Petition — Simpson v. O'Neal

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JAN 81 1978

} MICHAEL RODAK, JF :

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1977

No. 77 ; 583

Mrs. T. C. SIMPSON,

Petitioner,

HARL O’ NEAL,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MISSISSIPPI

CHARLES L. SULLIVAN

Davip R. HUNT

P.O. Box 1196

123 Court Street

Clarksdale, Mississippi 38614

Attorneys for Petitioner.

—ͤ—— —— — NR —— — TA AT RE —— Re I RRR I

Washington, O. C. THIEA PRESS - (202) 638-452)

TABLE OF CONTENTS

Page

GREED MT fcc cee ccc ese ce cece secsecese 1

JJ TITTLE TTL TTT TTT TTT 2

QUESTIONS PRESENTED ........... 565 2 6 2 „ 6660 2

CONSTITUTIONAL PROVISIONS AND

e ũ rn... eee 3

DUP See GE SUG vv 3

REASONS FOR GRANTING THE WRIT ............ 9

e eee eee eee ese eee 16

APPENDICES

A. Opinion of the Supreme Court of Mississippi .... 19

> EDs oc cece se eececeeesoeces 50a

C. Order of Supreme Court of Mississippi ......... 75a

Rn ccc cccccccces 76a

E. Order denying Petition for Rehearing ......... 79a

F. Applicable Constitutional Provisions and Statutes:

Fifth Amendment to the Constitution of

the United States of America qa 80a

Fourteenth Amendment to the Constitution of

the United States of America 80a

Section 5, Title 1, Voting Rights Act of

BOBS CGR TAB. BOFER ccc ccc cece cscccccess 80a

Section 23-5-187, Mississippi Code of

L 82a

Section 3273, Mississippi Code of

4 “Gc ecccccecosccecesce 83a

AUTHORITIES ;

Cases:

Allen v. Board of Elections, 393 U.S. 544 (1969) .... 9, 10

Armstrong v. Manzo, 380 U.S. 545 (1965) ........... 15

James v. Humphreys County Board of

Election Commissioners, 384 F. Supp.

.. . 4, 5, 6, 11, 14

Jones v. Moorman 327 So. 2d 198 (Miss., 1976) ....... 10

(ii)

Cases, continued: _Page

Lindsey v. Normet, 405 U.S. 56 (1972) 6 5 6 060 6 eves 15 IN THE g

Perkins v. Matthews, 400 U.S. 397 (19711777) 11 SUPREME COURT OF THE UNITED STATES

Shaw v. Burnham, 186 Miss. 647, 191 OCTOBER TERM, 1977

, — en a eb ˙²⁰ð x;vr; 20 11

Shields v. Utah Idaho C. R. Co., 305 U.S. No

e ̃ Ü —— ee ee ceed 15 :

State ex rel Sowell v. Greer, 158 Miss. 315,

D ẽ ew aed pang tae ll |

Thompson v. Brown, 434 F. 2d 1092

DE +t4 deb dec . cxéheae ee 10 Mrs. T. C. SIMPSON,

United States v. State of Louisiana, 265 F. Supp. Petitioner,

703 (E.D. La., 1966), aff'd 386 U.S. 2700000 13

Constitutional Provisions and Statutes: *

r d ¶ ̃ = Men 80a

, 80a HArRL O’NEAL,

Mississippi Code 1972 Annotated, Section 23-5-187 ... 82a

Respondent.

Mississippi Code 1942 Annotated (1956),

Section 3273 . 9 6 6 6 666 6 6 666060 82a

Voting Rights Act of 1965, Title 1, Section 5

r e 80a PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT CF MISSISSIPPI

Petitioner, Mrs. T. C. Simpson, prays that a Writ of

Certiorari issue to review the final order of the Supreme

Court of the State of Mississippi entered on November

| 2, 1977.

OPINION BELOW

The opinion of the Supreme Court of Mississippi is

reported at 350 So. 2d 998, and a copy of the opinion

is appended to this Petition.

x N e

JURISDICTION

The judgment of the Supreme Court of Mississippi

was entered August 31, 1977, and the final order of

that Court denying the Petition for Rehearing was

entered on November 2, 1977. The jurisdiction of this

Court is invoked under 28 U.S.C. 1257(3).

QUESTIONS PRESENTED

1. Does a clear and admitted change effected by the

Supreme Court of Mississippi in the election procedure

laws of Mississippi, which are embodied in clear and

unambiguous statutes, require, prior to enforcement,

the approval of the United States District Court for the

District of Columbia or the Attorney General of the

United States pursuant to Section 5 of Title I of the

Voting Rights Act of 1965 (42 U.S.C. 1973c)?

2. Does Section 5 of Title I of the Voting Rights

Acts of 1965 (42 U.S.C. 1973c) prohibit the

enforcement of the decision of the Supreme Court of

Mississippi that the provisions of Section 3273,

Mississippi Code of 1942, Annotated (1956) are

mandatory in view of the prior judicial construction

that the statue is directory?

3. Does the requirement by the Supreme Court of

Mississippi, as set forth in the judgment sought to

reviewed that an illiterate must publicly declare his

illiteracy to an election official constitute an impedi-

ment to the exercise of franchise rights by an illiterate

contrary to the Constitution of the United States of

America and the Voting Rights Act of 1965?

4. Does the rendition of judgment by the Supreme

Court of Mississippi on facts which were not at issue

and were irrelevant to the legal issues before the trial

———

„ „

court and on a finding of fact contrary to the verdict

of the trial jury violate Petitioner's right to due process

under the Constitution of the United States of

America?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The principal Constitutional provisions are the due

process clauses of the Fifth Amendment and the

Fourteenth Amendment and the privileges and im-

munities clause of the Fourteenth Amendment to the

Constitution of the United States of America. The

federal statute involved is the Voting Rights Act of

1965 and the relevant provision of that statute is

Section 5 (42 U.S.C. 1973c). The state statutes are

Section 23-5-187, Mississippi Code 1972, Annotated,

and Section 3273, Mississippi Code 1942, Annotated

(1956). The applicable constitutional provisions and the

relevant sections of the cited statutes are appended to

this Petition.

STATEMENT OF THE CASE

Petitioner was an independent candidate for Super-

visor, District I, Quitman County, Mississippi, in the

November, 1975, general election in. the State of

Mississippi. The Respondent was the Democratic

nominee for that office.

On the day of the election, the Petitioner in

accordance with the applicable laws of Mississippi, had

two poll watchers, Mrs. Fannie Smith and Mrs.

Elizabeth Daniels, at the Darling precinct in District I,

Quitman County, Mississippi. Shortly after the polls

opened on the morning of the election, one of these

two poll workers, Mrs. Fannie Smith, was asked by a

voter for assistance and Mrs. Smith began rendering this

assistance. The election officials conferred and deter-

mined that anyone who could not read or write (or was

blind or physically disabled) was entitled to assistance

from anyone of that voter’s choosing. Thereafter, when

a voter needed assistance he was allowed to choose

anyone to assist him, including either of the poll

watchers, for Petitioner.

The policy of allowing an illiterate voter assistance

from anyone of his or her own choosing is an election

procedure applicable to the counties within the

boundaries of the Northern District of Mississippi,

United States District Court, as a result of the mandate

of James v. Humphreys County Board of Election

Commissioners, 384 F. Supp. 114 (N.D. Miss. 1974).

The Petitioner was determined by the general

election commission of Quitman County, Mississippi, to

be the winner of the election by a margin of twelve

(12) votes, and Petitioner was certified by that

commission to the Secretary of the State of Mississippi

as the winner of the office and has occupied that office

since January, 1976.

Respondent filed his Petition pursuant to Section

23-5-187, Mississippi Code 1972 Annotated, in the

Circuit Court of Quitman County, Mississippi, con-

testing the election on grounds of several alleged

irregularities. Pursuant to the statute, the case was tried

at a regular term of the Circuit Court of Quitman

County, Mississippi, before a jury. The proof offered by

the Respondent in support of the allegations of his

Petition dealt only with the manner of assistance

rendered to illiterate voters, no proof being offered in

support of the other allegations of the contest.

There was no proof offered that anyone entered a

voting booth with any voter who had not requested

assistance from that person and there was no proof that

anyone rendering assistance failed to do exactly as

instructed or as requested by the voter. On the

contrary, the proof offered by the Respondent himself

was that every vote cast by someone receiving assistance

was cast in accordance with that voter’s wish and

intent. The Respondent's proof consisted of the

testimony of Petitioner, Respondent, five election

officials and six voters. Not one single witness testified

that any ballot was marked in any other manner that

exactly as intended by the voter. Not one single witness

testified that any person violated the secrecy of a ballot

by imposing his assistance on an unwilling voter. The

only evidence as to the number of voters receiving

assistance was an estimate of approximately 100, but

these were assisted by those of the voter’s own

choosing. This procedure of permitting assistance was

permitted by the election officials in the belief that

James v. Humphreys County Board of Election

Commissioners, 384 F. Supp. 114 (N.D. Miss., 1974)

required such procedure. The proof and the evidence

offered in the trial is detailed in the dissenting opinion

of presiding Justice Inzer appended to this Petition.

Upon conclusion of the presentation of evidence by

the Respondent, the jury was instructed to determine

whether the Respondent or the Petitioner received the

greatest number of legal votes. The jury returned its

verdict to the effect that the Petitioner received the

greatest number of legal votes and judgment was

entered thereon.

The Respondent appealed the judgment of the trial

court to the Supreme Court of Mississippi arguing that

Section 3273, Mississippi Code 1942 Annotated,

(1956) governed in its entirety the manner of assistance

for- illiterate voters in the election in question and that

James v. Humphreys County Board of Election

Commissioners, 384 F. Supp. 114 (N.D. Miss. 1974)

was based on faulty conclusions and therefore could

not be controlling. The thrust of the Respondent’s

argument before the Supreme Court of Mississippi was

that the procedures of Section 3273, Mississippi Code

1942 Annotated (1956) were mandatory in permitting

assistance to be rendered to illiterate voters only by the

managers of the election.

The Supreme Court of Mississippi in the majority

opinion concluded that the attempted repeal of Section

3273, Mississippi Code 1942 Annotated (1956) was

ineffective due to the failure to obtain the approval of

the repealing statute pursuant to Section 5 of the

Voting Rights Act of 1965 and that therefore that

Statute remains in full force and effect.

The Supreme Court of Mississippi next concluded

that Section 3273 violated the Fourteenth Amendment

to the United States Constitution inasmuch as it

permitted assistance to be rendered to illiterate voters

only by managers of an election in contrast to Section

23-5-157, Mississippi Code 1972 Annotated (1972)

which permitted assistance to be rendered to blind and

disabled voters by anyone of the voter’s choosing. The

Supreme Court of Mississippi concluded that there was

no rational basis for the distinction between illiterates

and blind and disabled voters and therefore illiterates

were entitled to the same assistance offered blind and

disabled voters. However, the Supreme Court further

determined that that portion of Section 3273 which

required illiterate voters to declare their inability to

mark their ballot to the managers of the election was

constitutional and therefore a valid and effective statu-

tory requirement with regard to assistance for illiterate

voters.

The Supreme Court of Mississippi next determined

that the Voting Rights Act of 1965, which has been

construed to require assistance to illiterates in marking

their ballot, and Section 3273 as construed and

modified by the Supreme Court of Mississippi were in

harmony. The Supreme Court of Mississippi then

concluded that the remaining provision of Section 3273

requiring the illiterate voter to declare his illiteracy to

the election manager was a mandatory provision and

that the illiterate voter must first request assistance from

the managers of the election.

The last issue, and perhaps the most important one

to this Petition, decided by the Supreme Court of

Mississippi in the instant case involved the scope of

judicial review of a contested general election. Since at

least as early as 1848, the statute in Mississippi for

- contesting a general election requires the contest to be

filed in the Circuit Court of the County in which the

election occurred and the sole issue to be determined is

which candidate received the greatest number of legal

votes, this issued to be tried by jury. That statute,

Section 23-5-187, Mississippi Code 1972 Annotated, is

appended to this Petition. Statutes also govern: the

contest of party primary elections and in Mississippi the

statute, Section 23-3-19, Mississippi Code 1972 Anno-

tated, as construed by the Supreme Court of

Mississippi, authorizes the special tribunal required to

be established to hear the case to throw out an entire

box or order another primary election to be held. Prior

to the instant case, all applicable decisions of the

Supreme Court of Mississippi noted that the statute

governing a general election contest permitted only one

issue to be decided in the case and that the remedy

permitted by the primary election statutes were not

applicable to the general election. In the instant case,

the Supreme Court of Mississippi, despite the clear

statutory mandates, could “discern no valid reason for

ordering a new election in a primary election contest

where a sufficient number of illegal votes are counted

which would change the result, or leave it in doubt, and

refusing to apply the same rule in a general election

contest.” (App. 41a). Therefore, the Supreme Court of

Mississippi decided the same rule would be applied in

general election contest as are set forth in the statutes

governing primary election contests.

Having decided that Section 3273, Mississippi Code

1942 Annotated (1956) required an illiterate voter to

request assistance of an election manager prior to that

voter’s receiving assistance, the Supreme Court of

Mississippi made a finding of fact that “more than 70

votes at the Darling precinct must be voided... .”

(App. 46a). The conclusion of the Supreme Court of

Mississippi was that enough illegal votes were cast to

change the result of the election. The Supreme Court of

Mississippi declared the office of Supervisor District I,

Quitman County, Mississippi, vacated and directed the

Board of Supervisors of that county to fill the vacancy®

and order a new election.

