IN RE: REPUBLICAN PRIMARY RUNOFF FOR PEARL RIVER COUNTY TAX COLLECTOR/ASSESSOR (2025)

¶1. This appeal involves the contest of a Republican primary runoff election for the office of tax collector/assessor for Pearl River County, Mississippi. The Circuit Court of Pearl River County ordered a special election in two of the county precincts after finding that the will of electorate could not be determined. Jo Lynn Houston, the certified winner of the election by two votes, raises various issues on appeal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On August 29, 2023, the Republican Primary Runoff Election for the office of tax collector/assessor of Pearl River County, Mississippi, resulted in razor-thin election results. Jo Lynn Houston received 2,915 votes to Sandy Kane Smith's 2,913 votes.¹ Houston then advanced to the general election and, with no other candidate on the ballot, was certified as the winner.

¶3. Smith filed his Petition for Judicial Review in the Circuit Court of Pearl River County after initially filing his Petition of Contest with the Pearl River County Republican Executive Committee. The special judicial tribunal found that two votes were cast illegally by voters who first voted in the Democratic primary and then in the subject Republican runoff as well as a miscounted vote in the Carriere 5 Precinct, which both parties stipulated had been for Smith. As a result, the trial court ordered that the election certification be vacated and a special election be held in the Picayune Southside 1 Precinct and Picayune 2 Precinct, the precincts in which the illegal votes had been cast. Further, the court ordered that the special election results would then be added to the following totals: Houston 2,691 (2,915 certified total less 224 Picayune Southside 1 and Picayune 2 total) and Smith 2,692 (2,912 certified total less 221 Picayune Southside 1 and Picayune 2 total plus 1 from Carriere 5 Precinct). Aggrieved by this result, Houston appealed.

STANDARD OF REVIEW

¶4. This Court reviews questions of law de novo. Harreld v. Banks, 319 So. 3d 1094, 1105 (Miss. 2021) (citing Boyd v. Tishomingo Cnty. Democratic Exec. Comm., 912 So. 2d 124, 128 (Miss. 2005)). In election contest cases, “[t]his Court reviews the trial judge's findings of fact in a bench trial for manifest error, and will not upend the trial judge's findings unless it is manifestly against the weight of credible evidence or is a product of prejudice, bias, or fraud.” Id. (citing Boyd, 912 So. 2d at 128).

DISCUSSION

I. Whether Smith met his burden of proving that the will of the electorate could not be ascertained thus necessitating a special election.

¶5. “In an election contest, the burden is on the petitioner to prove both the existence of illegal votes and that enough were cast to change the election's outcome.” Id. (citing Boyd, 912 So. 2d at 130). Then, when determining if a special election is warranted, this Court has employed a two-prong test, in which considers if either “(1) enough illegal votes were cast for the contestee to change the election result or (2) the amount of votes disqualified is substantial enough that it is impossible to discern the will of the voters.” Noxubee Cnty. Democratic Exec. Comm. v. Russell, 443 So. 2d 1191, 1197 (Miss. 1983) (citing Walker v. Smith, 213 Miss. 255, 56 So. 2d 84 (1952)). Simply put,

To prevail in an election challenge, the contestant must show that there were a sufficient number of illegal votes cast or legal votes not counted to change the result or to cast uncertainty upon the result so that the will of the voters cannot be ascertained before a new election can be ordered.

Straughter v. Collins, 819 So. 2d 1244, 1249 (Miss. 2002) (citing O'Neal v. Simpson, 350 So. 2d 998, 1012 (Miss. 1977)).

¶6. At trial, the parties stipulated that Smith should be given credit for one vote that was not counted in the Carriere 5 Precinct, which narrowed the gap to merely two votes. The trial court then found that two illegal votes were cast by voters who originally voted in the Democratic primary and then again in the Republican runoff in violation of Mississippi Code Section 23-15-575 (Rev. 2018).

¶7. Houston argues that because Smith did not elicit testimony from the two voters regarding how they voted, Smith did not meet his burden of proving that the will of the electorate could not be ascertained. To support this argument, Houston relies on Harreld, 319 So. 3d 1094. But the issues in Harreld centered around newly created precinct boundaries, and the petitioner in that case did not prove any of the challenged votes to be illegal. Id. at 1110. In fact, this Court held that “[t]he record consequently does not support Harreld's claims of illegal votes being cast in split precincts, and it likewise does not support a showing of substantial failure to materially comply with election statutes.” Id. So the petitioner in Harreld failed to meet his burden of proving illegality of votes under the first prong of the Noxubee test. Harreld, 319 So. 3d at 1110. The Court explained further that “[e]ven if all seven of those voters cast votes for [the winning candidate], his margin of victory would decrease to fifty votes, failing to change the outcome of the election.” Id. at 1115. Therefore, Harreld is distinguishable from the present case because we find that Smith easily met his burden to prove the existence of illegal votes. Additionally, given the two-vote margin, the outcome of the election in the present case could be altered by the two illegal votes, making the will of the electorate impossible to ascertain based on the facts before the Court.

