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VOL. 128 | NO. 101 | Thursday, May 23, 2013

Armstrong Hears Whalum-Woods Election Dispute

By Bill Dries

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On his way this week to hearing and later deciding the case of a disputed election for a countywide school board seat, Chancellor Kenny Armstrong got a feel for the complexities voters faced in the 2012 election and beyond.


Armstrong heard the case Tuesday, May 21, of the disputed District 4 countywide school board election from last year. A decision is pending.


Armstrong heard the call by school board member Kenneth Whalum Jr. to void the election results in the race between him and school board member Kevin Woods for one of the seven seats that will remain on the school board after Sept. 1.

Whalum’s attorney, Robert Spence, argued the August county elections that include the District 4 school board race were “so permeated with problems that the free will of voters cannot be determined.”

He also argued that Armstrong should void the certified District 4 election results because the number of questionable or “illegal” votes is larger than Woods’ 106-vote margin of victory in the race.

Spence discounted the legal argument in similar Tennessee cases that voters have an obligation to inquire if they think they are getting a ballot with the wrong district races.

“In this case, it was the first ever unified county schools board,” he told Armstrong. “Everybody in the county got shuffled.”

And those in District 4 got shuffled again. When Woods was appointed to the seat in 2011 it was numbered District 5. But for the election, the district number was changed to accommodate the staggering of terms in two tiers of elections every even year – one set for even-numbered districts and another for odd-numbered districts.

Whalum, a sitting school board member from the old Memphis City Schools board, was running for a seat on the seven-member board that remains starting Sept. 1 when the 23-member board downsizes under terms of the schools merger federal court settlement.

Armstrong asked the attorneys if voters would still be confused in future school board elections.

“A great many people are,” Shelby County Election Commission attorney John Ryder answered as he explained that by the next school board election, the school board might have changed to a 13-member body instead of seven members – and have a completely different set of district lines.

U.S. District Court for the Western District of Tennessee Judge Samuel “Hardy” Mays is considering a pending plan by the Shelby County Commission to make the coming seven-member board a 13-member board instead.

Spence said election problems in August in general made the election “the poster child for illegality and irregularity.”

“No one has confidence that the free will of voters is being expressed by Mr. Woods being declared the winner,” he added.

All sides in the case agree there were 556 votes cast improperly by voters who lived outside District 4 but got ballots with the district school board race.

Of that number 186 came from split precincts, voting locations in which some voters within the boundaries lived in one district while others lived in another district.

“We don’t know which are which,” Ryder told Armstrong.

That leaves 370 votes that break down to 93 votes for Woods and 277 for Whalum.

With those votes taken out of the certified vote totals, Woods’ margin of victory grows to 290 votes, argued Jef Feibelman, his attorney.

“The will of the people is clear here,” he told Armstrong. “Mr. Woods won the election. There is simply no basis for voiding the election.”

Spence argued for taking the 186 votes into consideration in a decision to void the election results and possibly conduct a new election for the seat.

“Without it there will forever be uncertainty about who is the true victor in this election,” Spence told Armstrong.

Another 281 voters are in question because Ryder and Feibelman said it is unclear if they voted at all in the school board race. Spence said those votes are another factor in favor of throwing out the election results.

Ryder argued the numbers instead portray a “limited, qualified and defined” problem, not the kind of broad election problems that are one legal standard in past Tennessee court cases for voiding election results.

“Courts should be very hesitant to set aside an election,” Ryder added.

Armstrong gave no indication when he might rule on the case.

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