After the Supreme Court of Mississippi handed down

its decision in the instant case, Petitioner timely filed a

Petition for Rehearing together with a Brief in Support

of the Petition for Rehearing. A copy of Petitioner’s

Petition for Rehearing before the Supreme Court of

Mississippi is appended to this Petition. Inasmuch as the

issues presented on this appeal arise directly out of the

actions of the Supreme Court of Mississippi rather than

the trial court, the questions presented for review by

this Court of necessity were presented to the Supreme

Court of Mississippi through the Petition for Rehearing

before that Court. Questions 1 and 2 presented for

hearing before this Court, infra at p. 2, are contained

in paragraph 3 of the Petition for Rehearing. (App.

77a). The third question presented to the Court for

review by this Petition, infra at p. 2, is also contained

in paragraph 3 of the Petition for Rehearing, (app. 77a),

but was more fully set forth in the Brief in Support

of the Petition for Rehearing. The fourth question

presented for review by this Petition, infra at p. 2, is

set forth in paragraph 4 of the Petition for Rehearing

appended hereto. (App. 7a).

On November 2, 1977, the Supreme Court of

Mississippi without opinion issued its Order denying the

Petition for Rehearing.

REASONS FOR GRANTING THE WRIT

1. The Supreme Court of Mississippi has decided a

federal question of substance which apparently has not

heretofore been determined by this Court. The Supreme

Court of Mississippi in its judgment in the instant case

has ordered a change in a “standard, practice, or

procedure with respect to voting different from that in

force or effect on November 1, 1964...” contrary to

Section 5 of Title I of the Voting Rights Act of 1965,

codified as 42 U.S.C. Section 1973(c).

This Court, in Allen v. Board of Elections, 393 U.S.

544 (1969), interpreted Section 5 of Title I of the

Voting Rights Act of 1965 to cover just about any

enactment, standard, practice or procedure which in

any way involves the voting or election process. As

stated in Allen: “The legislative history on the whole

supports the view that Congress intended to reach any

state enactment which altered the election law of a

covered state in even a minor way.” It is clear from

reading Section 5 that required approval not only

applies to an enactment but also in any case where the

state or its political subdivisions seek to administer” a

change in any practice or procedure with respect to

voting.

It has been clearly held that a change in the process

by which an election is to be contested is such a

standard, practice or procedure covered by Section 5 of

the Voting Rights Act of 1965. Thompson v. Brown,

434 F.2d 1092 (5th Cir. 1970). Thompson in fact dealt

with an attempted change in the Mississippi statutes

governing a contest of a party primary election. The

Fifth Circuit Court of Appeals concluded that a change

in the method of contesting an election could not be

effected or enforced until compliance with the Voting

Rights Act of 1965. The Supreme Court of Mississippi

has also recognized that a change in the law governing

party primary elections was not enforceable until it had

been approved pursuant to the Voting Rights Act of

1965. Jones v. Moorman, 327 So. 2d 298 (Miss. 1976).

In this case, the Supreme Court of Mississippi has by

judicial pronouncement altered the statutory scheme of

election contests. The fact that it is the Supreme Court

of Mississippi seeking to administer this change in the

election laws does not remove the change from the

applicability of Section 5 of the Voting Rights Act of

1965. This Court has in a prior case prohibited the

enforcement of a change in a particular voting standard,

practice, or procedure which ultimately can only result

from a decree of the appropriate chancery court in

Mississippi, the chancery courts being courts of general

jurisdiction in that state. In that case, Perkins v.

Matthews, 400 U.S. 379 (1971), this Court held that

the enlargement of the corporate boundaries of the City

of Canton, Mississippi, was ineffective inasmuch as the

enlargement had not been submitted for approval

pursuant to Section 5 of the Voting Rights Act of

1965. In Mississippi, annexation of additional territory

by a municipality must be submitted to the appropriate

chancery court for review and the entry of a decree

authorizing the annexation.

In addition to the change in the laws governing an

election contest, the Supreme Court of Mississippi in

the instant case also seeks to administer a change in the

procedural provisions of the statute allowing assistance

to illiterate voters. In 1939, the Supreme Court of

Mississippi declared that Section 3273, Mississippi Code

1942 Annotated (1956) (then being Section 6244,

Mississippi Code of 1930) should not be given a strict

and literal construction: Shaw v. Burnham, 186 Miss.

647, 191 So. 484 (1939), held that that part of the

statute dealing with the notation on the ballots of

voters receiving assistance was directory and not

mandatory. This was in accordance with other decisions

of the Supreme Court of Mississippi to the effect that

procedural provisions and laws governing elections will

be considered directory if there has been a reasonable

attempt to abide by the law and no fraud has been

committed. See State ex rel Sowell v. Greer, 158 Miss.

315, 130 So. 482 (1930).

As noted by the United States District Court for the

Northern District of Mississippi in James v. Humphreys

County Board of Election Commissioners, 384 F. Supp.

114 (1974) at p. 129, elections were administered in

Mississippi with the belief that the state law which

provided for assistance to illiterate voters had been

repealed and that therefore no state law expressly

provided for such assistance. Thus elections, at least in

the northern district of Mississippi, were conducted on

this basis. Now, the Supreme Court of Mississippi seeks

to administer a change in the mechanics of voting by an

illiterate voter through its opinion and Order in this

case.

The changes sought to be effected by the Supreme

Court of Mississippi are clearly changes that would be

prohibited if proposed by the legislature of Mississippi

or some executive officer. The Voting Rights Act of

1965 should not be circumvented by permitting the

changes to be effected by the judicial branch of

government. This Court is thoroughly familiar with the

problems with the apportionment of the Mississippi

Legislature. Suppose the Supreme Court of Mississippi

were to devise a new apportionment plan in a judicial

proceeding attacking the existing plan. Would anyone

argue that the apportionment plan ordered by the

Supreme Court of Mississippi could go into effect

without approval pursuant to Section 5 of the Voting

Rights Act of 1965?

The changes in the election procedures in Mississippi

dictated by the Supreme Court of Mississippi in this

case cannot be made effective or enforced until

approved pursuant to Section 5 of the Voting Rights

Act of 1965. Therefore, the Supreme Court of

Mississippi cannot give effect to these dictated changes

by removing the Petitioner from office and ordering a

new election in Supervisor’s District One, Quitman

County, Mississippi.

2. The Supreme Court of Mississippi, by its denial of

the Petition for Rehearing, has in effect decided the

question of the validity under the Constitution of the

United States and the Voting Rights Act of 1965 of the

requirement that an illiterate must publicly declare his

illiteracy to an election manager prior to exercising his

franchise rights. This is a question which does not

appear to have been determined by this Court and is

contrary to the national policy of giving effect to the

right of all citizens to cast a free and unhampered

ballot.

As stated in United States v. State of Louisiana, 265

F. Supp. 703 (E.D. La. 1966), aff'd 386 U.S. 270:

Those few voters who do not trust their own

ability to cast a ballot effectively and are willing

to seek assistance are, under the Voting Rights Act

of 1965 as we read it, entitled to that assistance.

265 F. Supp. at p. 715.

Under the Voting Rights Act of 1965, an illiterate

voter is entitled to assistance. He should not be

hampered in obtaining that assistance by being required

to publicly declare his illiteracy. To impose such a

condition on the exercise of the franchise rights by an

illiterate is to abridge the privilege granted to illiterates

under the Voting Rights Act of 1965, all in violation of

the privileges and immunities clause of the Fourteenth

Amendment to the Constitution of the United States of

America.

3. The decision of the Supreme Court of Mississippi

to render judgment on a finding of fact contrary to the

verdict of the jury and on legal issues which were not

the subject of the trial of this cause in the trial court

denies the Petitioner due process of law under the Fifth

Amendment and the Fourteenth Amendment to the

Constitution of the United States. At the time this case

was being prepared for trial, elections in those counties

subject to the jurisdiction of the United States District

Court for the Northern District of Mississippi were

conducted in accordance with the opinion of that Court

in James v. Humphreys County Board of Election

Commissioners, 384 F. Supp. 114 (N.D. Miss. 1974).

Since 1965 it had been the belief of those conducting

elections within the State of Mississippi that Section

3273, Mississippi Code 1942 Annotated (1956) had

been repealed.

In addition, at the time of the trial the law was clear

and unquestionable that the Respondent would be

required to prove in this election contest that he

received the greatest number of legal votes cast in the

election. In other words, he would be required to prove

that at least 13 illegal votes were cast in favor of

Petitioner, Mrs. T.C. Simpson. There was no other

conceivable issue to be decided by the jury at the time

this case was being prepared for trial. With this in mind

the case was tried solely on that issue and all

cross-examination of Respondent’s witnesses was made

with the sole object of enlightening the jury on that

issue. The jury being properly instructed under the law

as it existed at the time of the trial found as a matter

of fact that the Petitioner received the greatest number

of legal votes. As stated by Justice Inzer in his

dissenting opinion, (App. 59a), “the jury was justified in

finding that the way the election was conducted did

not affect its outcome.”

Yet the Supreme Court of Mississippi found that

“more than 70 votes at the Darling precinct must be

voided. . . .” (App. 46a). The Supreme Court of

Mississippi made a finding of fact which the jury in this

case refused to make, which finding of fact was based

solely on an estimate presented by an election official

that approximately 100 people were assisted in voting.

However, record does not anywhere state that these

100 people in fact did not declare themselves to be

illiterate.

The rendition of judgment by the Supreme Court of

Mississippi on issues which did not exist in the trial

court and on findings of fact which were not the

subject of litigation in the trial court denies the

Petitioner due process. The Petitioner has been denied

an opportunity for a full hearing on the law and facts

which the Supreme Court of Mississippi has now

determined to be pertinent to this general election

contest. One of the essential elements of due process is

an opportunity for hearing. Shields v. Utah Idaho C.R.

Co., 305 U.S. 177. This Court has held that the

opportunity to have a hearing must be granted at a

meaningful time and in a meaningful manner. Arm-

strong v. Manzo, 380 U.S. 545. The Petitioner in this

case has not been granted a hearing at a meaningful

time when the issues to be decided and the facts to be

determined are set forth after the hearing is held.

Similarly, the Petitioner has not been granted an

opportunity for hearing in a meaningful manner when

the hearing is conducted on legal issues and factual

issues which are subsequently disregarded or modified.

The due process clause requires that the Petitioner be

given the right to raise issues or defenses to the claims

made against her. See Lindsey v. Normet, 405 U.S. 56.

Yet in the instant case the Supreme Court of Mississippi

has denied Petitioner the right to defend against the

issues which the Supreme Court of Mississippi now says

should have been the subject of the trial and upon

which the Supreme Court of Mississippi rendered

judgment.

The judgment of the Supreme Court of Mississippi

deprived the Petitioner of all rights, emoluments, and

profits of office with which she was vested by the

voters of Supervisor District I, Quitman County,

Mississippi. The rendition of judgment effecting this

deprivation of Petitioner’s rights denies her due process

and the judgment should be reversed by this Court.

CONCLUSION

For the reasons stated, Petitioner submits that the

Petition for Writ Certiorari should be granted.

Respectfully submitted,

CHARLES L. SULLIVAN

DAVID R. HUNT

P.O. Box 1196

123 Court Street

Clarksdale, Mississippi 38614

Attorneys for Petitioner.

Appendix

[998]

1999

APPENDIX A

Hari O’NEAL

Mra. T. C. SIMSON.

No. 50068.

Supreme Court of Mississippi.

Aug. 31, 1977.

Rehearing Denied Nov. 2, 1977.

Dulaney & Dulaney, J. W. Dulaney, Jr.,

William P. Dulaney, Tunica, for appellant.

Sullivan, Smith, Hunt & Vickery, David

R. Hunt, Clarksdale, for appellee.

EN BANC.

SUGG, Justice, for the Court:

This appeal arises from a contest of the

general election of November 4, 1975 filed

by Harl O’Neal, the Democratic nominee

for the office of Supervisor, District No. 1,

Quitman County. Mrs. T. C. Simpson quali-

fied as an independent candidate in the

general election following the defeat of her

husband, who was the incumbent supervi-

sor, by O’Neal in the Democratic primary.

Mrs. Simpson was declared the winner by a

margin of twelve (12) votes out of nine

hundred forty-two (942) votes cast and was

certified to the Secretary of State by the

Quitman County Election Commission as

such. She has occupied the office of Super-

visor since January, 1976.

Appellant filed his petition under Missis-

sippi Code Annotated section 23-5—187

(1972). The first trial resulted in a mistrial

and in the second trial the jury found that

Mrs. Simpson received the greater number

of legal ballots cast.

On the day before the general election of

November 4, 1975, Mrs. Simpson gave writ-

ten authority to Mrs. Elizabeth Daniels and

Mrs. Fannie Smith (hereinafter called poll

watchers) to act on her behalf at the Dar-

ling voting precinct. Mrs. Simpson testi-

fied that, although she appointed poll

watchers, she had no reason to distrust the

election officials, managers, clerks or bail-

iffs and admitted that she appointed the

poll watchers to support her candidacy.

The poll watchers did not challenge a single

voter throughout the voting.

The poll watchers assisted approximately

one hundred persons out of three hundred

fifth nine votes cast at the Darling precinct.

At the beginning of the voting a manager

1000] of the election noticed one of the poll

watchers inside a voting booth with a voter.

The manager asked the poll watcher to step

outside the booth while the managers as-

certained whether the assistance was prop-

er. After a conference the managers con-

cluded that the assistance was proper. One

of the managers at the Darling precinct

testified:

The way the rule was interpreted to us,

that anyone that wanted help could ask

anyone to go to the booth and help them

vote. And that was the way the thing

was interpreted to us and that’s the way

it went all day.

