April 12, 2018 11:17:33 AM
Alex Holloway - [email protected]
Testimony concluded after a third day of proceedings in Oktibbeha County Circuit Court for Johnny Moore's challenge of his loss in last year's Starkville mayoral runoff election.
Now, attorneys for both Moore and Mayor Lynn Spruill will meet with former First District Circuit Judge Barry Ford this afternoon to finish some procedural matters so the case can move to the next step.
Attorney William Starks, who is representing Moore, said he anticipates both sides will rest at this afternoon's proceedings. From there, he said, they will go over the points of the case they agree on -- which he admitted will likely be very limited.
Ford said he may also rule on whether a total of nine challenged absentee and affidavit ballots will be counted for the election. Ten challenged ballots have been presented in the case. Ford has already said that he will allow one, an affidavit cast by David A. Moore, to be counted.
Ford said he may also give consideration as to whether to change the ballot box counts for three wards that have been called into question. Moore's camp contends Moore lost the May Democratic primary runoff to Spruill by five votes, rather than the certified six.
James L. "Pete" Perry, an expert witness Moore's side called for testimony on Tuesday and Wednesday, said his examinations of ballot boxes in Wards 1, 3 and 6, found different totals than the certified results.
Spruill, according to testimony, was over counted by one vote in Ward 1; under counted by one vote in Ward 3, where Moore was also over counted by one vote; and over counted by one vote in Ward 6, where Moore was under counted by one vote.
"I know that Mr. Perry has testified that there was some discrepancy with regard to Ward 1..." Ford said. "I'll make a determination about that, but I will do that after I confer with the election commissioners and see what their thoughts are along those lines. Then there were a couple of others in other wards that were different. I'll make a determination as to that.
"But as it stands, the election was a six vote differential between Ms. Spruill and Mr. Moore," Ford added.
Ford said he will also rule on 52 absentee ballots that Spruill's side contends should not have been counted, by Perry's own admission. Spruill's attorney Jim Mozingo, while cross-examining Perry on Wednesday, asked if the ballots, which Perry described as having "fatal" deficiencies, should have been counted. Perry said they should not.
The ballots included mistakes such as the voters not signing across the flap properly, as law requires.
Mozingo also asked Perry, and later attorney Dolton McAlpin, about the state statute that requires affidavit ballots to include several pieces of information, including the complete name of the voter, present and previous physical mailing address of the voter and telephone number.
That could disqualify some of the challenged absentee ballots from being counted. However, Starks, during testimony with Perry, pointed to the Mississippi Supreme Court's 2005 decision in the case Smith v Hollins, where the court found that "minor technical irregularities" shouldn't disqualify ballots from being counted.
Once today's proceedings conclude, attorneys will have to wait to receive a transcript from the court reporter to prepare final findings of fact for their cases. It could take several days, if not longer, for the transcript to be completed.
After that, Ford said he will likely give attorneys at least 15 days to prepare and submit their findings. He will rule on the case at some point after that.