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VOL. 128 | NO. 161 | Monday, August 19, 2013

Armstrong Orders New School Board Election

By Bill Dries

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For a second time, results in the August 2012 elections have been successfully contested in court.

Shelby County Chancellor Kenny Armstrong, in a long-awaited ruling issued Monday, Aug. 19, ordered the Shelby County Election Commission to conduct a new election for countywide school board District 4.

Kevin Woods and Kenneth Whalum, both incumbents on the 23-member school board, were running for one of the seats on the seven-member school board that takes effect Sept. 7. The election ended with a certified vote count showing Woods was the winner.

School Board Court Ruling

For a second time, results in the August 2012 elections have been successfully contested in court.

Shelby County Chancellor Kenny Armstrong, in a long-awaited ruling issued Monday, Aug. 19, ordered the Shelby County Election Commission to conduct a new election for countywide school board District 4.

The matchup between Kevin Woods and Kenneth Whalum, two incumbents on the 23-member school board for one of the seven seats that becomes the school board as of Sept. 7, ended with a certified vote count showing Woods was the winner.

But Whalum contested the results in Shelby County Chancery Court, citing a vote count in which all sides acknowledged some voters within the district got a different school board race on their ballots and other voters outside the district saw the District 4 race on their ballots.

“The Election Commission here made no concerted effort to avoid the problems that occurred in this election for school board positions,” Armstrong wrote in his ruling. “With the changes in the alignment of the school board districts due to the new unified school system, the problems that occurred here should have been anticipated and measures taken to insure all data was properly inputted to minimize any adverse impact on school board races.”

Armstrong did not set a date for a new election in the school board district. That presumably will be up to the Election Commission if there is no appeal and no stay of the ruling pending such an appeal.

Armstrong’s ruling also concluded there is not proof of fraud by the Election Commission.

“Proof of fraud, however, is not required in all cases to void an election,” he wrote. “An election may be voided if enough persons were unlawfully deprived of the opportunity to vote.”

Attorneys for Woods and the Election Commission argued that there were three groups of voters to be taken into account but that there was no way to tell how some of them voted or would have voted in the contest. They also cited case law showing that kind of doubt was not sufficient to factor in those ballots when deciding if an election should be overturned.

But Armstrong, in his ruling, rejected the idea of separating them while acknowledging the seriousness of overturning an election. And with those votes combined, the total number of contested votes in question was more than Woods’ certified 108-vote margin of victory.

“Admittedly, the mistakes here were honest mistakes and non-intentional,” Woods concluded. “They, however, bear a direct relationship to the uncertainty of the election outcome if all voters had been allowed to participate and vote in the District 4 race.”

Chancellor Arnold Goldin ruled in October that the results in the Millington sales tax hike referendum were to be overturned after Millington city officials contested the certified vote count showing the ballot question lost by three votes.

Attorneys for the city showed some voters who did not live in Millington in a pre-election annexation and then de-annexation by the city were allowed to vote when their votes shouldn’t have been counted.

In that case, all sides agreed to a new vote count showing the question won by 12 votes and Goldin approved the agreement in a court order.

But Whalum contested the results in Shelby County Chancery Court, citing a vote count in which all sides acknowledged some voters within the district got a different school board race on their ballots and other voters outside the district saw the District 4 race on their ballots.

“The Election Commission here made no concerted effort to avoid the problems that occurred in this election for school board positions,” Armstrong wrote in his ruling. “With the changes in the alignment of the school board districts due to the new unified school system, the problems that occurred here should have been anticipated and measures taken to insure all data was properly inputted to minimize any adverse impact on school board races.”

Armstrong did not set a date for a new election in the school board district. That presumably will be up to the Election Commission if there is no appeal and no stay of the ruling pending such an appeal.

Woods said he will follow the advice of his attorney in the matter.

Asked if he would run in a new election, he said, "In the unlikely event that there is another election, I believe we will be victorious again."

Whalum's attorney, Robert Spence, said he would oppose any attempt by attorneys representing the others sides to stay the ruling pending a possible appeal.

And Whalum was emphatic that he will again seek the seat. "I will be running like a Kenyan in a marathon," he said several times during an afternoon press conference.

Armstrong’s ruling also concluded there is no proof of fraud by the Election Commission.

“Proof of fraud, however, is not required in all cases to void an election,” he wrote. “An election may be voided if enough persons were unlawfully deprived of the opportunity to vote.”

Attorneys for Woods and the Election Commission argued that there were three groups of voters to be taken into account but that there was no way to tell how some of them voted or would have voted in the contest. They also cited case law showing that kind of doubt was not sufficient to factor in those ballots when deciding if an election should be overturned.

But Armstrong, in his ruling, rejected the idea of separating them while acknowledging the seriousness of overturning an election. And with those votes combined, the total number of contested votes in question was more than Woods’ certified 108-vote margin of victory.

“Admittedly, the mistakes here were honest mistakes and non-intentional,” Armstrong concluded. “They, however, bear a direct relationship to the uncertainty of the election outcome if all voters had been allowed to participate and vote in the District 4 race.”

Chancellor Arnold Goldin ruled in October that the results in the Millington sales tax hike referendum were to be overturned after Millington city officials contested the certified vote count showing the ballot question lost by three votes.

Attorneys for the city showed some voters who did not live in Millington in a pre-election annexation and then de-annexation by the city were allowed to vote when their votes shouldn’t have been counted.

In that case, all sides agreed to a new vote count showing the question won by 12 votes, and Goldin approved the agreement in a court order.

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