The poll watchers were permitted to assist

voters throughout the day and did not at

any time disobey the managers and con-

ducted themselves in an orderly fashion.

The managers of the election did not

make any effort to determine if voters were

entitled to assistance under applicable Mis-

sissippi statutes. To the contrary the man-

agers were under the belief that any. person

who desired assistance could receive it.

With the exception of one or two voters

who were blind or disabled and the voters

who announced that they were unable to

read, most of the voters who received as-

sistance by the poll watchers were permit-

— Ee n

ted to have assistance without declaring to

the managers that they were blind, physi-

cally disabled or unable to read. The rec-

ord shows that twenty-one voters were ap-

parently unable to write because their

names were written by a clerk who had the

voters place an X after their names.

Out of three hundred fifty nine votes cast

in the Darling precinct, Mrs. Simpson re-

ceived two hundred thirty-three and O'Neal

received one hundred twenty-six. The vote

in the entire supervisor’s district was as

follows:

Sledge Sledge

Atel Lai LTserling Total

Hari O’Neal 166 178 128 465

Mra. T. C. Simpson 124 120 233 471

PART I

The first question is, was the attempted

repeal of Section 3273 Mississippi Code of

1942 Annotated (Supp.1956) effective?

The statutes in Mississippi which provide

for assistance to voters are Sections 28-5

157 and 23-7-39 Mississippi Code of 1972

Annotated (1972) and Section 3273 Missis-

sippi Code of 1942 Annotated (Supp. 1956).

Section 237-99 applies only when voting

machines are used so the two sections which

apply here are as follows:

— —_

Section 235-157:

Any voter who declares to the mana-

gers of the election that, by reason of

blindness or other physical disability, he

is unable to mark his ballot, and whose

declaration is not palpably untrue, shall

have the assistance of one of the mana-

gers or other person of his own selection,

in the marking thereof; but such person

giving such assistance shall not give in-

formation in regard to the same.

Section 3273:

A voter who declares to the managers

of the election that by reason of inability

to read he is unable to mark his ballot, if

the same be true, shall, upon request,

have the assistance of a manager in the

marking thereof; and the managers shall

designate one of their number for the

purpose, who shall note on the back of

the ballot that it was marked by his as-

sistance; but he shall not otherwise give

information in regard to the same.

The legislature, by Miss. Gen. Laws Ch.

19 (Extraordinary Session 1965), attempted

to repeal Section 3273 Mississippi Code of

1942 Annotated (Supp.1956). Section 5 of

the Voting Rights Act enacted by Congress

in 1965 [42 U.S.C.A. § 1978¢ (1965)], pro-

vides that no political subdivision subject to

a a

110011

the Act may put into effect any voting law

or election practice different from that in

effect on November 1, 1964 without either:

(1) submitting the proposed change to the

Attorney General of the United States for

his approval; or (2) instituting an action in

the United States District Court for the

District of Columbia for a declaratory judg-

ment that the change sought to be put into

effect does not effectively deny or abridge

the right to vote on account of color. The

United States Supreme Court has held the

Voting Rights Act constitutional and that

any change in election procedure or prac-

tice, no matter how insignificant, must be

submitted for approval as required by the

Act before the change becomes effective.

Perkins v. Matthews, 400 U.S. 379, 91 S.Ct.

431, 27 L.Ed.2d 476 (1971); Allen v. State

Board of Elections, 398 U.S. 544, 89 S.Ct.

817, 22 L.Ed.2d 1 (1969); South Carolina v.

Katzenbach, 383 U.S. 301, 86 S.Ct. 808, 15

L.Ed.2d 769 (1966).

The Attorney General of Mississippi sub-

mitted the proposed repeal of Section 3273

Mississippi Code of 1942 Annotated (Supp.

1956) to the Attorney General of the United

States who disapproved the repeal of the

section. The State of Mississippi has nei-

— sat we Pe

ther sought a reconsideration from the

United States Attorney General nor sought

a declaratory judgment from the District

Court of the District of Columbia.

In two recent cases, Todd v. Smith, 331

So.2d 920 (Miss.1976) and Jones v. Moor-

man, 327 So.2d 298 (Miss. 1976), we held that

the attempted repeal of a statute was not

effective under Section 5 of the Voting

Rights Act unless approved by the Attorney

General or unless a declaratory judgment

was obtained as provided in the Act. We

held that the attempted repeal of Section

3148 Mississippi Code of 1942 Annotated

(Supp. 1956) was ineffective in view of the

Voting Rights Act. Our reasons are clearly

get forth in Jones, supra, and need not be

repeated in this opinion. |

[1] We therefore conclude that the at-

tempted repeal of Section 3273 Mississippi

Code of 1942 Annotated (Supp.1956) was

ineffective, and the statute remains in full

force and effect.

PART II

Having determined that Section 8273 is

in effect, our next inquiry is, does this

statute violate the Fourteenth Amendment

to the United States Constitution?

Under Mississippi statutes three classes

of voters are authorized to forego the secre-

cy of their ballot and to request assistance

in casting their ballot. These are the blind,

physically handicapped and illiterates. The

two statutes governing assistance to voters

where voting machines are not used are set

forth in full in Part I of this opinion.

These statutes were first enacted in 1892

and appear as Sections 3666 and 3667 of the

Code of 1892. The first section governs the

aid to blind or physically disable voters, the

second to illiterate voters. Blind and dis-

abled voters are permitted to have the as-

sistance of one of the managers of the

election or other person of the voter’s selec-

tion, while the statute governing illiterates

limits the assistance to a manager of the

election and further provides that the ballot

cast by an illiterate shall have marked on

its back that it was marked by assistance.

In all other respects the statutes are the

same and both statutes require the voter

requesting assistance to declare to the man-

agers of the election the reason such voter

is entitled to assistance.

When these statutes were originally en-

acted in 1892, we doubt that the legislature

gave any consideration to whether limiting

— ee

assistance to illiterate voters to a greater

degree than for blind and disabled voters

violated the Fourteenth Amendment to the

United States Constitution. At that time

the Fourteenth Amendment had not been

applied to the states in as many areas as it

now applies as a result of-decisions by the

United States Supreme Court within the

last two decades.

The United States Supreme Court has

held in a number of cases that states have

broad powers to determine conditions under

which the right of suffrage may be exer-

cised. In Carrington v. Rash, 380 US. 89,

85 S.Ct. 775, 13 L.Ed.2d 675 (1965) the

Court enunciated this principle in the fol-

[1002]

lowing language:

Indeed, ‘(t]he States have long been held

to have broad powers to determine the

conditions under which the right of suf-

frage may be exercised.’ Lassiter v. Nor-

thampton County Bd. of Elections, 360

U.S. 45, 50, 79 S.Ct. 985, 989, 3 L.Ed.2d

1072. Compare United States v. Classic,

313 U.S. 299, 61 S.Ct. 1081, 85 L.Ed. 1368;

Ex parte Yarbrough, 110 U.S. 651, 4 S.Ct.

152, 28 L.Ed. 274. ‘In other words, the

privilege to vote in a state is within the

jurisdiction of the state itself, to be exer-

cised as the state may direct, and upon

10a

such terms as to it may seem proper,

provided, of course, no discrimination is

made between individuals, in violation of

the Federal Constitution.’ Pope v. Wil-

liams, supra, 193 U.S. [621] at 632, 24

S.Ct. at [573] 575, [48 L.Ed. 817]. (380

U.S. at 91, 85 S.Ct. at 777, 778, 13 L.Ed.2d

at 677, 678.)

The Court also held in Bullock v. Carter,

405 U.S. 134, 92 S.Ct. 849, 31 L.Ed.2d 92

(1972) that every limitation or incidental

burden on the exercise of voters’ rights was

not subject to a stringent standard of re-

view, citing McDonald v. Bd. of Election

Com. of Chicago, 394 U.S. 802, 89 3. Ct.

1404, 22 L.Ed.2d 739 (1969). The particular

inquiry is, do the statutes which distinguish

between assistance available to illiterate

voters and that available to blind and dis-

abled voters violate the equal protection

clause of the Fourteenth Amendment.

In Carrington, supra, the Court stated:

But the fact that a State is dealing with

a distinct class and treats the members of

that class equally does not end the judi-

cial inquiry. ‘The courts must reach and

determine the question whether the clas-

sifications drawn in a statute are reason-

able in light of its purpose * * *°.’

—— — ———— EÄ2—————————————— —ͤ]y— — 4 —ûàC— ibi —

11a

McLaughlin v. State of Florida, 379 U.S.

184, 191, 85 S.Ct. 283, 288. (380 U.S. at

92, 98, 85 S.Ct. at 778, 13 L.Ed.2d at 678).

However, under the “rational basis test”

we see no reason for restricting assistance

of illiterates to election managers and per-

mitting blind or disabled voters to receive

assistance either from a person of their own

choice or from assistance from an election

manager. A blind or disabled voter may

also be illiterate, therefore a blind or dis-

abled illiterate could select a person other

than a manager of the election to assist in

marking his ballot, whereas, a sighted illit-

erate voter would not have this option.

We find no case on this question except

James v. Humphreys County Board of Elec-

tion Commissioners, 384 F.Supp. 114 (1974).

(See appendix at end of opinion.) In James

the Court stated:

Without doubt, the difference in assist-

ance allowed the several classes of voters

needing assistance was a question not

before the court in United States v. Mis-

sissippi, [256 F.Supp. 344] nor does it ap-

pear that plaintiffs’ contentions have

ever been elsewhere raised or decided in

state or federal decisions interpreting the

state’s election laws. Also, since the 1966

12a

decision in United States v. Mississippi,

the Mississippi legislature has continued

to provide no statutory regulation for

assisting illiterate voters, despite a re-

quirement for such voter assistance in the

Voting Rights Act. United States v.

Louisiana, 265 F.Supp. 708 (E. D. La. 1966),

aff'd 386 U.S. 270, 87 S.Ct. 1023, 18

L.Ed.2d 39. It has remained, until now,

an open and unsettled question whether

distinctions can be validly practiced by

election managers in the type of assist-

ance provided to different classes of vot-

ers needing assistance at the polls. We

are not persuaded that the Fifth Circuit’s

rationale in Sands v. Wainwright, 491

F.2d 417 (1973), requires the convening of

a three-judge court uuder 28 U.S.C.

§ 2281 to resolve this issue. Since the

repeal of § 3273, no settled statewide

practice or policy in assisting illiterate

voters can be said to exist, and defend-

ants do not contend otherwise. Further,

if impermissible distinctions among

classes of assisted voters should be found

to exist on a statewide basis, constitution-

al defense thereof would be frivoious in

the light of Dunn [405 U.S. 330, 92 S.Ct.

995, 31 L.Ed.2d 274] and McLaughlin, su-

pra.

[1003]

13a

Further, if such a showing were made,

the distinctions which obtain could pro-

duce untoward results. The blind illiter-

ate may receive outside assistance, but

the illiterate with sight may not; and the

illiterate voter, also physically disabled

and presumably more helpless, can re-

ceive the outside assistance denied to the

illiterate voter without physical impair-

ment. Thus, any elassification between

physically disabled voters and illiterate

voters, in terms of who may render as-

sistance at the polls rests upon unclear, if

not dubious reasoning.

We hold that no compelling reason ex-

ists for the election officials in Hum-

phreys County to adhere to practices

which distinguish between voter assist-

ance offered to illiterates and that al-

lowed to the blind ad disabled. Since

Mississippi's election laws expressly per-

mit optional assistance for the blind and

disabled voters, the Fourteénth Amend-

ment mandates that like optional assist-

ance be extended to illiterate voters.

(384 F.Supp. at 131, 132).

[2,3] We are of the opinion that the

“compelling state interest test” would not

l4a

apply because, (1) the statute under consid-

eration has for its purpose, not abridging

the right to vote, but enabling illiterates to

vote, and (2) racial discrimination is neither

charged nor present in this case. However,

under the “rational basis test” we conclude

that this distinction violates the equal pro-

tection clause of the Fourteenth Amend-

ment. We hold that illiterates are entitled

to the same assistance offered blind and

disabled voters for the reasons discussed in

Part III of this opinion. Our next inquiry

is, whether the entire statute is constitu-

tional or does part of it survive constitu-

tional scrutiny?

[4] When considering whether a statute

is constitutional or not, we follow the rule

that part of a statute may be declared

constitutional and part unconstitutional.

In Wilson v. Jones County Board of Super-

visors, 342 So.2d 1298 (Miss.1977) we stated:

It is the Court’s duty.in passing on the

constitutionality of a statute to separate

the valid from the invalid part, if this can

be done, and to permit the valid part to

stand unless the different parts of the

statute are so intimately connected with

and dependent upon each other as to war-

rant a belief that the legislature intended

them as a whole, and that if all cannot be

. — —

15a

carried into effect it would not have en-

acted the residue independently. Howell

v. State, 300 So. 2d 774, 781 (Miss. 1974);

American Express Co. v. Beer, 107 Miss.

528, 536, 65 So. 575 (1914); Adams v.

Standard Oil Co., 97 Miss. 879, 58 So. 692

(1910); Campbell v. Miss. Union Bank, 7

Miss. 625 (1842). (342 So.2d at 1296).

