IN THE CIRCUIT COURT

)F HEADil^NToVNTY, MISSISSIPPI

JIM HARRELJ PLAINTIFF

VS. CIVIL ACTION NO. 45CI1 :19-CV-0265

KARL BANKS DEFENDANT

OPINION AND ORDER

THIS CAUSE came on for hearing on the petition of Jim Harreld pontesting the

certified results of the Madison County, Mississippi, District 4 Supervisor General

Election of November 5, 2019. After carefully considering all of the evidence at the trial

herein and all of the exhibits presented by the parties, the Court hereby concludes,

finds, and orders the following:

1. On May 31, 2011, the Madison County Board of Supervisors adopted legal

metes and bounds descriptions of the Madison County Board of Supervisor Districts.

Prior to their adoption by the Board of Supervisors, the descriptions we^re sent to the

United States Department of Justice on March 25, 2011, for preclearaince under the

federal Voting Rights Act. On May 24, 2011, the Board of Supervisors received pre-

clearance for the new District lines from the United States Department of Justice.

2. In adopting the legal metes and bounds descriptions approved by the United

States Department of Justice, the Board of Supervisors passed a Resolution which

among other things "resolve[d] and ordere[d]" as follows:

a. "That the 2011 primary and general elections for county district offices

shall take place under the district lines approved by the U.S. department of

Justice on May 24, 2011."

 b. "That the Circuit Clerk is hereby directed to proceed with establishing

voter rolls according to the new district lines for the Supervisor dis tricts "

3. On November 5, 2019, a General Election was held in Madison County,

Mississippi for the office of District 4 Supervisor of Madison County.

4. On November 14, 2019, the Madison County Election Commission filed with

the Secretary of State the certified results of the District 4 election. The certified

results for the District 4 election showed that plaintiff Jim Harreld received 3,467 votes
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and the defendant Karl Banks received 3,524 votes, a 57-vote margin i|n Mr. Banks'

favor.

5. Within the time prescribed by statute, both Mr. Harreld and Mr. Banks and/or

individuals on their behalves conducted a ballot box examination.

6. On November 25, 2019, Mr. Harreld filed his original petition contesting the

certified results of the District 4 election.

7. On November 27, 2019, Mississippi Supreme Court Chief Justice Michael K.

Randolph appointed the undersigned as Special Judge to preside over the contest.

8. On January 24, 2020, Mr. Harreld filed a final amended petition. That same

day Mr. Banks filed an answer.

9. On January 28, 2020, the undersigned Judge signed an Agreed order

requesting the lawsuit be tried as a bench trial with the parties having ivaived a jury

trial.

10. On February 19-21, 2020, a bench trial was held in the matter^ . At the trial,

Mr. Harreld raised various issues challenging a number of ballots that wfere counted

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and the failure to count other ballots which he claims should have been counted.

DISCUSSION

A primary issue raised by Mr. Harreld is that the voter roles maintained in the

Statewide Elections Management System (SEMS) where not in conforniE lity with the

boundary lines of District 4 as adopted by the Madison County Board of Supervisors

and approved by the United States Department of Justice. Mr. Harreld alleges that the

nonconformity allowed one hundred (100) voters to cast ballots in the District 4

election who do not reside within the District. Additionally, he alleges tljiat one

hundred five (105) voters who do reside in District 4 cast ballots in a District other than

District 4.

While certainly not dispositive of the issue it is noted that the district lines

where adopted by the Madison County Board of Supervisors on May 31, |2011. There

have been numerous federal, state and local elections completed which included the

votes cast in District 4. In fact, Harreld has participated as a candidate jn the district

prior to this election. This issue has never been raised in any election, nor has the

issue been presented to any of the election officials in charge of maintaining SEMS

placement of registered voters.

Harreld presented the testimony of one witness who stated his opinion as to the

metes and bounds boundary lines of District 4 and his opinion as to the misplacement

by SEMS of voters Harreld complains of. The state and county election officials who

maintain the SEMS system and the placement of voters within districts where not

parties to this action, nor where they called as witnesses. In short, they not given

the opportunity to defend the district boundary lines and the placement k>f voters

therein. 3
 Voters who cast votes in the present election voted the only place they
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would have been allowed to vote. Had they presented at other polling places, they

would not have been able to cast their ballot. For this Court to invalidate the votes of

the voters Harreld complains of, this Court would, in effect, disenfranchise numerous

registered voters in Madison County, Mississippi. If, in fact, there are questions

relating to the placement of voters within the SEMS system, those questions should

be presented to those in charge of its management. Without an official cljiange by

state and local election officials in the placement of the registered voters Complained

of, this Court declines to invalidate those votes and, thereby disenfranchise those

citizens.

