# Petition — Simpson v. O'Neal

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0418%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1978
- **Citation:** 435 U.S. 934

## Text

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)

(i
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

7

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.

1

x N e

2

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

———

„ „

3

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

4

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.

5

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

6

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

7

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

8

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

9

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

10

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

11

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.

12

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.

13

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

14

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

15

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

16

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

la

APPENDIX A

Hari O’NEAL
v.
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

2a

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

:

3a

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-

q
— Ee n

4a

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:

— —_

5a

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

6a

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

7a

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?

8a

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

9a

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

— —

or

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 t

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0418%3A1. Public record. Not legal advice.