[5} The rule as stated above is simply

another way of saying where part of a

statute is valid and another part invalid, the

presumption arises that the legislature in-

tended to enact the valid part if it is sepa-

rate and distinct from the invalid part and

is not dependent on the invalid part. We

bold that the provision of the statute which

requires illiterates to declare their illitera-

cy, in the same manner that blind and dis-

abled voters are required to declare their

disability, meets constitutional muster and

serves the compelling state interest of pre-

serving the secrecy of the ballot. Secrecy

of the ballot cannot be waived except by

blind, disabled or illiterate voters and then

only to the extent of having assistance in

managers of the election that they come

within the statutory exceptions. We hold

the requirement that voters declare their

BEST COPY AVAILABLE

[1004]

l6a

inability to mark their ballot to the mana-

gers of the election is mandatory for the

reasons stated in Part IV of this opinion.

[6} We therefore hold that Section 3278

is constitutional in part. We declare invalid

the provision of Section 3273 limiting assist-

ance to illiterates by managers only and

requiring that their ballots have noted

thereon “marked with assistance” because

these provisions do not apply to blind and

disabled voters under Seetion 23—5—157 Mis-

sissippi Code of 1972 Annotated (1972). II-

literate voters, like blind and disabled vot-

ers, a8 a prerequisite to obtaining assistance

in marking their ballots, must declare their

inability to mark their ballot to the mana-

gers. The managers are vested with the

discretion of determining the truth or falsi-

ty of the reason claimed by any voter for

assistance in marking his ballot, whether

occasioned by blindness, physical disability

or illiteracy. We are confident that mana-

gers of the elections will exercise this dis-

cretion fairly so that all who qualify for

assistance in marking their ballots will re-

ceive assistance and those who do not quali-

fy for assistance in marking their ballots

will not be permitted to receive assistance.

Of course, arbitrary refusal of assistance to

— R= Ry ee

17a

those entitled, or arbitrarily granting assist-

ance to persons who are not entitled there-

to, is subject to judicial review, provided

such action involves a sufficient number of

ballots to change the result of an election or

to leave the issue thereof in doubt.

PART III

Having determined that Section 3273 is

constitutional in part, we must next con-

sider whether it is superseded by the Voting

Rights Act of 1965, or whether the state

statute and the federal statute are in har-

mony and both apply to elections in Missis-

sippi with respect to aid to illiterate voters

in marking their ballots.

Three cases have been cited which speak

to the question of assistance that may be

given under the Voting Rights Act to illit-

erates participating in Mississippi elections.

Hamer v. Ely, 410 F.2d 152 (5th Cir. 1969);

James v. Humphreys County Board of Elec-

tion Commissioners, 384 F.Supp. 114 (U.S.

Dist.Ct., Northern Div. Miss.1974); United

States of America v. State of Mississippi,

256 F.Supp. 344 (U.S.Dist.Ct., Southern Div.

Miss. 1966).

These three cases were tried before our

cases of Todd, supra, and Jones, supra, and

18a

were decided on the premise that the at-

tempted repeal of Section 3273 was effec-

tive. It does not appear that the argument

was made before any of the federal courts

involved that the attempted repeal of the

Mississippi statute was ineffective.

In each of the cases, the courts construed

42 U.S.C.A. § 1973] (ex) (1965) which is as

follows:

The terms ‘vote’ or ‘voting’ shall in-

clude all action necessary to make a vote

effective in any primary, special, or gen-

eral election, including, but not limited to,

registration, listing pursuant to this sub-

chapter, or other action required by law

prerequisite to voting, casting a ballot,

and having such ballot counted properly

and included in the appropriate totals of

votes cast with respect to candidates for

public or party office and propositions for

which votes are received in an election.

All three of the federal cases cited above

held that the obvious intent of the Voting

Rights Act was to assure, not only registra-

tion, but the full exercise of the right to

vote including assistance to illiterates in

marking their ballot. The federal courts,

believing that Section 3273 had been re-

pealed, leaving no provision in the Missis-

19a ~

sippi statutes for assistance to illiterates,

were faced with the task of fashioning a

remedy within the provisions of the Voting

Rights Act to provide assistance to illiter-

ates in marking their ballot. Indicative of

this common purpose that runs throughout

these three cases, the Fifth Circuit Court of

Appeals stated in Hamer, supra, the follow-

ing:

This requirement of voter assistance

stems from the Voting Rights Act, specif-

ically 42 U.S.C.A. § 1973/(cX1) which

defines the terms ‘vote’ and ‘voting’ as

including ‘all action necessary to make a

vote effective * * As the three-

judge court said in United States v. State

of Louisiana, E.D.La.1966, 265 F.Supp.

708, 708, aff'd 386 U.S. 270, 87 S.Ct. 1023,

18 L.Ed.2d 39:

‘We cannot impute to Congress the

self-defeating notion that an illiterate

has the right [to] pull the lever of a

voting machine, but not the right to

know for whom he pulls the lever.’

In light of this requirement, it becomes

“ the duty and responsibility

of the precinct officials at each election

to provide to each illiterate voter who

may request it such reasonable assist-

ance as may be necessary to permit

[1005]

20a

such voter to cast his ballot in accord-

ance with the voter’s own decision.’

United States v. State of Mississippi,

S.D. Mississippi 1966, 256 F.Supp. 344,

349.

The appellants’ position, then, is that

the use of only white poll assisters was

not ‘reasonable assistance’ in the circum-

stances prevailing at the Sunflower elec-

tion.

The Sunflower election was governed

by the Declaratory Judgment entered in

the case of United States v. State of

Mississippi, supra, and not by any Missis-

sippi statute. The Mississippi statute

dealing with poll assistance was repealed

in 1965.

The action of the Sunflower Election

Commissioners, however, was in compli-

ance with the statute as it stood before

its repeal. In light of the order in United

States v. State of Louisiana, supra, which

was tailored to the precise terms of a

repealed Louisiana voter assistance stat-

ute, the action of the Election Commis-.

sioners in the present case, tailored to the

terms of a repealed Mississippi statute,

would appear to be reasonable.

—— — — —

21a

Voters may be motivated by reasons

other than fear for not seeking voter

assistance, and they have at their disposal

a variety of measures to cast their votes

without it. Thus, in United States v.

State of Louisiana, E.D. Louisiana, 265

F.Supp. 708, 715, the court said:

There are varying degrees of illitera-

cy, and varying degrees of voter intelli-

gence among functionally illiterate

electors. Many illiterates are able to

respond to symbols and numbers; oth-

ers will memorize the positions on the

ballot of those for whom they wish to

vote. Still others, even if unable to do

these things, are willing to take their

chances rather than reveal their choices

to polling officials. Nonetheless, those

few voters who do not trust their own

ability to cast a ballot effectively and

are willing to seek assistance are, under

the Voting Rights Act of 1965 as we

read it, entitled to that assistance.

(Emphasis supplied.)

(410 F.2d at 155-156).

[7] As we view it, there is no conflict

between the Voting Rights Act, the three

federal cases cited in Part III, and Section

3273. The federal cases provided for assist-

22a

ance to illiterates because the courts were

of the opinion that the Mississippi statute

providing for assistance to illiterates had

been repealed. In addition, the privilege of

assistance was extended to a broader class

of illiterates under the Voting Rights Act

than permitted by Section 3273. The Mis-

sissippi statute (Section 3273) authorizes as-

sistance only to voters who are unable to

read, but does not include voters who may

be able to read, but because of their func-

tional illiteracy do not know how to mark a

ballot for the candidates of their choice. In

sum, the federal courts have construed the

Voting Rights Act to authorize assistance to

the latter class of illiterates. We are in

accord with this construction and hold that

the Voting Rights Act and Section 3273 are

in harmony and exhibit a common purpose

of providing assistance to illiterates in

marking their ballots.

PART IV

The next question is whether assistance

may be rendered to any voter who requests

it, or are the statutes requiring a voter to

state the reason for his disability to the

manager of the election a mandatory pre-

requisite to receiving assistance in marking

his ballot?

[1006]

23a

[8] One of the primary purposes of laws

regulating elections is to secure to a voter

the right to cast his vote in secret. Secrecy

of the ballot relieves the voter from every

influence inimical to vote as he desires; it

insures the independence of the voter as he

exercises one of the most precious privileges

granted under our system of government;

and it is a safeguard to the purity of elec-

tions. In the case of Board v. Dill, 26 Okl.

104, 110 P. 1107 (1910) the Oklahoma Court,

in a well reasoned opinion summarizing

cases from other jurisdictions discussing the

necessity of preserving the right to cast a

secret ballot, stated:

By this it will be seen that we are

again confronted with the eternal moot

of whether an election statute is manda-

tory or directory. The perpetuity and

virtue of popular government can only be

secured and maintained by providing for

the independence of the electors upon

whose consent and will it exists. Wide-

spread charges of improper influence,

bribery, and corruption committed on the

occasion of elections in many of the states

of the Union, bringing in their wake de-

feat of the popular will and success to the

corrupt schemes of designing men,

brought about the election reform known

24a

as the Australian ballot system. Elec-

tions prior to it were held by an open

ticket system under which secrecy was

almost, if not quite, impossible, and de-

pendent or corrupt voters were equally at

the mercy and under the control of those

who would use them for corrupt ends.

The Court of Appeals of New York, in

the case of People ex rel. v. Board of

Canvassers, etc., 129 N.Y. 395, 29 N.E.

327, 14 L.R.A. 624, says: ‘We know that

the principal mischief which the statute

was intended io suppress was the bribery

of voters at elections, which had become

an intolerable evil, and this was to be

accomplished by so framing the law as to

enable, if not compel, the voter to exer-

cise his privilege in absolute secrecy.’

The Supreme Court of Michigan, in the

case of Common Council, etc., v. Rush, 82

Mich. 532, 46 N.W. 951, 10 L.R.A. 171,

says: “The secrecy of the ballot is the

great safeguard to the purity of elections.

The vote by ballot implies secrecy. This

secrecy should not be confined to the time

of depositing the ballot. It should accom-

pany the voter through all the steps pro-

vided for the preparation of his ballot.

Only in this way can he be freed from all

intimidation, improper influences, re-

25a

proach and animadversion. When all

knowledge of how he voted is the voter's

own secret unless he chooses to divulge it,

he is fully protected, and a free and hon-

est vote will very uniformly be the re-

sult.’

The Supreme Court of Appeals of Vir-

ginia, in the case of Pearson et al., v.

Board of Supervisors, etc., 91 Va. 322, 21

S.E. 483, says: ‘The object is to relieve

the voter from every influence inimical to

a free and deliberate exercise of the right

of suffrage, to free him from all solicita-

tion and annoyance, and to leave him a

perfectly free agent to vote as to him

seems best. These provisions seem to be

not only reasonable, but well adapted to

secure the end in view, so far as the voter

is concerned who is able to prepare his

own ballot. He goes to the judges, he

receives an official ballot printed by au-

thority of the state, upon which is found

every office to be filled and every candi-

date for that office, whose name has been

filed in accordance with the requirement

of the law, and he retires to a booth

where he is curtained off and secluded

from all the world. No eye can see him

and no ear can hear him, no evil agency

can approach him, and, with these envi-

26a

ronments, he prepares his ballot, folds

and delivers it to the judge, who, in his

presence, places it in the ballot box.* *

The general scheme of the law is to se-

cure the independence of the voter by

secluding him within an isolated booth,

surrounded by a neutral zone, within

which none may enter save those charged

with conducting the election.’

Thus it is seen that the general scheme

of the system is to secure the independ-

ence of the voter by requiring him to cast

his vote in secret. Secrecy is the funda-

mental underlying primary essential of

the system and is the one element and

condition which, paramount to all others,

cannot be destroyed without destroying

the reform intended, and re-establishing

the evils it was designed to correct. Stat-

utes which make, even incidentally, for

its preservation and inviolability, are sel-

dom directory and without exception,

where the language will admit of it, are

held to be mandatory. Yet, great as the

demand for secrecy is, it is manifest that

there is a point beyond which it may be

carried, and qualified electors will be vir-

tually disfranchised unless assisted, and

the end to be attained defeated by the

1007

27a

means provided. (Emphasis supplied).

(110 P. at 1110-1111).

Our legislature has enacted various stat-

utes for the purpose of safeguarding and

insuring secrecy of the ballot. A summary

of some of these statutes follows. Election

officials are subject to punishment for

opening and reading or consenting to any

other person opening and reading any ballot

given to them to be deposited in the ballot

box; ! a person may not remove any ballot

from a voting place before the polls close; ?

an election official or other person, except

as authorized by law, may not aid, assist or

influence a voter in preparing a ballot, or

attempt to do so;* managers and clerks of

an election are required to take an oath

that they will faithfully perform their

duties according to law and will not at-

tempt to guide, aid, direct or influence any

voter in the exercise of his right to vote

except as expressly allowed by law;‘ a

1. Section 97-13-5 Mississippi Code of 1972 An-

notated (1972)

2. Section 97-13-13 Mississippi Code of 1972

Annotated (1972)

3. Section 9713-3 Mississippi Code of 1972 An-

notated (1972)

4. Section 23-5-103 Mississippi Code of 1972

Annotated (1972)

28a

voter may not occupy a voting compart-

ment already occupied by another voter and

each voter is required to fold and hand his

ballot to one of the managers of the elec-

tion for deposit in the ballot box without

undue delay after he has voted.’ Finally,

to free a voter from coercion or intimida-

tion in marking his ballot, to free him from

divulging how he voted, and to protect his

right to vote as he desires, the legislature

enacted Section 235-159 Mississippi Code

of 1972 Annotated (1972) which follows:

Any voter who shall, except as herein

provided, allow his ballot to be seen by

any person, or who shall make a false

statement as to his inability to mark his

ballot, or who shall place any mark upon

his ballot by which it can afterwards be

identified as the one voted by him, or any

person who shall interfere or attempt to

interfere with any voter when inside the

compartment or inclosed place, or when

marking his ballot, or who shall endeavor

to induce any voter, before voting, to

show how he will mark, or after voting

how he has marked his ballot, shall be

punished by a fine of not less than twen-

5. Section 23-5-151 Mississippi Code of 1972

Annotated (1972)

29a

ty-five dollars nor more than one hundred

dollars; and the election officers shall

cause any person so violating the law to

be arrested and carried before the proper

officer or tribunal for commitment and

trial for such offense.

