absent voter envelope did not compare.

(6) The election managers permitted the receipt and count of one soldier's ballot when no designee was named to deliver the ballot; namely, William L. Avin. The evidence showed that the absent voter envelope of this voter did not name the designee to deliver the ballot.

(7) The election managers permitted the receipt and count of two soldier's ballots wherein the officer's certificate on the absentee envelope was not executed; namely, Eldon L. Malley and Earline Malley. The evidence showed that the two ballot envelopes complained of were not executed by an officer required by law.

(8) One voter received an absentee ballot certifying to her absence from the county on the day of the election when in fact she was present in the county on the day of the election; namely, Mrs. Theresa Saucier.

(9) During the inspection of the ballot box of the Fenton Precinct, it was found that none of the managers signed the Certificate of Election, but that they did sign the two tally sheets. The two tally sheets, as above stated, were in variance as to the number of votes received by Jack Lott, one tally sheet showing him to have received ninety-one votes and the other showing Jack Lott to have received ninety-two votes. This point was not raised specifically in the pleadings before the Executive Committee except in the general allegations, as follows: "Because of the many frauds and irregularities committed and the total departure from the mandatory provisions of the statute in the Kiln and Fenton Precincts, it was impossible to ascertain the will of the qualified."

II. We think that these flagrant violations of the Corrupt Practices Act should have been sufficient for the Trial Judge to have voided entirely the Kiln and Fenton Precincts without beating around the bush.

III. These violations and omissions rise to a higher degree than mere irregularities and are a fraud upon the sanctity of the Corrupt Practices Act and upon the appellant and contestant, Lander Necaise. These frauds were not only participated in by those charged with the holding of an honest and fair election, but as the proof shows, were participated in by the contestee, Jack Lott. No receipt for the regular blank ballots delivered to the managers in the ballot box as required by law, regular voter ballots initialed by the initialing manager prior to the voters signing the Receipt Book, allowing obviously illegal absent ballots to be cast without applying the law so provided, permitting the receipt and count of absentee ballots when the application affidavits and voter envelopes were pretended to be acknowledged by the contestee and appellee, Jack Lott, and without requiring that a seal be affixed thereto, together with the other points raised by the appellant and contestant in the Kiln and Fenton Precincts, if permitted to stand, will repeal the Corrupt Practices Act, not by legislative enactment but by judicial emasculation. Briggs v. Gautier, 195 Miss. 472, 15 So.2d 209; Guice v. McGehee, 155 Miss. 858, 124 So. 643, 125 So. 433; Hayes v. Abney, supra; Lopez v. Holleman, 219 Miss. 822, 69 So.2d 903; May v. Layton (Miss.), 56 So.2d 89.

W.J. Blass, Wiggins, for appellee.

I. The law does not require anyone to sign the Voters' Receipt Booklet for an absent voter. If it is signed by an election official or someone else, it is harmless error. Secs. 3164, 3203-01 — 3203-09, Code 1942.

II. Certain voters, voting in person, are entitled to have an election official sign for them. Hayes v. Abney, 186 Miss. 208, 188 So. 583; Shaw v. Burnham, 186 Miss. 647, 191 So. 484; Secs. 3164, 3272-3273, Code 1942.

III. The failure of the election managers to sign the tally sheets will not invalidate the returns of the precinct. Walker v. Smith, 273 Miss. 263, 57 So.2d 166; Secs. 3164, 3167, Code 1942.

IV. No harm resulted from the failure to enclose in the ballot box the receipt for the entire number of ballots received at the Kiln Precinct. May v. Layton, 213 Miss. 133, 56 So.2d 89; Walker v. Smith, supra.

V. The irregularities complained of with respect to absentee votes would not, of themselves, affect the result of the election, and they show no design on the part of the managers to influence the result of the election. Gregory v. Sanders, 195 Miss. 508, 15 So.2d 432; Hunt v. Mann, 136 Miss. 590, 101 So. 369-70; Walker v. Smith, supra.

VI. The initialing manager's initials are essential to the validity of the ballot but the election should not be invalidated because the initialing manager on some occasions endorsed a few ballots in advance of the voters signing the Receipt Book. Chinn v. Cousins, 201 Miss. 1, 27 So.2d 882; Shaw v. Burnham, supra; Sec. 3164, Code 1942.

VII. This case is not similar to, nor controlled by, the holding of this Court in the case of Lopez v. Holleman, 219 Miss. 822, 69 So.2d 903. Word v. Sykes, 61 Miss. 649; Sec. 3167, Code 1942.