Bishop Answer and Cross Complaint

8/20/2019 Bishop Answer and Cross Complaint

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IN THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI

KARL BANKS PETITIONER

VS. CASE NO. CI2015-294

MADISON COUNTY BOARD OF

ELECTION COMMISSIONERS; and

DAVID BISHOP RESPONDENTS

RESPONDENT DAVID BISHOP’S ANSWER AND CROSS-COMPLAINT

COMES NOW Respondent David Bishop (“Bishop”), and in response to the Petition for

Writ of Mandamus, and Declaratory Judgment and Petition for Recount and Election Contest [doc.

1] presents to the Court his Answer and Cross-Complaint, as follows:

I. INTRODUCTION

Petitioner puts at issue 31 affidavit ballots in his Petition for Writ of Mandamus, and

Declaratory Judgment and Petition for Recount and Election Contest (the “Petition”) . Petitioner

alleges that four of those affidavit ballots were “inexplicably excluded” from the vote totals by

the Election Commission, Petition [doc.1], at 5 (¶¶ 28, 30), and that the other 27 were first hand

counted but then “restuffed” into their envelopes before the final, official, count of the ballots.

While Bishop vigorously contests Petitioner’s claims about these 31 ballots, as will be shown

herein, the Petitioner’s requested relief not only fails as a matter of law, but is insufficient to

suggest that the certification of Bishop as the winner of the election was in error.

Petitioner alleges, in Paragraph 41 of his Petition, that by his tally (a tally Bishop, again,

vigorously denies and disputes) that the correct vote totals yield a three-vote margin for Mr.

Banks. That margin would presumably grow to seven if the remaining four (deficient) affidavit

ballots are added. Yet, in his Cross-Complaint detailed below, Bishop demonstrates that at least

Case: 45CI1:15-cv-00294 Document #: 34 Filed: 12/23/2015 Page 1 of 24


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one absentee vote cast for Bishop that was not counted in the certified totals must be added,

while 13 absentee, affidavit, and curbside ballots illegally cast for Mr. Banks must be deducted

from the vote totals. That fourteen-vote change in the margin between the candidates is well

more than enough to demonstrate that, even under Petitioner’s rosiest of scenarios, Bishop still

won the election.

FIRST DEFENSE

As more fully discussed in Bishop’s Motion to Dismiss and supporting authorities [doc. 13

and 28], the Petition fails to state a claim or cause of action against either of the Respondents upon

which relief can be granted, and should be dismissed with all costs taxed unto the Petitioner.

SECOND DEFENSE

As more fully discussed in Bishop’s Motion to Dismiss and supporting authorities [doc. 13

and 28], Respondent hereby pleads any and all defenses available pursuant to Rule 12(b) of the

Mississippi Rules of Civil Procedure, specifically including that the Court lacks jurisdiction over

the parties and the subject matter plead by the Petitioner to grant the relief sought, pursuant to

Rules 12(b)(1), (2), and (6).

THIRD DEFENSE

This Respondent, not having fully developed the facts, hereby incorporates and

affirmatively pleads any and all defenses listed in Rule 8(c) of the Mississippi Rules of Civil

Procedure that may be applicable to this case and specifically reserves the right to raise any

objections and defenses therein stated.

FOURTH DEFENSE

Petitioner is barred from seeking any relief under his Petition because such is barred by the

doctrine of unclean hands.



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FIFTH DEFENSE

In answer to the Complaint, paragraph by paragraph, Respondent Bishop would show unto

the Court as follows, to-wit:

To the extent that the unnumbered paragraphs contain any allegations in support of the

Petitioner’s alleged causes of action or prayer for relief, Bishop denies same. Bishop specifically

denies that Petitioner is entitled to a writ of mandamus as such is outside the Court ’s jurisdiction

to grant and is further improper under Miss. Code Ann. § 23-15-951. Bishop further specifically

denies that Respondent Madison County Board of Election Commissioners (the “Election

Commission”) failed to correctly certify Bishop as the winner of the November 3, 2015 General

Election for Madison County Supervisor, District 4; and specifically denies that the Election

Commission “re-stuffed” any ballots back into opened envelopes.

1. Bishop admits that Petitioner, Karl Banks (“Banks”), is an adult citizen of Madison

County, Mississippi. His address is 104 Southampton Circle, Madison, Mississippi 39110. Banks

ran as the incumbent in the November 3, 2015, Madison County Board of Supervisors, District 4

election.

