VOL. 125 | NO. 166 | Thursday, August 26, 2010
FOCUS Law & The Courts
Losing Candidates File Suit Over Election Results
By Bill Dries
Before the polls closed Aug. 5, a clearly dismayed Shelby County Election Commission chairman Bill Giannini talked about the inevitability of some aspect of holding an election going wrong.
“There are always machines down at polling places. Again we are dealing with electronics,” he said. “We are dealing with facilities that we don’t control. How many of you have a computer that doesn’t come on from time to time? We have approximately a thousand machines or more out in the marketplace right now.”
On that Election Day, the problem that got the most attention was with electronic polling books loaded with a list of early voters from the May elections. Election officials at numerous polling places were telling August election day voters that, based on the list, they had already voted early in July.
But the lawsuit filed this week by 10 countywide candidates on the Aug. 5 ballot lists a litany of other Election Day problems. The combination of Democratic nominees for countywide office and several candidates from the five judicial special elections claim the results were “incurably uncertain.”
The losing candidates from August are contesting the results and seeking a restraining order that preserves voter information and data from the election. It would also allow the plaintiffs to preserve a copy of computer data and hard drives. And the lawsuit seeks a court-appointed monitor for the Nov. 2 elections.
In a previous lawsuit seeking access to election records, Chancellor Walter Evans appointed Chancery Court Clerk Dewun Settle to monitor an examination of voting records.
There have been Election Day problems before that have made for long election night vote counts.
In 1998, some candidates on the once-every-eight-year “big ballot” that includes judicial offices, gathered at Election Commission headquarters Downtown at 2 a.m. the following morning still awaiting results.
A computer glitch in the Shouptronic machines used at the time resulted in a literal reboot of election results that stretched into the next day. Ultimately, there was no challenge of the vote count.
The historic 1991 race for Memphis mayor between incumbent Dick Hackett and challenger Willie Herenton ended well after midnight as well following a controversial decision by the Election Commission to count absentee votes after the election day count. Hackett lost by 142 votes and considered a court challenge but also ultimately decided against it.
“We have the most secure accurate equipment that is available to us today to count votes,” Giannini said on Aug. 5 before attorneys on all sides began urging their clients to do their talking in court under oath. “It leaves us with a trail. We are able to audit to determine what has happened.”
The lawsuit disputes that. It also contends the election machinery doesn’t count how many voters were turned away without being offered a failsafe voting procedure or a provisional ballot and never argued or returned to vote.
Past court cases have not been kind to arguments involving “could haves” or “would haves.”
Four years ago, four Democratic contenders filed suit contesting the results of the same set of county general elections. Each got within a thousand votes of upsetting Republican incumbents holding countywide office.
They and their supporters claimed election numbers they watched after the polls had closed jumped suddenly with the lead changing at the end of the vote count. The lawsuit was dismissed.
A perennial in election disputes has been the argument that more people told a candidate they had voted for them than the vote total reflected.
John Willingham made the claim several years ago in a bid for Memphis Mayor he lost to incumbent Willie Herenton by tens of thousands of votes. That too was dismissed.
When E. H. Crump won the Memphis Mayor’s office for the first time in 1909 by 79 votes, then political boss Joseph “J.J.” Williams went to court as part of no fewer than 11 lawsuits contesting the results. Crump sued too and won the right to take the oath of office in 1910.
When Williams dropped his legal claims a year later he conceded citizens he encountered after the election may have told him what he wanted to hear.