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VOL. 128 | NO. 163 | Wednesday, August 21, 2013

Ruling Could Add to Busy Special Election Calendar

By Bill Dries

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If the Shelby County Election Commission sets a new election date for the District 4 countywide school board seat sometime this year, it will be the 10th special election in Shelby County in what was supposed to be an off-election year for much of the county.

Chancellor Kenny Armstrong’s ruling Monday, Aug. 19, tossed out the certified election results in the August 2012 school board race between Kevin Woods and Kenneth Whalum Jr. and ordered a new election.

Monday’s ruling tossing out the 2012 school board race results between Kevin Woods and Kenneth Whalum Jr. could add another special election this year.

(Daily News File/Lance Murphey)

He did not set an election date in the court order.

The special election tally includes separate sets of school board elections on Nov. 7 in each of the six suburban towns and cities in Shelby County.

The Memphis City Council also wants the question of a city of Memphis half-percent sales tax increase on the ballot some time in October. If they wait until November, the Shelby County Commission could possibly pre-empt it and go to the ballot with a countywide sales tax hike instead.

Last week, Tennessee Gov. Bill Haslam issued a writ of special election for the State House District 91 seat held by the late Lois DeBerry, with primaries on Oct. 8 and the general election on Nov. 21.

The only regularly scheduled elections in Shelby County are the Sept. 19 municipal elections in Lakeland and Arlington.

Still to be determined is if Woods or the Shelby County Election Commission will appeal Armstrong’s decision and move for a stay on any new election date.

Armstrong ruled in what are unusual circumstances. Whalum contested the results from an election that had considerable problems and confusion among voters who, in many cases, got inaccurate information from the Election Commission about the new districts they lived in. The seven school board seats that become the countywide school board as of Sept. 1 were up for election for the first time. Other races included a new set of district lines that had been changed in the once-a-decade reapportionment process in keeping with the once-a-decade U.S. Census.

The ruling marked the second time a Chancery Court judge has overturned results from the local August 2012 ballot. Chancellor Arnold Goldin overturned the results in the Millington referendum on a sales tax increase.

Armstrong ruled the Election Commission “made no concerted effort to avoid the problems that occurred in this election for school board positions.”

He concluded voters inside and outside the district got the wrong school board races on their ballots “due to no fault of their own and due solely to mistakes of election officials.”

Without a new election, Armstrong said, “There will always be legitimate questions about the actual winner in the District 4 county school board race.”

Armstrong ruled a week after U.S. District Judge Samuel “Hardy” Mays rejected the idea of another special election this year to fill six seats the Shelby County Commission wanted to add to what becomes a seven-member school board next month. It is the same school board on which Woods and Whalum are still vying for a position.

Mays rejected the special election option as well as the commission’s preferred plan to appoint six new school board members to take office next month. He instead ruled the school board will add the six new members and expand to a 13-member board effective Sept. 1, 2014, after voters elect the new members in the regularly scheduled August 2014 county general elections.

His ruling also shed some light on the federal court system’s philosophy on special elections.

“A special election is a remedy that should only be undertaken after careful consideration of the equities,” Mays wrote. “Equitable considerations include the expected cost of any election, whether the short timeframe would discourage people from running and how a special election would affect voter turnout.”

Mays cited an Election Commission cost estimate of $425,000 for holding special school board elections this year.

Among the case law Mays cited was a ruling by a federal court in Alabama that rejected a special election there based on alleged violations of federal Voting Rights acts.

“A special election can be extremely costly to a local government, and these expenses can be unduly burdensome when not anticipated in the budget,” read the excerpt quoted by Mays in his ruling. “Furthermore, a special election is likely to generate fewer competitive candidates for office because the benefits of holding office for a period of time significantly shorter than a full term are slight – especially when those officeholders are faced with the prospect of campaigning and fundraising so soon for the next election. Moreover, voter turnout in special elections is generally very low, on account of the populace being unaccustomed to an election mid-cycle and there being no other races to generate interest in the election.”

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