2. Bishop admits that Respondent, the Madison County Board of Election

Commissioners is an entity created by statute, i.e., Miss. Code Ann. §23-15-211, 213. Bishop

denies that the Court has jurisdiction over the Election Commission and, pursuant to well-

established Mississippi law, denies that the Election Commission is a proper party to this action

or has any authority to take any further action regarding the election at issue, as it has finally

certified Bishop as the winner of the election.



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3. Respondent Bishop is an adult citizen of Madison County, Mississippi. Bishop ran

as the challenger in the November 3, 2015, Madison County Board of Supervisors, District 4

election. His address is 149 Woodland Springs Drive, Ridgeland, Mississippi 39157.

4. As more fully discussed in Bishop’s Motion to Dismiss and supporting authorities

[doc. 13 and 28], Bishop denies that this Court has jurisdiction to hear Petitioner’s claims or afford

Petitioner any of the relief requested.

5. Bishop admits that venue is proper in this Court.

COUNT I

PETITION FOR WRIT OF MANDAMUS AND DECLARATORY JUDGMENT

6. Bishop denies that Petitioner is entitled to a writ of mandamus as such is improper

under Miss. Code Ann. § 23-15-951. To the extent further response is required from Bishop,

Respondent denies any further allegations pled in Paragraph 6 of the Petition.

7. Bishop denies the allegations contained in Paragraph 7 of the Petition.

8. Bishop denies the allegations contained in Paragraph 8 of the Petition as stated.

9. Bishop denies the allegations contained in Paragraph 9 of the Petition as stated and

further denies the allegations contained in the footnotes appended thereto.

10. Bishop admits the allegations of Paragraph 10 of the Petition.

11. Bishop is without information to admit or deny the allegations in Paragraph 11 of

the Petition, other than to state that the election results as counted and certified by the Election

Commission speak for themselves, and so therefore Bishop denies the allegations in this paragraph.






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Bishop admits that the Election Commission properly certified him as the winner of the General

Election for Madison County Supervisor, District 4, on November 12, 2015.

14. Bishop denies the allegations of Paragraph 14 of the Petition.

15. Bishop admits that by a majority vote, the Election Commission properly certified

him as the winner of the General Election for Madison County Supervisor, District 4, on November

12, 2015.

16. Bishop denies the allegations in Paragraph 16 of the Petition as stated, other than

to state that the election results as counted and certified by the Election Commission speak for

themselves. Bishop admits that the Election Commission properly certified him as the winner of

the General Election for Madison County Supervisor, District 4, on November 12, 2015.

17. Bishop denies the allegations in Paragraph 17, other than to state that the election

results as counted and certified by the Election Commission speak for themselves. Bishop admits

that the Election Commission properly certified him as the winner of the General Election for

Madison County Supervisor, District 4, on November 12, 2015.


the Petition, including those in the footnote appended thereto, other than to state that the election

results as counted and certified by the Election Commission speak for themselves, and so therefore

Bishop denies the allegations in this paragraph. Bishop admits that the Election Commission

properly certified him as the winner of the General Election for Madison County Supervisor,

District 4, on November 12, 2015.



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19. Bishop denies the allegations in Paragraph 19 of the Petition, including those in the

footnote appended thereto, other than to state that the election results as counted and certified by

the Election Commission speak for themselves. Bishop admits that the Election Commission


















23. Bishop denies the allegations in Paragraph 23 of the Petition, other than to state that

the election results as counted and certified by the Election Commission speak for themselves.



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26. Bishop denies the allegations in Paragraph 26 of the Petition.














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39. Bishop denies the allegations in Paragraph 39 of the Petition, and demands strict

proof thereof.


proof thereof.





footnote appended thereto, and demands strict proof thereof.

45. Bishop admits that he was allowed to examine the ballots, in accordance with Miss.

Code Ann. § 23-15-911. Bishop denies any remaining allegations in Paragraph 45 of the Petition

as stated.


proof thereof.



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proof thereof.


proof thereof.


proof thereof.


proof thereof.


proof thereof.





56. Paragraph 56 states a legal conclusion such that no response by Bishop is required;

however, Bishop denies that the quoted authority supports the Petitioner’s claims and further

denies that Petitioner has correctly portrayed how the law applies to this action.