The overriding purpose of the above stat-

utes is to insure that voters may not be

deprived of the right to vote in secret and

demonstrate the statutory safeguards pro-

vided in an attempt to guard the secrecy of

the ballot. The statutes were enacted so

that we might have fair and free elections

which express the will of the voters. The

secrecy of the ballot is a right personal to

the voter and he cannot be deprived of this

right. His ballot cannot be exposed except

out of necessity as the result of a condition

of the voter which precludes him from cast-

ing his ballot without assistance, and then

only when the voter himself describes the

condition and requests the assistance pro-

vided by law.

In 29 CJ.S. Elections § 208(b) at 571

(1956) the textwriter stated:

In order to preserve secrecy in voting,

legislatures have thrown safeguards

around the right to assistance which are

designed to aid those voters genuinely

[1008]

30a

handicapped, to protect those who are

vulnerable to pressure, and to deter those

persons who would exploit the electorate.

Statutory provisions sometimes require

an oath or declaration of the voter as to

his disability or other ground for assist-

ance as a condition precedent to the ren-

dering of assistance. The purpose of

such statutory provisions is to prevent

fraud at elections. (Emphasis supplied).

In Brooks v. Crum, 216 S.E.2d 220 (W.Va.

1975) the West Virginia Court had under

consideration statutes of that state regulat-

ing assistance to illiterates and physically

disabled voters. The West Virginia statute

requires that active assistance to voters by

election officials may be given only when

the statutory prerequisites have been met.

The court held that where mandatory pre-

conditions prescribed by statute are not sat-

isfied before assistance is extended to vot-

ers by election officials, it is active assist-

ance per se, rather than the actual effect

upon voters free choice which is unlawful.

In Crum the West Virginia court stated:

The second and third issues, concerning

what voters are entitled to assistance by

election officials while casting their bal-

lots, and whether otherwise legal votes

31a

are voided by assistance from officials to

voters unqualified to receive assistance,

raise matters not previously decided by

this Court.

A reading of these two provisions clear-

ly indicates that active assistance to vot-

ers by election officials may be permitted

only when the statutory prerequisites

have been met. The only significant dis-

tinction between W. Va. Code 1931, 3—1-

34, as amended, and W. Va. Code 1931, 3

4-21, as amended, is that the former

deals with votes cast upon written bal-

lots, while the latter deals with votes cast

upon voting machines.

In both sections, a necessary precondi-

tion to rendering assistance to voters is

that their illiteracy must be shown un-

equivocally on the face of the voters’

registration. Where no recordation of il-

literacy is found thereon, and where an

obvious physical disability which would

prevent the voter from operating the ma-

chine is not present, no discretion is given

election officials. They are without legit-

imate authority, whether requested by

the voter or not, to enter the voting ma-

chine with him or to assist him in casting

32a

his vote. If further demonstration of the

legislative intent is necessary, one need

only examine W. Va. Code 1981, 3-4—14, as

amended, which provides the procedure

for assisting and instructing voters unfa-

miliar with electronic voting equipment,

and W. Va. Code 1931, 3-4—22, as amend-

ed, which mandates: ‘[N}o person other

than the voter alone may be in, about or

within five feet of the voting machine

during the time such voter is in the proc-

ess of voting at any election, and, during

such time, no person may communicate in

any manner with the voter

except as specifically provided by statute.

Clearly the n Aun 18

fested by enactment of both statutes was

to insure each voter a free and deliberate

exercise of his right to suffrage, prevent-

ing possible solicitation or interference in

the exercise, and leaving him free to vote

as he deems best. Quoting from Cooley’s

Cons.Lim. 757, this Court in Daniel v.

Simms, 49 W.Va. 554, 39 S.E. 690 (1901),

stated:

‘All such reasonable regulations of

the constitutional right [to vote] which

seem to the legislature important to

33a

the preservation of order in elections,

to guard against fraud, undue influ-

ence, and oppression and to preserve

the purity of the ballot box, are not

only within the constitutional power of

the legislature, but are commendable

and at least some of them absolutely

essential.’ Id at 574, 39 S.E. at 698.

While we recognize the general rule

that presumptions favor generally the

correctness of action on the part of elec-

tion authorities and specifically the regu-

larity of votes cast and counted, we are

equally cognizant of the legislative de-

mand that certain protections are neces-

sary for the preservation of the integrity

and sanctity of the elective process .

If appellants have offered sufficient

proof of their charges that assistance was

given by election officials to voters who

were not qualified to receive assistance,

then their votes must be voided. (216

S.E.2d at 224, 225).

Without dispute, the evidence supports

the conclusion that the activities of the poll

watchers in rendering assistance to voters

violated the provisions of Section 3273. Of

the one hundred or so voters, only a few

[1009]

34a

declared their inability to read, their physi-

cal disability or their blindness to the elec-

tion managers themselves. One or two

blind or disabled voters were assisted so the

only justification for rendering assistance

to the remaining ninety-eight voters would

be that they were illiterate. There were

only twenty-one voters who could not write

their own names and no effort was made to

ascertain the reason for assistance being

rendered to more than seventy other voters.

The purpose for requiring a declaration by

a voter to the election officials of his inabil-

ity to read, his blindness or his physical

disability, rendering him unable to mark his

ballot is to protect the voter himself and to

preserve the secrecy of his ballot.

If election officials permitted all voters to

have assistance in marking their ballots,

without regard to whether the voter is enti-

tled to assistance, secrecy of the ballot

would be destroyed, voters would be subject

to coercion and undue influence, utter con-

fusion would exist at the polling places and

the opportunity for fraud would be unlimit-

ed. If a candidate wanted to buy a vote he

could insure that the vote was cast in his

favor by the simple expedient of having a

partisan poll watcher or other person mark

— —

35a

the ballot of the voter. In this case the

wrong was compounded by the fact that

partisan poll watchers appointed by Mrs.

Simpson were permitted to assist voters

without regard to whether the voters were

entitled to assistance. This situation can-

not be tolerated and should be stopped be-

fore the opportunity for widespread corrup-

tion infects our elections.

[9] We hold that before any voter may

receive assistance in marking his ballot, he

must first request assistance from the man-

agers of the election who must be satisfied

that the voter is either blind, physically

disabled or illiterate and needs assistance in

marking his ballot. We are of the opinion

that the legislative protections insuring the

secrecy of the ballot are mandatory and are

necessary for the preservation of the integ-

rity of the election process; therefore, all

voters are not entitled to assistance in

marking their ballots, but only the blind,

physically disabled or illiterate may receive

assistance in marking their ballots.

PART V

The last issue involves the scope of judi-

cial review of a contested general election.

36a

Pradat v. Ramsey, 47 Miss. 24 (1872) in-

volved a contested general election in Har-

rison County and is the first case which

discussed the scope of judicial review in

general election cases. The Court stated:

The fundamental principle to which the

judiciary look, is whether the election has

had a termination, according to the will

of a plurality, or majority of those quali-

fied to vote.

Irregularities of the officers of election,

such as not being properly sworn, not

being de jure appointed, or qualified, hav-

ing no other right than being de facto

incumbents, a failure to appoint subordi-

nate assistants, such as a clerk, securing

votes, after the outer door of the room

had been closed, and from those who re-

mained within, (voters not being thereby

deprived of their rights,) or other failure

to follow the law, will not vitiate the

election. The people who are electors,

should not be deprived of the benefit of

their votes, because those whose duty it

was to hold the election, were ignorant,

incompetent, or wilfully failed in some

particulars to do their duty. Nor should

the successful candidate lose his office,

because of the misconduct of these offi-

cials, if he is free from complicity with

ä — — —

[1010]

37a

them, and has not gained the office by

reason of such misbehavior.

If the election was held at the proper

time and place, and under the supervision

of competent persons, irregularities

which concern merely the form of con-

ducting it will not avail; it must be

shown that legal votes have been reject-

ed, or illegal votes have been received,

and that because of the one or the other,

or both, the result does not conform to

the will of the voters, or uncertainty has

been case upon the result ;

But if the matter offered went merely to

prove an irregularity in the registrars,

inspectors, or canvassers, some omission

to follow the letter of the law, in a mat-

ter directory merely, its admission would

in no wise help the contestant. It was

incumbent on him, in order to overcome

the prima facie case, which the certificate

of the canvassers of the ballots created,

to show that illegal votes were given to

Ramsey, or legal votes excluded from

himself, or some other reason, which

would establish that he was entitled to

the office

38a

The statute seems to confine the in-

quiry to the question of who received a

majority of legal votes

The theory of the plaintiff was, that

omissions and irregularities, and errors of

judgment by those charged with registra-

tion, holding the election, and canvassing

the ballots, would make the election ille-

gal, and demonstrate that Ramsey had no

title to the office. Hence his several

offers to make proof on these points, the

circuit court disagreed with him, and

ruled that the test of his right under the

issue was, whether a majority of legal

votes preferred him for the office, and

therefore he must prove that qualified

voters were rejected, and illegal ballots

received, which would change the result.

(47 Miss. at 34, 35, 37, 38, 39).

The case first holds that a contestant

must show that legal votes have been re-

jected or illegal votes received and that

because of one or the other, or both, the

result of the election does not conform to

the will of the voters, or uncertainty has

been cast upon the results. It is then noted

the statute seems to confine the inquiry to

the question of who received a majority of

39a

the legal votes and that a contestant must

overcome the prima facie case granted by

the certificate of canvassers of the ballots.

Pradat v. Ramsey has been followed in a

number of cases holding that the inquiry

in a general election contest is confined to

the question of who received a majority of

the legal votes. We find no further men-

tion of the first proposition pertaining to

uncertainty being cast upon the results of

the election because illegal votes were re-

ceived and counted except in Trahan v.

Simmons, 191 Miss. 353, 2 So.2d 575 (1941).

Four votes separated the two candidates in

Trahan and it was stipulated that twenty-

two illegal votes were cast and counted

which were included in the total certified

by the election commissioners. The Court

stated:

It was distinctly announced by this

Court in Hayes v. Abney, 186 Miss. 208,

188 So. 533, 585, that ‘where enough ille-

gal votes were cast to change the result

or leave it in doubt, the election is void.’

6. Word v. Sykes, 61 Miss. 649 (1884); Sproule

v. Fredericks, 69 Miss. 898, 11 So. 472 (1892);

May v. Young, 164 Miss. 35, 143 So. 703 (1932);

Lopez v. Holleman, 219 Miss. 822, 69 So.2d 903

(1954); Hubbard v. McKey, 193 So2d 129

(1966).

40a

The rule as stated, whatever may be its

ultimate effect, is applicable, however,

only when the attorney general or district

attorney has, in such a case, instituted an

action in quo warranto, solely in the

name of the State, to oust a person who

has intruded himself into office under an

election void for the stated reason. It

can have no application in an election

contest between the candidates wherein

the candidate certified as having lost

seeks, not to avoid the election, but to

avail of it and to show by his contest that

in fact he was elected by the majority of

the qualified voters who voted. In such a

contest he has the burden of the proof;

and manifestly this is not met simply by

showing that enough illegal votes were

cast to change the result or leave it in

doubt.

And the contestant in making his proof

cannot be allowed to place on the witness

stand the qualified voters and show by

them for whom they voted. Under our

secret ballot system a qualified voter can-

not be thus interrogated. But this ex-

emption does not belong to an illegal

voter. Such a person is not a voter, and

his wrongful assertion and exercise of the

[1011]

4la

privileges of a voter do not make him

such. An extended examination of the

authorities, many of which are noted in

20 C.J., pp. 246, 247, when read in the

light of the implications in Kelly v. State,

79 Miss. 168, 30 So. 49, has convinced us

that an illegal voter may be summoned as

a witness and be put on the stand and

compelled to disclose for whom he cast

his illegal ballot. (191 Miss. at 355, 356;

2 So.2d at 575).

In Trahan the Court cited Hayes v. Ab-

ney, supra, as authority for the proposition

that where enough illegal votes were cast

to change the result, or leave it in doubt,

the election is void. The Court then held

that the rule applied only in quo warranto

proceedings but cited no authority for this

conclusion. Harris v. Stewart, 187 Miss.

489, 193 So. 339 (1940) followed Hayes, su-

pra, and held that if sufficient illegal votes

were cast to change the result it was proper

to order another primary election.

[10] We discern no valid reason for or-

dering a new election in a primary election

contest where a sufficient number of illegal

votes are counted which would change the

result, or leave it in doubt, and refusing to

apply the same rule in a general election

contest. We, therefore, overrule Trahan,

42a

supra, to the extent that it conflicts with

this holding and modify the cases listed in

footnote six to conform to our holding here.

This gives effect to the language in Pradat

v. Ramsey, supra, where it was stated:

In must be shown that legal votes have

been rejected or illegal votes have been

received, and because of the one or the

other, or both, the result does not con-

form to the will of the voters, or uncer-

tainty has been cast upon the result. (47

Miss. at 34, 35). (Emphasis supplied).

