September 14, 2017 10:57:59 AM
Starkville Mayor Lynn Spruill's legal team is asking the Mississippi Supreme Court to find her election challenger, Johnny Moore, sidestepped an established process allowing political parties to handle questions or complaints raised in their own primaries.
Attorneys Jim Mozingo and Lydia Quarles filed an interlocutory appeal last week with the high court that seeks to reverse a July decision not to dismiss Moore's petition for judicial review of May's Democratic primary runoff.
Allowing Moore's challenge to move forward to the special tribunal phase, Mozingo and Quarles wrote in the appeal, would "essentially ... remove a party's executive committee's control over its own primary elections, and thus rewrite" state statute.
A timetable for addressing the new filing was not clear Wednesday, and the entire issue -- Spruill's appeal and Moore's challenge -- could easily be held up in litigation for months.
In a July hearing, Special Judge Barry Ford ruled Moore's challenge may proceed after Spruill's counsel argued the court had a limited jurisdiction and could only review action taken by the Starkville Democratic Municipal Executive Committee after the election.
Spruill beat Moore by six votes in May's Democratic Party runoff after securing 47 percent of the primary's three-way race.
Moore challenged the results, citing improperly accepted and rejected absentee and affidavit ballots, among other issues. It calls for the acceptance of proper ballots and the possibility of a third mayoral election if the true will of voters cannot be determined.
His attorney, William Starks, pushed the election challenge to circuit court one day before Starkville Democrats were scheduled to hold a hearing on the matter.
State statute requires primary election contests be filed with the party's executive committee, and it is the duty of the committee to hear and determine the contest. In her appeal, Spruill's attorneys write allowing the grievance to be heard with the party first is a predicate for judicial review, but Moore sidestepped statute when he alone determined the party would not have ample time to hear and fairly rule upon the dispute, thereby necessitating the move to the court system.
"This is the crux of what Moore has not done. In fact, Moore sought in every way he could to avoid his obligation to proceed before and obtain an adjudication from the committee, the very predicate needed to invoke the jurisdiction of the special tribunal (afforded in a petition for judicial review)," the appeal states.
During the Democratic Party hearing, Starks only argued a signature issue on a contract between the city and the party meant the entire election was invalid and Starkville breached the agreement by using paper ballots instead of voting machines.
Moore's claim also alleged other issues -- Starkville election commissioners incorrectly rejected at least nine affidavits, while more than 60 absentee ballots have issues; numerous ballots contained improper and illegal marks; and the number of signatures in voter receipt and poll books from certain precincts did not match the number of ballots cast in the runoff -- but Starks declined to push forward with those arguments in the Democratic Party's hearing, saying a court order would be required to open ballot boxes since the matter had been filed with the court system.
"As Moore admits, he did not proceed before the committee. Whether this course of action was intentional or whether it was negligent, the old legal maxim that 'one who sleeps on his rights loses them,' certainly applies," the appeal states. "Besides, Moore never even made an attempt to put on any proof he may have had. We can never know what time would have been required. We have only Moore's self-serving opinion."
After July's hearing, Starks said he was looking forward to presenting "the actual evidence we have to the court ... and not being thwarted from doing that."
"We want the true results of the election to come out," he said this summer.
Carl Smith covers Starkville and Oktibbeha County for The Dispatch. Follow him on Twitter @StarkDispatch
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