The Shelby County Election Commission has identified 837 disputed votes in the Aug. 2 election for the District 4 countywide school board seat.
The information disclosed last week as part of a legal challenge of the results in the district race prompted a delay of a trial in the case before Chancellor Kenny Armstrong until some time after the Nov. 6 elections.
Countywide school board member Kenneth Whalum Jr. is challenging his 108-vote loss to Kevin Woods in the certified election results from the District 4 balloting.
In his lawsuit, Whalum cites the same general election problems that prompted a state comptroller’s office audit, a six-month probationary period for Shelby County Elections Administrator Richard Holden and a decision Tuesday by Chancellor Arnold Goldin to reverse the results of another race on the August ballot.
At Wednesday’s hearing before Chancellor Kenny Armstrong, the attorneys on all sides including the attorney for Woods, who is an intervenor in the case, conferred with Armstrong in his chambers about the election commission numbers.
Election commission attorney John Ryder said later the disputed votes include 370 voters who live outside District 4 but who were allowed to vote in the District 4 race. The election commission information includes who they voted for. Another 186 voters who live outside of District 4 got ballots that included the District 4 race.
But the precinct information for those voters doesn’t indicate whether they voted in the race and if so for whom they voted. The remaining 281 voters live in District 4 but voted in other school board district races.
Any one of the three totals is more than the margin between Whalum and Woods in the certified vote count. And the legal test in Tennessee law for a lawsuit contesting election results is whether the disputed votes would change the outcome of the election.
Whalum’s attorney Robert Spence described 556 of the 837 votes as “illegal.”
“Those totals are going to be verified by the parties,” Spence said after the hearing adjourned. “We just got those totals last week. We will try to better understand how they arrived at those totals.”
Woods’ attorney, Jef Feibelman, also questioned whether the 281 voters who didn’t get the District 4 race on their ballots should be included based on state case law in other election disputes.
“That requires a little more scrutiny,” Ryder said. “We may have some interesting principles of law to explore here.”
All sides are due back in court Nov. 8 to update Armstrong on their status.
Armstrong could affirm the certified results showing Woods as the winner. He could order what would probably be a special election after the Nov. 6 elections or he could overturn the certified results and declare Whalum the winner.
The Wednesday hearing was the day after Chancellor Arnold Goldin overturned the results of the Aug. 2 Millington sales tax referendum. The ballot question lost by three votes in the certified vote count. The city of Millington sued and Goldin signed the order overturning the results and declaring the tax hike was approved after Election Commission attorneys agreed with the conclusion that there were enough disputed votes from outside Millington in the contest to change the outcome.
Goldin’s decision means Millington voters will not vote on the countywide sales tax hike that is on the Nov. 6 ballot for voters in Memphis and unincorporated Shelby County.