As previously discussed, permitting vot-

ers to receive assistance in marking their

ballot is contra to our statutes enacted for

the purpose of preserving a secret ballot.

See statutes listed in footnotes 1-5, Sec-

tions 23-5-157 and 159 Mississippi Code of

1972 Annotated and Section 3273 Mississip-

pi Code of 1942 Annotated. The case of

Oglesby v. Sigman, 58 Miss. 502 (1880), in-

volved a general election, and condemned

the practice of placing a mark on a ballot

by which it might be identified in violation

of a statute prohibiting the practice, hold-

ing that the statute had for its purpose

securing secrecy of the ballot.

Recently we held in Clark v. Rankin

County Democratic Executive Committee,

322 So.2d 753 (Miss.1975) that a new elec-

43a

tion should be ordered where ballot boxes

were opened and ballots counted before the

polls closed because the practice could lead

to destroying the secrecy of the ballot and

present the opportunity for fraud in count-

ing the ballots. Clark dealt with Section

233-13 Mississippi Code of 1972 Annotated

which is a part of the Corrupt Practices Act

governing the conduct of primary elections,

but the principle applies to our general elec-

tion laws as well. Section 235-147 Missis-

sippi Code of 1972 Annotated applies to

general elections and has the same provi-

sion as section 23-3—13 pertaining to open-

ing ballot boxes and counting ballots. In

Clark we stated:

The above statute was violated in the

following particulars: (1) The ballot box

was not only opened prior to the time

prescribed for closing of the polls but was

opened while the election was still in

poegrens. Section 23-3-13 provides

when the polls shall be closed,

the managers shall then publicly open the

box and immediately proceed to count the

ballots, at the same time reading aloud

the names of the persons voted for, which

shall be taken down and called by the

clerks in the presence of the managers.’

[1012]

44a

There is no provision in the law which

permits a ballot box to be opened and for

counting to begin while the election is

still in progress. To do so is a total

departure from a mandatory feature of

the Corrupt Practices Law specifically de-

signed to insure the secrecy of a voter’s

ballot and to guard against the opportu-

nity for fraud in the counting of the

ballots. If such procedure were permit-

ted, there would be nothing to prevent

opening the box immediately after the

balloting begins and counting each ballot

as it is cast. This would violate the fun-

damental principle of the right to cast a

secret ballot

When, as in this case, there has been a

total departure from the mandatory pro-

visions of the Corrupt Practices Law with

respect to the time, manner and condi-

tions under which the ballots were count-

ed, the contestee cannot successfully

claim that the contestant has failed to

show the will of the electors could not be

ascertained or has not shown the exist-

ence of fraud in connection with such

counting. The departure complained of

45a

deprives him of the very means by which

the fraud could be detected if any exists.

Briggs v. Gautier, [195 Miss. 472, 15 So.2d

209] supra.

We have held in a number of cases that

where there has been a radical departure

from the mandatory provisions of the

Corrupt Practices Law the result of the

particular precinct or precincts in ques-

tion is void. Wallace v. Leggett, 248

Miss. 121, 158 So.2d 746 (1963); Ulmer v.

Currie, 245 Miss. 285, 147 So.2d 286

(1962); May v. Layton, 213 Miss. 129, 56

So.2d 89 (1962); Briggs v. Gautier, supra;

Harris v. Stewart, 187 Miss. 489, 198 So.

339 (1940); Hayes v. Abney, 186 Miss.

208, 188 So. 533 (1939). (322 So.2d at 756,

757). :

Clark is another example of judicial sanc-

tion of statutes. protecting the secrecy of

the ballot and prohibiting departure from

mandatory statutes regulating elections

which could deprive a candidate of the very

means of detecting fraud, if any exists.

Although the statute violated in Clark in-

volved a primary election contest, in view

of the fact that we have a similar statute

(section 235-147) regulating opening ballot

boxes and counting ballots in general elec-

tions, the same rule should be applied in a

46a

general election contest under the facts

that existed i Clark.

[11] In this case more than seventy

votes at the Darling precinct must be void-

ed for the reasons heretofore stated in this

opinion. Only twelve votes separated the

two candidates in this election so there

were sufficient illegal votes to change the

result, or to cast uncertainty upon the re-

sult, so that the will of the voters cannot be

ascertained.

Two courses of procedure are available in

this case. First, we could disregard the

vote at the Darling precinct because of the

violations heretofore shown and declare

O’Neal the winner, or, second, we could

order a new election. If we followed the

first alternative the effect would be to dis-

franchise a large number of legal voters at

the Darling precinct. This we do not

choose to do. Because enough illegal votes

were cast to change the result of the elec-

tion, we declare the office of Supervisor,

District No. 1, Quitman County, vacant and

the Board of Supervisors is directed to fill

the vacancy and order an election under the

provisions of Section 235-195 Mississippi

Code of 1972 Annotated.

47a

By way of summary, we hold:

1. That statutes that have as their pur-

pose preservation of secret ballots are man-

datory.

2. That all voters are not entitled to

have another person accompany them into a

voting booth to assist them in marking

their ballots.

3. That only blind, physically disabled or

illiterate voters may have a person accom-

pany them into a voting booth for the pur-

pose of assisting a voter mark his ballot,

and this only after the voter himself has

deciared his disability and requested assist-

ance, and the managers of the election are

satisfied that the claimed disability exists.

REVERSED AND RENDERED.

PATTERSON, C. J., and ROBERTSON,

WALKER, BROOM and LEE, JJ., concur.

INZER and SMITH, P. JJ., dissent.

BOWLING, J., took no part.

[1013]

48a

APPENDIX

In James v. Humphreys County Board of

Election Commissioners, the federal district

court stated that Section 3273 Mississippi

Code of 1942 Annotated had been repealed

and further held that constitutional differ-

ences of a similar statute would be frivo-

lous. The Court was without authority to

prospectively declare a statute unconstitu-

tional under the authority of United States

v. Raines, 362 U.S. 17, 80 S.Ct. 519, 4

L.Ed.2d 524 (1960) in which the Court stat-

ed:

This Court, as is the case with all feder-

al courts, ‘has no jurisdiction to pro-

nounce any statute, either of a State or

of the United States, void, because irrec-

oncilable with the Constitution, except as

it is called upon to adjudge the legal

rights of litigants in actual controversies.

In the exercise of that jurisdiction, it is

bound by two rules, to which it has rigid-

ly adhered, one, never to anticipate a

question of constitutional law in advance

of the necessity of deciding it; the other

never to formulate a rule of constitution-

al law broader than is required by the

precise facts to which it is to be applied.’

Liverpool, New York & Philadelphia S. S.

49a

Co. v. Commissioners of Emigration, 113

U.S. 33, 39, 5 S.Ct. 352, 355, 28 L.Ed. 899,

901. (Emphasis supplied). 362 U.S. at

21, 80 S.Ct. at 522, 4 L.Ed.2d at 529).

The district court should not have antici-

pated a question of constitutional law in

advance of the necessity of deciding it.

11013]

50a

APPENDIX B

INZER, Presiding Justice, dissenting.

I dissent to the holding of the Court as

reflected by Part V of the majority opinion.

This Court has no right or power to nullify,

amend, or repeal a valid statute or to enact

a new one. Neither should it disregard the

former decisions of this Court in deciding

this case.

In order that this case may be properly

understood, it is necessary that the testimo-

ny be detailed. Appellant Harl O'Neal and

appellee Mrs. T. C. Simpson were candi-

dates for the office of supervisor for Dis-

trict One, Quitman County. O’Neal was

the democratic nominee and Mrs. Simpson

qualified as an independent. Mrs. Simpson

was declared the winner by twelve votes.

O’Neal asked for a recount, the votes were

recounted, and the result remained the

same.

Thereafter appellant filed his petition un-

der the provisions of Section 23—5—187, Mis-

sissippi Code 1972 Annotated. This petition

first alleged that Mrs. Simpson was illegally

placed on the ballot as a candidate because

she had participated in the democratic pri-

mary. This contention was without merit

5la

and has now been abandoned. O’Neal then

alleged that he received the greatest num-

ber of legal votes cast in the general elec-

tion. It was charged that unfair, improper,

and illegal procedures were followed at the

Darling voting precinct, and, because of

such irregularities a large number of votes

cast for Mrs. Simpson should not be count-

ed. One of the irregularities charged was

that Mrs. Simpson ostensibly employed Eliz-

abeth Daniels and Fannie Smith as poll

watchers, but they actually were sent to the

polls to solicit votes for Mrs. Simpson. It

was charged that these two persons ap-

proached voters and offered to help them

cast their ballots when such voters were

neither blind, illiterate, or otherwise inca-

pacitated and in no way had asked for help

in casting their ballots; and, that the num-

ber of such voters approached and who

were assisted in marking their ballots were

approximately 100 in number.

It was then charged that a number of

ballots in excess of twelve voting for Mrs.

Simpson at the Darling box were marked in

pencil contrary to the law of the State of

Mississippi and a number of ballots for Mrs.

Simpson in the Darling box in the excess of

twelve were marked with symbols not au-

[1014]

52a

thorized by law. No proof was offered to

support either of these contentions.

It was then charged it was contrary to

law to permit anyone to be given assistance

at the Darling precinct who did not declare

his inability to read, but that a large num-

ber who received assistance could read and

did not declare to the election managers

their inability to read or inability to mark

their own ballots.

It is charged that it was contrary to law

for any person other than the manager of

the election to mark the ballots, and the

manager did not mark the ballots showing

that the voters received assistance as re-

quired by law.

The petition also charged that Mrs. Simp-

son illegally solicited votes at the Darling

precinct. No proof was offered to substan-

tiate this claim. The petition prayed that

the cause be heard by a jury as provided by

Section 23-5—187 to determine the legality

of the election and to determine the name

of the person having received the greatest

number of legal votes cast.

Mrs. Simpson answered and admitted

that Elizabeth Daniels and Fannie Smith

were poll watchers at the precinct but de-

53a

nied the other allegations as to their ac-

tions. She denied that any of the ballots in

the general election were marked with pen-

cil or marked with symbols. She also de-

nied that she illegally solicited voters in the

Darling precinct or that ballots were im-

properly marked at such polling places by

the election officials. Certain affirmative

defenses were also alleged, but these are

not involved on appeal.

It should be noted that the petition does

not charge that the election officials were

guilty of any fraud. It is only charged that

they failed to enforce the laws relative to

voters being given assistance. Neither is it

charged that Mrs. Simpson is guilty of

fraud, but it is charged that her workers

illegally assisted voters in casting their bal-

lots. :

Mrs. Simpson was called as an adverse

witness. She admitted on the day before

the election she solicited Mrs. Daniels and

Mrs. Smith to be poll watchers for her at

the Darling precinct. She gave each of

them a slip showing that they were autho-

rized to be poll watchers for her. She said

she offered to pay them for their services,

but they did not want to accept payment so

she left $80 on the table. She denied that

she requested them to assist voters or that

54a

she illegally solicited anyone to vote for her.

She said she gave them a list of the voters

at the Darling precinct and asked them to

keep up with who voted and to watch what

occurred at the polls. She did not know

what occurred inside the polling place, as

she was outside.

Mr. O’Neal testified that he did not go to

the Darling precinct on election day, but

stayed at the Sledge precinct. He said all

that he knew about what occurred there on

election day was what the election officials

told him and what he found out from peo-

ple who voted at the precinct. He said that

this information was the basis upon which

he filed his petition. He said he did ask for

a recount of the votes and that after a

recount it did not change the result of the

election.

Reverend James Arliss Bryant, who was

pastor of the Darling Baptist Church,

served as one of the managers of. the elec-

tion. He said after the voting started he

noticed Mrs. Smith in the booth helping

someone vote. Mr. Wofford, another mana-

ger, asked her to hold up and she did so

while Mr. Wofford went out and had a

conference with someone. He came back

and said that anyone who wanted assistance

55a

could get it. He said that is the way it

went all day. He estimated that approxi-

mately 100 persons received assistance. On

cross examination he said he did not know,

of course, for whom the people receiving

assistance voted. He said anyone asking

the clerk of the election for assistance was

allowed to choose anyone they desired to

help them. He said he did not think there

was anything wrong with them getting

help.

Mr. W. E. Wofford, the other manager at

the Darling precinct, testified that he ob-

served Mrs. Smith in the booth with one of

the voters and told her that she was not

supposed to be in the booth with someone

else. He said Mrs. Smith stopped, came

out, and said, “well, I’ve been doing this in

other elections before.” He then asked her

to come outside until he could clarify the

matter. Mr. Wofford talked with Brother

Bryant and then with other officials that he

could find, and the way the rules were

interpreted by these people was that any-

one who wanted help could ask someone to

go into the booth and help them vote. He

estimated that Mrs. Daniels and Mrs. Smith

assisted approximately 100 voters. He said

one or two blind persons voted. He esti-

mated that ten or fifteen voters announced

[1015]

56a

to him personally that they could not read

or write, and he helped three or four of

them vote, but most of them asked Mrs.

Daniels or Mrs. Smith to assist them. He

said he did not know of any incidence where

Mrs. Daniels or Mrs. Smith were asked to

assist a voter that they did not mark the

ballot exactly as the voter requested. He

said he did not remember Mrs. Smith or

Mrs. Daniels asking any voter if they want-

ed assistance.

The petitioner then called six persons

who voted at the precinct and their testimo-

ny, in essence, is as follows:

Mrs. Mamie Ruth Bennett testified that

she voted at the Darling precinct and, after

she received her ballot, a lady asked her if

she needed assistance and she told her the

only assistance she needed was someone to

show her how to fold the ballot after she

voted. She said no one helped her vote, and

she marked her own ballot, but the lady

showed her how to fold the ballot.

