James L. "Pete" Perry testifies Tuesday in Oktibbeha County Circuit Court. Perry, chairman of the Hinds County Republican Party Executive Committee, was an expert witness called by Johnny Moore in his challenge of last year's mayoral Democratic primary runoff election. Photo by: Luisa Porter/Dispatch Staff
April 11, 2018 10:14:05 AM
An expert witness Johnny Moore's attorney called on to testify during Tuesday's court proceedings said he'd count seven affidavit and absentee ballots that were rejected during last year's mayoral primary runoff election.
William Starks, a Columbus attorney representing Moore in his challenge of his loss to Mayor Lynn Spruill in last May's Democratic runoff, called on James L. "Pete" Perry to testify during Tuesday's truncated court session. Perry is the chairman of the Hinds County Republican Party Executive Committee, and has worked with state legislators on crafting election law.
As his testimony drew to a close Tuesday, Perry said he would count seven affidavit ballots that were rejected for reasons ranging from uncertainty about where the voters were registered to whether they were inactive in the voter rolls.
"Based on the information that we have on each one of them and my understanding of the various laws that apply to them, yes I would process them, and in an election we would accept those," Perry said.
Moore lost last year's election to Spruill by six votes.
During his testimony, Perry also spoke to the results he found during a ballot box examination after Moore challenged the election results. Perry and Starks examined boxes in wards 1, 3 and 6. In wards 1 and 6, Perry said, the county found a different vote total for walk-up ballots cast on election day than what the certified results reported.
In Ward 1, the official count for regular ballots is 204 for Spruill to 170 for Moore. However, Perry said he could only find 203 votes for Spruill in the stack of ballots for her. One ballot, which some of Monday's testimony focused on, was marked for neither candidate and had a sad face drawn on it. Perry said he believed that ballot, which shouldn't have counted for anyone, was attributed for Spruill for some reason.
In Ward 6, the official count for regular ballots shows 274 for Spruill and 208 for Moore. Perry testified his count only found 273 ballots for Spruill and 209 for Moore.
The changes in the two wards, if the court accepts them, would amount to a three-vote swing in Moore's favor with the gain of one vote for him and loss off two for Spruill.
For Ward 6, Perry said he could only find one tally sheet, which is where poll workers mark their counts for the ballots in the ballot box. There are normally two tally sheets for each ward.
He said the counting error, if that was what happened, could have just been a simple mistake.
"It's very easy to miss a tally. That's the reason why having two people tally is convenient, and good practice," Perry said. "It's easy, when they're reading the list, that a tally gets put here rather than here, and that would make a difference.
"If one ballot was read for Moore, but tallied for Ms. Spruill, for instance, that could make the difference and it could be just the pencil being in the wrong place when they get it," he continued. "You're tallying a lot of ballots."
Perry did not discuss his findings in Ward 3 during Tuesday's testimony. However, on Monday as the trial opened, Starks said Moore's team believes the total count for the loss should be five votes, rather than six. At that time, Starks said they believe Moore had one less vote than counted and Spruill had one more. That would swing the difference to five votes in favor of Spruill.
Ford: Moore ballot to be accepted
Former First District Circuit Judge Barry Ford will ultimately have to decide whether to accept the reported differences in counts and whether to accept any of the challenged ballots.
While Ford has yet to tip his hand on most of the issues in question, he did say on Tuesday he plans to accept the affidavit of David A. Moore, who testified on Monday to living in the city but his ballot was rejected because the Statewide Elections Management System (SEMS) reported that he was not registered in the city.
It's also unclear how Ford will ultimately rule in the case. Starks said Moore is seeking, primarily, to be named the winner, if the court finds that he received more votes than Spruill. Alternately, Moore is seeking a new election.
Ford did overturn the results of a November town marshal election in Okolona, according to the Northeast Mississippi Daily Journal, ordering the original certified Democratic primary winner out of office and ordering a new general election.
Spruill team: Need more time to review documents
Tuesday's proceedings ended early after Ford agreed to allow Spruill's attorney's time to review documents from Perry that they didn't receive until shortly before the trial began.
Jim Mozingo, one of Spruill's attorney's, said Spruill's team requested a poll worker handbook Perry prepared and notes from his ballot box review in March at a deposition, but did not receive it until Friday. Mozingo requested half a day to review the documents.
The election challenge will continue today.
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