¶8. At issue here is not whether illegal votes exist or for whom the voters voted, but whether the will of the electorate is impossible to ascertain necessitating a special election. Similar to the present case is Folson v. Fulco, 305 So. 3d 406, 407 (Miss. 2020), which involved four illegal votes and a margin of two votes. In that case, this Court held that the petitioner “was not required to prove for whom the four illegal votes were cast, only that the ballots were illegal”; the votes were an appropriate number to change the outcome of the election. Id. at 412 n.5. Thus, the Court affirmed the trial court's decision ordering a special election as the proper remedy. Id. at 413.

¶9. Again, given the two-vote margin in the present case, we find that the same reasoning applies. We, therefore, affirm the decision of the trial court ordering a special election.

II. Whether the trial court erred by determining all vote challenges raised (other than the two illegal votes discussed supra) were mere technicalities, thus upholding the decision of the Pearl River County Election Commission.

¶10. On cross-appeal, Smith raised seven specific allegations regarding the trial court's factual findings. These issues are summarily described as follows: 1) whether the special tribunal erred by declaring that the two regular ballots that were cast in the Picayune Southside 1 and Salem 4 precincts that were not counted by the DS200 Scanners should not be included in the final results; 2) whether the special tribunal erred by counting the five regular ballots in the Poplarville 3, Ceasar 4, Nicholson, and Sycamore 5 precincts for Houston when the same lacked initials of poll managers; 3) whether the special tribunal erred by counting the affidavit ballot of Nicole Leidemeyer in the Mill Creek precinct for Houston as accepted by the County Election Commission; 4) whether the special tribunal erred by counting the absentee ballots of Candyce Lee and Benjamin F. Crosby, II for Houston as determined by the Resolution Board; 5) whether the special tribunal erred by counting the absentee ballot of disabled voter, David Williams, for Houston as determined by the Resolution Board; 6) whether the special tribunal erred by counting the absentee ballot of Sidney Worthy as determined by the Resolution Board; and 9) whether the special tribunal erred by declining to declare Smith as the candidate with the most lawful votes in the runoff election.

¶11. We find that because these factual issues were decided unanimously by the election commissioners, they are not subject to appellate review. Miss. Code Ann. § 23-15-933 (Rev. 2018). Therefore, we will not address the factual issues; however, as to the questions of law, we cite Straughter, in which this Court noted that “mere technical irregularities in the casting of a ballot are not grounds for invalidation absent evidence of fraud or intentional wrongdoing.” Straughter, 819 So. 2d at 1252 (citing Campbell v. Whittington, 733 So. 2d 820, 826 (Miss. 1999)); see also Chinn v. Cousins, 201 Miss. 1, 27 So. 2d 882, 883 (1946) (holding lawful a “sane and practical relaxation indulged under circumstances where, despite trivial lapses, the voters have expressed their will by lawful ballot”); Guice v. McGehee, 155 Miss. 858, 124 So. 643 (1929) (holding that in determining the effect of irregularities, all statutes are to be construed liberally in favor of the voter). Therefore, we dismiss the cross-appeal.

¶12. Smith's remaining two issues are: (1) whether the trial court erroneously denied his Motion to Remove the County Election Commissioner from the special tribunal due to a conflict of interest; and (2) whether the special tribunal's findings of fact are reviewable by this Court, since the County Election Commissioner was erroneously allowed to serve on the tribunal. We find these issues to be moot based on the Court's final conclusion in this matter. Accordingly, we dismiss Smith's cross-appeal.

CONCLUSION

¶13. We find that, given the two-vote margin coupled with the existence of two illegal votes, enough illegal votes were identified to bring the will of the electorate into doubt. Therefore, we affirm the trial court's order of a special election in the Picayune Southside 1 and Picayune 2 precincts. We further order that the results of this special election shall be added to the following vote count from the previous election: Houston 2,691 (2,915 original certified total less 224 Picayune Southside 1 and Picayune 2 total) and Smith 2,692 (2,912 original certified total less 221 Picayune Southside 1 and Picayune 2 total plus 1 from Carriere 5 Precinct).

¶14. ON DIRECT APPEAL: AFFIRMED. ON CROSS-APPEAL: DISMISSED.

FOOTNOTES

1.   The Pearl River County Election Commission certified the final vote count as 2,915 for Houston and 2,912 for Smith. After ballot examination, the parties stipulated one absentee vote for Smith that had not been counted, resulting in a final tally of 2,915 for Houston and 2,913 for Smith.

BRANNING, JUSTICE, FOR THE COURT:

KING AND COLEMAN, P.JJ., MAXWELL, CHAMBERLIN, ISHEE, GRIFFIS AND SULLIVAN, JJ., CONCUR. RANDOLPH, C.J., NOT PARTICIPATING.