Mrs. Izonia Thomas said she voted at the

Darling precinct and that she asked Eliza-

57a

Mrs. Minnie Smith also voted at the Dar-

ling precinct. She said she could read and

write, but when she went in a white man

told her if she needed or wanted any help

there were some helpers there who would

assist her. Mrs. Smith said she was a dia-

betic and was feeling weak and badly, and

she asked Mrs. Daniels if she would help

her. Mrs. Daniels said she would. Mrs.

Smith got her ballot and Mrs. Daniels

marked it just as she told her to do. Mrs.

Smith said she folded it and put in the box.

Leon Bennett testified that when he

went to vote at the Darling precinct he

heard Elizabeth Daniels say to another

woman, “don’t bother him, he ain’t going to

let nobody help him.”

George Clark said he could read and

write a little bit. He signed to get his own

ballot, and no one helped him vote. He said

he asked Mrs. Daniels to assist him in pro-

nouncing a name he could not pronounce

after spelling.

Mrs. Rosa Lee Redditt also said she could

read and write, but the clerk signed her

name for her to get the ballot. She said

she had left her glasses, and she asked a

lady whom she did not know to help her

58a

vote because it was dark in the booth and

she could not see without her glasses.

By agreement, the ballot boxes of the

Darling and Sledge precincts were intro-

duced in evidence.

This was all the material testimony of-

fered by O'Neal in support of the allega-

tions of his petition. It is apparent that

there was no proof to support the allega-

tions that the two ladies who rendered as-

sistance to the voters made any attempt to

influence a voter to vote for Mrs. Simpson

or did not mark the ballot of the voter as

directed. In fact, the testimony offered

established that the voters either voted the

ballot themselves or testified that the ballot

was marked exactly as requested. The

most that this evidence establishes is that

there is a probability that they did do some-

thing wrong. Furthermore, O'Neal was

aware of who voted at the Darling precinct

at the election. He was also aware that a

large number of voters received assistance.

Yet, he only produced six witnesses who

voted at the Darling precinct although ad-

mittedly almost a year had elapsed from

the time of the election until the day of this

trial. He wholly failed to show that any

person who voted at the Darling precinct

[1016]

59a

was an illegal voter. He failed to show

that Mrs. Simpson was guilty of any illegal

activity at the polls. It is not contended

that the election holders were guilty of any

fraud or attempted to influence the voters

to vote for either candidate. In fact, the

only thing shown by the testimony is that

the managers were uncertain about the law

pertaining to voters obtaining assistance.

Apparently, they attempted to find out

what the law was, and the information they

received was that a voter who wanted help

could request help from anyone of his

choice. It is also apparent from what is

written in the majority opinion there was

uncertainty as to whether there was any

statute in effect governing the assistance

for illiterate voters. The federal court

thought it had been repealed and had laid

down the rule that an illiterate was entitled

to assistance from anyone of his choice.

Furthermore, although the statute had not

been repealed, it was constitutionally defec-

tive and could not be enforced as written.

Under these circumstances the jury was

justified in finding that the way the elec-

tion was conducted did not affect its out-

come. |

There is no doubt that every vote cast at

this precinct was a legal vote by a qualified

60a

elector. There is no doubt that Mrs. Simp-

son received a majority of the votes cast at

the election. The jury had before it the

ballots cast at both precincts and was in a

position to examine the ballots or recount

them, if they so desired. Since the jury

found for Mrs. Simpson the evidence must

be considered by this Court in the light

most favorable to her.

Insofar as the scope of review in this case

is concerned, it is governed by statute and

the former decisions of this Court. The

controlling statute is Section 235-187, Mis-

sissippi Code 1972 Annotated, and the perti-

nent part reads as follows:

A person desiring to contest the elec-

tion of another person returned as elected

to any office within any county, may,

within twenty days after the election, file

a petition in the office of the clerk of the

circuit court of the county, setting forth

the grounds upon which the election is

contested; and the clerk shall thereupon

issue a summons to the party whose elec-

tion is contested, returnable to the next

term of the court, which summons shall

be served as in other cases; and the court

shall, at the first term, cause an issue to

be made up and tried by a jury, and the

verdict of the jury shall find the person

6la

having the greatest number of legal votes

at the election. If the jury shall find

against the person returned elected, the

clerk shall issue a certificate thereof; and

the person in whose favor the jury shall

find shall be commissioned by the gover-

nor, and shall qualify and enter upon the

duties of his office. Each party shall be

allowed ten peremptory challenges, and

new trials shall be granted and costs

awarded as in other cases. (Emphasis

added).

A statute of similar import has been in

effect in this state since at least 1848. In

the early case Pradat v. Ramsey, 47 Miss. 24

(1872), quoted from in the majority opinion,

it is stated that the statute [the forerunner

of our present statute] seemed to confine

inquiry to the question of who received the

majority of the legal votes. The Court,

after setting out the contention of the ap-

pellant, said: :

The theory of the plaintiff was, that

omissions and irregularities, and errors of

judgment by those charged with registra-

tion, holding the election, and canvassing

the ballots would make the election ille-

gal, and demonstrate that Ramsey had no

title to the office. Hence his several

offers to make proof of these points, the

[1017]

62a

circuit court disagreed with him, and

ruled that the test of the right under the

issue was, whether a majority of legal

votes preferred him for the office, and

therefore he must prove that qualified

voters were rejected, and illegal ballots

received, which would change the result.

Also, that such disorder and tumult pre-

vailed as interfered with the voting, and

prevented balloting to that degree as to

vitiate the election. That the errors, ir-

_ regularities, etc., on part of the officers,

did not make the election void, and could

not have the effect of vitiating the choice

made by the electors. We think the

views of the circuit judge were substan-

tially correct, and affirm the judgment.

(Emphasis added). (47 Miss. at 38, 39).

In Weisinger v. McGehee, 160 Miss. 424,

134 So. 148 (1931), it is stated:

The sole issue which the court that

tried the contested election case was au-

thorized to submit to the jury is that

prescribed by section 6258, Code of 1930,

which is that it “shall find the person

having the greatest number of legal votes

at the election.” This seems to have been

the only issue there considered by the

jury for the verdict returned by it was:

“We the jury find for the contestant,

63a

Mrs. Ada Guice, and that she received the

greatest number of legal votes in said

election.” (160 Miss. at 430, 194 So. at

149).

In May v. Young, 164 Miss. 35, 143 So.

703 (1982), we said:

The only question which the court be-

low was authorized to investigate and

determine was which of the parties here-

to received “the greatest number of legal

votes at the election.” Section 6258,

Code of 1930. Pradat v. Ramsey, 47 Miss.

24; Weisinger v. McGehee, 160 Miss. 424,

134 So. 148. (164 Miss. at 40, 143 So. at

708).

The case of Word v. Sykes, 61 Miss 649

(1884), involved a charge of fraud. This

Court in reversing the case laid down the

following rules:

The cardinal rules controlling such

cases are these: Where the charge is

fraud, the burden is always upon the

contestant to show both fraud and injury

to himself in the conduct and count of the

canvass, and that, in truth and in fact, he

received the greatest number of legal

votes. Until he has proved both of these

ordinarily he can never recover. Unless

he received a majority of the legal votes

64a

he has no right to bring his suit, and he

can complain of no sort of irregularity or

fraud save when he affirmatively shows

that he was thereby damaged; the fact

that he may have been so is not enough,

though he may show such possibility as

tending to prove that in fact he was

injured, and he may show this by any

proof admissible in any other inquiry as

to fraud. But always his obligation is to

prove that he was really elected by a

plurality or majority of legal votes. Un-

less by the whole proof he has done so, his

case must be dismissed or decided against

him. (Emphasis added). (61 Miss. at

662).

In the case before us, the most that

O’Neal was able to show was a possibility

that he was damaged by the way the elec-

tion was conducted. The jury resolved this

issue against him.

The foregoing rules were followed in Lo-

pez v. Holleman, 219 Miss. 822, 69 So.2d 903

(1954), a case involved fraud and where the

jury, by its verdict, found fraud on the part

of the election holders at two precincts.

In spite of the fact that this Court has

followed the plain terms of the statute for

these many years, the majority now says

65a

that the statute is wrong and in effect says

it should be amended by adding to the

words, “and the court shall, at the first

term, cause an issue to be made up and

tried by a jury, and the verdict of the jury

shall find the person having the greatest

number of legal votes at the election,” the

words “but if the evidence shall establish

the election holders departed in any materi-

al manner from the statutory requirements

of the law relative to holding elections, then

the court, not the jury, shall declare the

election void and order a new election.”

Although it may be desirable that the stat-

ute be amended, this Court has no right to

do 80.

Furthermore to accomplish this purpose

the majority, without saying the case was

wrongfully decided, proceeds to overrule in

part Trahan v. Simmons, 191 Miss. 353, 2

So.2d 575 (1941). This case involved a spe-

cial election held in the Fifth District of

Pike County for the election of a justice of

the peace. The return certified that Sim-

mons received 170 votes and Trahan re-

ceived 166. Trahan contested the election

and at the trial it was stipulated that there

were 22 illegal votes cast and counted at

the election. Trahan offered to put the

illegal voters on the stand and prove how

[1018]

66a

they voted. The court sustained objections

to this testimony and did not allow Trahan

to put these witnesses on the stand and to

show how they voted. On appeal, it was

contended, among other things, that the

court should have followed the rule an-

nounced in Hayes v. Abney, 186 Miss. 208,

188 So. 533 (1939), a primary election case.

What this Court said was that the rule

announced in that case to the effect “where

enough illegal votes were cast to change the

result or leave it in doubt, the election is

void,” was inapplicable in a general elec-

tion. In so holding the Court stated:

The rule as stated, whatever may be its

ultimate effect, is applicable, however,

only when the attorney general or district

attorney has, in such a case, instituted an

action in quo warranto, solely in the

name of the state, to oust a person who

has intruded himself into office under an

election void for the stated reason. It

can have no application in an election

contest between the candidates wherein

the candidate certified as having lost

seeks, not to avoid the election, but to

avail of it and to show by his contest that

in fact he was elected by the majority of

the qualified voters who voted. In such a

contest he has the burden of the proof;

67a

and manifestly this is not met simply by

showing that enough illegal votes were

cast to change the result or leave it in

doubt. (Emphasis added). (191 Miss. at

355, 356, 2 So.2d at 575).

This holding merely followed the rule laid

down in the cases heretofore cited and cor-

rectly stated the law. The Court then held

that the persons who cast the illegal votes

could be required to testify how they voted

and reversed the case. See also Walker v.

Smith, 213 Miss. 255, 57 So.2d 166 (1952),

where this Court quoted with approval the

foregoing statement.

The majority then cites and quotes the

rule announced in the recent case of Clark

v. Rankin County Democratic Executive.

Committee, 322 So.2d 753 (Miss.1975). This

case was a primary election case wherein

we held that where there had been a radical

departure from the mandatory provisions of

the Corrupt Practices Act the result of the

particular precinct or precincts in question

is void. The Court: there applied the pri-

mary election law. The majority now says

that this rule should be applied to a general

election case. This is contrary to statute

and contrary to our case law.

In Lopez v. Holleman, supra, in upholding

a jury verdict that excluded the entire re-

68a

turn of two precincts, we pointed out the

distinction between the primary law and

the general election law, saying:

Under the primary statutes, Harris v.

Stewart, 187 Miss. 489, 198 So. 339 (1940),

involved a charge of fraud by the election

officers in a petition contesting a primary

election, and this Court affirmed the

overruling of a demurrer to that petition,

where it was averred that the managers

at the two boxes in question knowingly

permitted the illegal votes and actually

encouraged them. Moreover, the pri-

mary election statute, Sec. 3167, on an

issue analogous to the present one, gives

the county executive committee the pow-

er to throw out an entire box where it is

irapossible to arrive at the will of the

voters at that precinct and the managers

at that box deliberately permitted or en-

gaged in material irregularities and fraud

by manipulating the election and the re-

turns.

(219 Miss. at 846, 69 So.2d at 912).

Section 3167 referred to in Lopez is now

Section 23-3-19, Mississippi Code 1972 An-

notated, which is a part of the Corrupt

Practices Act controlling primary elections.

It authorizes the executive committee or

1019

69a

the special tribunal on review in a proper

case to throw out an entire box and order

another primary election to be held. There

is no such authority granted under the gen-

eral election laws. There can be no doubt

that the legislature has the constitutional

authority to pass one set of laws to govern

primary elections and another set of laws to

control general elections.

N The attempt to apply the primary elec-

tion statute to a general election is contrary

to our holding in Hubbard v. McKey, 193

So.2d 129 (Miss.1966). This case involved a

special election governed by the general

election laws for the office of Supervisor

for the Third District of Hinds County.

McKey was certified the winner and Hub-

bard contested the election. After trial the

issue was submitted to the jury and the

jury found that McKey had received the

greatest number of legal votes. We stated,

among other things:

Contest of such an election is covered by

Mississippi Code Annotated section 3287

(1956). It is required that at the first

term after the filing of a petition to

contest the election the court shall cause

an issue to be made up and tried by a

jury and the verdict of the jury “shall

70a

find the person having the greatest num-

ber of legal votes at the election.” That

is the issue that is tried by the jury, and

that is the issue that was submitted to

them here.

On his appeal, appellant assigns and

argues that the lower court erred in strik-

ing from his petition an averment that

certain ballots were illegal and void be-

cause they had not been initialed by the

initialing manager of the particular vot-

ing precinct.