Additionally, Harreld claims that twenty-five individuals voted in the

District 4 race using a Tougaloo College address who do not reside withiri District 4.

While there was testimony that those individuals did not reside at the aqdress shown

on their registration, none of the parties were called to offer testimony ad to where

they do reside. In order to meet his burden necessary to disqualify those votes, Harreld

must prove that at the time of the election, the voter had abandoned their residency

in District 4 and that they did not have an intent to return. There was sijnply no proof

that those voters had abandoned their residency in District 4 with no intent to return

and had established residency elsewhere. Without such proof, to invalidate those votes

would require an assumption by this Court, which this Court must not do.

Likewise, Harreld claims that forty-three (43) individuals voted in the

District 4 race who did not reside within District 4 through the testimony^ of Constable

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Gary Windham, a Constable in Rankin County, Mississippi. Windham had originally

included nine (9) additional individuals. Those individuals were called by Banks

to testify in Court, where they denied Windham's assertions.

Again, in order to provide this Court with sufficient evidence to invalidate

those ballots, Harreld must show the Court that those voters had abandoned their

residence in District 4 with no intent to return. The proof submitted by Harreld is,

again, totally insufficient to invalidate the ballots.

Harreld also contests the validity of various other ballots, affidavit ballots
I
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and absentee ballots for various technical requirements of the Mississippi Code. It is

important to note that both, Harreld and Banks, informed the Court throughout this

trial that there were no allegations or suggestions of any fraud or intentional wrong

doing. Furthermore, the Court carefully considered all of irregularities suggested by

Harreld and certainly does not consider the technical deficiencies complained of to be

a radical departure of the election procedures by election officials. There were no

objections to the acceptance or rejection decisions made by election officials at polling

places, or otherwise, prior to the filing of this complaint. Furthermore, many of the

absentee ballots were obtained with the assistance of the Circuit Clerk. There is simply

no reason to suspect that the remaining ballots questioned by Harreld where cast in

such a way as to require their disqualification. Without question, there $ve certainly

no sufficient questions raised to cast doubt on the will of the voters in the election.

CONCLUSION

The Mississippi Supreme Court has held that "ordering a special election
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is indeed an extraordinary remedy and requires careful balancing of many competing

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factors." Waters v Gnemi, 907 So. 2d 307, 333 (171) (Miss. 2005). The Mississippi

Supreme Court has held that "courts regard the imposition of a nevt election as

a last resort and seek to avoid exacting it as a remedy, if at all possible."

James v Westbrooks, 275 So. 3d 62, (126) (Miss. 2019).

The certification of an election by the election officials is presumptively

accurate. Frances v. Sisk, 205 So. 2d 254. 258 (Miss. 1967; Lopez v. Holleman, 69

So. 2d 903, 911 (Miss. 1954). To overcome the certification and prevail in this case
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Petitioner Harreld must prove more than that there were illegal votes cefst during the

election. He must meet a two-prong test to determine whether the Courjt should order
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a new election. Wesley v. Washington County Democratic Executive Committee and

McGee, 235 So. 3d 1379, 1385, (H18-20) (Miss. 2017); Harpole v. Kemper County

Democratic Executive Committee, 908 So. 2d 129, 138 (122) Miss. 2005), Noxubee

County Democratic Executive Committee v. Russell, 445 So. 2d 1191, 1197 (Miss.

1997). The two-prong test is as follows: (1) Whether "enough illegal votejs were cast

for the contestee (Banks) to change the result of the election", or (2) whether "so many

votes are disqualified that the will of the voters is impossible to discern." Id. In

Wesley, supra, the Court described the two-prong test as "...one of the most important

tests for assessing an election." Also, the absence of fraud, intentional wrongdoing or

a radical departure from the election procedures by officials, a new election is not

warranted. Harpole, Id. 908, So. 2d at 147 (121).

The Court finds that the evidence presented by Mr. Harreld is

insufficient to prove by a preponderance of the evidence that enough illegal votes, if

any, were cast for Mr. Banks during the election to change the outcome. Therefore,
Mr. Harreld has failed to prove the first prong of the test.

The Court further finds and adjudicates that Harreld has failed to

establish by a preponderance of the evidence that "so many votes are disqualified that

the will of the voters is impossible to discern." Harpole and Russell, Id.

For the reasons set forth herein this Court should, and does hereby find

and adjudicate that the respondent herein, Banks, received a majority of the legal

votes cast in the November 4, 2019, Madison County, Mississippi, District 4

Supervisor's election, and that the results certified by Madison County Election

Commission and filed with the Mississippi Secretary of State on November 14, 2019

are hereby affirmed by this Court.

So ORDERED AND^ADJUDGED on this the 28th day of April> 2020

Ptskard
1 Circuit Judge