Mississippi Code Annotated section

3164 (Supp.1964), is the section which pro-

vides for the initialing of ballots.

This section is in the chapter on pri-

mary elections and is a part of what is

known as the “Corrupt Practices Act.”

The said section begins by saying “At all

primary elections the ballots

shall be initialed. It also provides the

manner of voting in primary elections.

Mississippi Code Annotated section

3267 (Supp.1964), in the chapter on “Reg-

istration and Elections”, states how gen-

eral elections shall be held. No mention

is there made of initialing the ballots.

Each of these sections is complete on

its face, and there is no ambiguity in

either as to initialing ballots. However,

71a

§ 348 at 345 (1944); 82 CIS Statutes

Anne We hold that the

was correct i i

— — —

(198 So.2d at 190, 181)

has not seen fit to so provide and the legis

lature alone and not this Court has the

constitutional right to legislate in this field.

— 2 — of powers mandates re-

72a

relative to the assistance of illiterates. The

jury consi the evidence and evidently

determined, 48 it had a right to do, that

there had been no intentional wrongdoing

on the part of the election holders and that

the assistance rendered at the polls by the

paid poll watchers or workers was not cause

to discard the votes cast at the Darling

precinct and declare O’Neal the winner.

Furthermore, the trial judge saw and heard

the witnesses testify and he did not think

the verdict of the jury was against the

overwhelming weight of the evidence or

contrary to law. If we follow the terms of

the statute, and the decisions of this Court,

this case would of necessity have to be

affirmed. Especially is this true since the

trial court granted appellant what he re-

quested by his petition. That is, for a trial

by a jury to determine the legality of the

election and to determine the person having

received the greatest number of legal votes

cast. This issue was submitted to the jury

and it found against him. Now he wants

this Court to declare the election void,

throw out the election, and grant him a new

be granted. In the first place he did not

request the trial court to do so, and in the

second place there is no authority under the

1020]

73a

general election laws for this Court to de-

clare an election void and order a new elec-

tion. Furthermore, it is not every depar-

ture from the requirements of the Corrupt

Practices Act that requires a new election.

In Walker v. Smith, supra, a primary elec-

tion case, in the suggestion of error this

Court, in discussing this question, stated:

What constitutes such a ubstantial

failure to comply ir material particulars

with the requirements of the statutes in a

primary election, which would fall within

the foregoing classification so as to re-

quire the throwing out of a box or calling

a new election, depends upon the facts

and circumstances in each particular case,

including the nature of the procedural

requirements violated, the scope of the

violations, and the ratio of illegal votes to

the total votes cast. For example, in

May v. Layton [56 So.2d 89], supra, 836

votes out of a total vote of 2213 were

held to be illegal, and it was said that this

result, by holding void more than one-

third of the total votes cast, made it

impossible to determine the will of the

voters and constituted such a substantial

failure to comply with the statutes as to

require a new election.

(213 Miss. at 264, 57 So.2d at 167).

74a

I know that it is the earnest desire of

every member of this Court to be sure that

the right decision is reached in each case.

While the result reached by the majority

may be desirable, it is my sincere belief that

it is contrary to the settled law of this state

relative to the contest of a general election.

We should not make uncertain that which

has been certain for these many years.

For the reasons stated, I am of the opin-

ion that this case should be affirmed and I

would affirm.

SMITH, P. J., joins in this dissent.

75a

APPENDIX C

ORDER OF THE SUPREME COURT OF MISSISSIPPI

WEDNESDAY, AUGUST 31, 1977, COURT SITTING:

HARL O’NEAL ]

#50,068 v

MRS. T. C. SIMPSON

This cause having been submitted at a former day of

this Term on the record herein from the Circuit Court of

Quitman County and this Court having sufficiently ex-

amined and considered the same and being of the

opinion that there is error therein doth order and ad-

judge that the judgment of said Circuit Court rendered

in this cause on the 24th day of September, 1976—be

and the same is hereby reversed. This Court declares the

Office of Supervisor, District Number 1, Quitman Coun-

ty, Mississippi, vacant and the Board of Supervisors is

directed to fill the vacancy and order an election under

the provisions of Section 23-5-197, Mississippi Code of

1972 Annotated. It is further ordered and adjudged that

the appellee do pay all of the costs of this appeal to be

taxed for which let proper process issue.

76a

APPENDIX D

IN THE SUPREME COURT OF MISSISSIPPI

HARL O’NEAL ~ APPELLANT

VERSUS NO. 50,068

MRS. T. C. SIMPSON APPELLEE

Sullivan, Smith, Hunt & Vickery

Attorneys for Appellee

P. O. Box 1196

123 Court Street

Clarksdale, Mississippi 38614

PETITION FOR REHEARING

COMES NOW, Mrs. T. C. Simpson, by and through her

attorneys and respectfully submits that this Honorable

Court committed several errors in its decision rendered in

the above styled and numbered cause on August 31,

1977, said errors being as follows:

1. The holding of this Court that the procedural pro-

visions of Section 3273, Mississippi Code 1942, Annota-

ted, (1956) are mandatory is directly contrary to prior

decisions of this Court explicitly applicable to the very

statute in question;

2. The decision of this Court engrafting additional

language to a clear and unambiguous legislative enact-

ment [Section 23-5-178, Mississippi Code 1972 Annota-

ted] constitutes an unconstitutional judicial invasion of

the power of the legislature;

77a

3. The change in the procedure and law respecting

election contests constitutes an enactment “affecting

voting rights“ by virtue of its applicability to the method

of giving effect to one’s ballot, such an enactment not

being enforceable until approved by the United States

Attorney General or the United States District Court for

the District of Columbia pursuant to 42 U.S.C. Section

1973C (the Voting Rights Act of 1965);

4. The decision of this Court constitutes a finding of

fact which is solely within the province of the jury, and

results in a denial of the Appellee to due process by

virtue of Appellee having tried the case in the lower

Court and developed her facts solely on the basis of the

law as it then existed prior to the decision of this Court;

and

5. Various statements and holdings of the Court

stated in the decision are unclear, ambiguous, and con-

trary to applicable statute and case law of this State;

more particularly that:

a) This Honorable Court is without authority to

vacate the office of Supervisor, District No. 1, Quitman

County, Mississippi;

b) This Court is without authority to compel action

by one not a party to this suit; |

c) Section 23-5-195, Mississippi Code of 1972 Anno-

tated pertains to filling of vacancies by the Governor of

Mississippi;

d) The decision of this Court permits strangers to

this proceeding to qualify and run for office in the special

election directed by this Court, even though the time for

qualifying by those desiring to run in the regular g-neral

election of 1975 is nearly two years past; and

78a

e) The opinion of this Court creates a drastic change

in the policy of this State with respect to methods of

determining the rights of an individual to hold office

under a certification of the proper Election Commission.

WHEREFORE, Appellee respectfully submits that the

opinion of this Court involves the above issues which have

not been properly briefed and argued by virtue of the

fact that the law appeared settled prior to the decision of

this Court; and therefore, Appellee respectfully submits

that this Petition for Rehearing should be granted and

this cause again placed on the Docket of this Court for

further proceedings as justice may require.

Respectfully submitted,

SULLIVAN, SMITH,

HUNT & VICKERY

/s/ David R. Hunt

DAVID R. HUNT

P. O. Box 1196

123 Court Street

Clarksdale, Mississippi

CERTIFICATE

I, the undersigned member of the firm, Sullivan, Smith,

Hunt & Vickery, do hereby certify that I have this day

mailed, postage pre-paid, a true and correct copy of the

above and foregoing Petition for Rehearing to the Honor-

able J. W. Dulaney, Jr., of the firm, Dulaney & Dulaney,

Attorneys for Appellant, at his usual Post Office mailing

address, to-wit: P. O. Box 188, Tunica, Mississippi 38676.

THIS the 14th day of September, 1977.

/s/ David R. Hunt

DAVID R. HUNT

Attorneys for Appellee

79a

APPENDIX E

ORDER DENYING PETITION FOR REHEARING

HARL O’NEAL

#50,068 v ]

MRS. T. C. SIMPSON ]

This cause this day came on to be heard on Petition

for Rehearing filed herein and this Court having suffi-

ciently examined and considered the same en banc and

being of the opinion that the same should be denied doth

order that said Petition be and the same is hereby denied.

Bowling, J., took no part.

Minute Book BS“ Page 460

80a

APPENDIX F

APPLICABLE CONSTITUTIONAL PROVISIONS

AND STATUTES

Amendment V

Constitution of the United States of America

No person shall be held to answer for a capital, or

otherwise infamous crime, unless on a presentment or

indictment of a Grand Jury, except in cases arising in the

land or naval forces, or in the Militia, when in actual serv-

ice in time of War or public danger; nor shall any person

be subject for the same offense to be twice put in jeo-

pardy of life or limb; nor shall be compelled in any

Criminal Case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public use,

without just compensation.

Amendment XIV

Constitution of the United States of America

SECTION 1.- All persons born or naturalized in the

United States, and subject to the jurisdiction thereof, are

citizens of the United States and of the State wherein

they reside. No State shall make or enforce any law

which shall abridge the privileges or immunities of

citizens of the United States; nor shall any State deprive

any person of life, liberty, or property, without due pro-

cess of law; nor deny to any person within its jurisdiction

the equal protection of the laws.

Section 5, Title I. Voting Rights Act of 1965

(42 U.S.C. 1973c)

Whenever a State or political subdivision with respect

to which the prohibitions set forth in section 1973b(a)

8la

of this title based upon determinations made under the

first sentence of section 1973b(b) of this title are in

effect shall enact or seek to administer any voting qualifi-

cation or prerequisite to voting, or standard, practice, or

procedure with respect to voting different from that in

force or effect on November 1, 1964, or whenever a

State or political subdivision with respect to which the

prohibitions set forth in section 1973b(a) of this title

based upon determinations made under the second sen-

tence of section 197%b(b) of this title are in effect

shall enact or seek to administer any voting qualification

or prerequisite to voting, or standard, practice, or proce-

dure with respect to voting different from that in force

or effect on November 1, 1968, or whenever a State or

political subdivision with respect to which the prohibi-

tions set forth in section 1973b(a) of this title based

upon determinations made under the third sentence of

section 1973b(b) of this title are in effect shall enact or

seek to administer any voting qualification or prerequisite

to voting, or standard, practice, or procedure with respect

to voting different from that in force or effect on Novem-

ber 1, 1972, such State or subdivision may institute an

action in the United States District Court for the Dis-

trict of Columbia for a declaratory judgment that such

qualification, prerequisite, standard, practice, or proce-

dure does not have the purpose and will not have the

effect of denying or abridging the right to vote on

account of race or color, or in contravention of the

guarantees set forth in section 1973(f)(2) of this title,

and unless and until the court enters such judgment no

person shall be denied the right to vote for failure to

comply with such qualification, prerequisite, standard,

practice, or procedure: Provided, That such qualification,

prerequisite, standard, practice, or procedure may be en-

forced without such proceeding if the qualification, pre-

82a

requisite, standard, practice, or procedure has been sub-

mitted by the chief legal officer or other appropriate

official of such State or subdivision to the Attorney

General and the Attorney General has not interposed an

objection within sixty days after such submission, or upon

good cause shown, to facilitate an expedited approval

within sixty days after such submission, the Attorney

General has affirmatively indicated that such objection

will not be made. Neither an affirmative indication by

the Attorney General that no objection will be made, nor

the Attorney General’s failure to object, nor a declara-

tory judgment entered under this section shall bar a

subsequent action to enjoin enforcement of such quali-

fication, prerequisite, standard, practice, or procedure.

In the event the Attorney General affirmatively indi-

cates that no objection will be made within the sixty-day

period following receipt of a submission, the Attorney

General may reserve the right to reexamine the submission

if additional information comes to his attention during

the remainder of the sixty-day period which would

otherwise require objection in accordance with this sec-

tion. Any action under this section shall be heard and

determined by a court of three judges in accordance with

the provisions of section 2284 of Title 28 and any appeal

shall lie to the Supreme Court.

Section 23-5-187, Mississippi Code of 1972 Annotated

A person desiring to contest the election of another

person returned as elected to any office within any

county, may, within twenty days after the election, file

a petition in the office of the clerk of the circuit court of

the county, setting forth the grounds upon which the

election is contested; and the clerk shall thereupon issue

a summons to the party whose election is contested,

83a

returnable to the next term of the court, which summons

shall be served as in other cases; and the court shall, at

the first term, cause an issue to be made up and tried by

a jury, and the verdict of the jury shall find the person

having the greatest number of legal votes at the election.

If the jury shall find against the person returned elected,

the clerk shall issue a certificate thereof; and the person

in whose favor the jury shall find shall be commissioned

by the governor, and shall qualify and enter upon the

duties of his office. Each party shall be allowed ten per-

emptory challenges, and new trials shall be granted and

costs awarded as in other cases. In case the election of

district attorney or other state district election be con-

tested, the petition may be filed in any county of the

district or in any county of an adjoining district within

twenty days after the election, and like proceedings shall

be had thereon as in the case of county officers, and the

person found to be entitled to the office shall qualify as

required by law and enter upon the duties of his office.

Section 3273, Mississippi Code of 1942 Annotated

A voter who declares to the managers of the election

that by reason of inability to read he is unable to mark

his ballot, if the same be true, shall, upon request, have

the assistance of a manager in the marking thereof; and

the managers shall designate one of their number for the

purpose, who shall note on the back of the ballot that it

was marked by his assistance; but he shall not otherwise

give information in regard to the same.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.