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64. Bishop denies the allegations in Paragraph 64 of the Petition and specifically denies

that Petitioner is entitled to a writ of mandamus as such is improper under Miss. Code Ann. § 23-

15-951.

COUNT II

PETITION FOR RECOUNT AND ELECTION CONTEST

65. Bishop incorporates and restates his responses in the preceding paragraphs.



Commission speak for themselves, and so therefore Bishop denies the allegations in this

paragraph. Bishop admits that the Election Commission properly certified him as the winner of

the General Election for Madison County Supervisor, District 4, on November 12, 2015.




Commission speak for themselves, and so therefore Bishop denies the allegations in this

paragraph.


proof thereof.



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70. Bishop denies the allegations in Paragraph 70 of the Petition, including those in

the footnote appended thereto, and demands strict proof thereof.


proof thereof.

72. Bishop denies the allegations in Paragraph 72 of the Petition as stated, and

demands strict proof thereof.

73. Bishop denies the allegations in Paragraph 73 of the Petition as stated, and

demands strict proof thereof.


proof thereof.














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PRAYER FOR RELIEF

Bishop denies any and all allegations contained in the unnumbered paragraph beginning

“WHEREFORE, PREMISES CONSIDERED,” including all subparagraphs thereunder, and

specifically denies that Petitioner is entitled to any of the relief requested, or to any relief

whatsoever, as more fully discussed in Bishop’s Motion to Dismiss and supporting authorities

[doc. 13 and 28]. Bishop further affirmatively prays that the Petition be dismissed, with

prejudice, and that Petitioner be taxed with all costs including reasonable attorney fees incurred

by Respondent in defending this action.

RESPONDENT BISHOP’SCROSS-COMPLAINT

COMES NOW, Respondent David Bishop (“Bishop” or “Cross-Petitioner ”), pursuant to

Miss. Code Ann. § 23-15-951, and files this Cross-Complaint regarding the General Election

held in Madison County, Mississippi, on November 3, 2015, for the office of Supervisor, District

4. Bishop respectfully requests that this Court receive this Cross-Complaint, expeditiously set a

hearing, and declare the true results of the election, in accordance with the procedures outlined in

§ 23-15-951. In further support of his Cross-Complaint, Bishop shows as follows:

Parties

1. Respondent and Cross-Petitioner Bishop is an adult citizen of Madison County,

Mississippi. Bishop ran as the challenger in the November 3, 2015, Madison County Board of

Supervisors, District 4 election. His address is 149 Woodland Springs Drive, Ridgeland,

Mississippi 39157.

2. Petitioner and Cross-Respondent, Karl Banks (“Banks”), is an adult citizen of

Madison County, Mississippi. Banks ran as the incumbent in the November 3, 2015, Madison



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County Board of Supervisors, District 4 election. His address is 104 Southampton Circle,

Madison, Mississippi 39110.

Jurisdiction and Venue

3. This Court has jurisdiction to hear this Counterclaim, pursuant to Miss. Code

Ann. §§ 9-7-81 and 23-15-951. Cross-Petitioner timely files this Cross-Complaint, as it is

brought prior to any trial setting by the Court, and prior to disposition of Bishop’s pending

Motion to Dismiss [doc. 13], the granting of which by the Court will render Bishop’s Cross-

Complaint moot.

4.

Venue is proper in this Court, under Miss. Code Ann. §§ 11-11-3 and 23-15-951,

as the irregularities affecting the outcome of the election occurred in Madison County. Further,

the Cross-Respondent resides or can be found in Madison County, Mississippi.

Procedural Background

5. The election of the new Supervisor of the Madison County Board of Supervisors,

District 4, was held on November 3, 2015.

6. Thereafter, the Madison County Board of Election Commissioners (the “Election

Commission”) declared the results and pursuant to Miss. Code Ann. §23-15-601 certified the

election for Mr. Bishop and against Mr. Banks by a majority of two votes out of 4750 total votes

counted; with 2,376 votes for Mr. Bishop and 2,374 votes for Mr. Banks.

7. The certified results do not correctly reflect the number of votes legally cast for

each candidate in the election, to the extent detailed specifically below. There are a number of

irregularities surrounding certain absentee, affidavit, and curbside ballots that were counted, both

during the open polling hours and after the election.



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8. Bishop, through his duly designated representatives, timely conducted an

examination of the balloting materials, as provided by Miss. Code Ann. § 23-15-911, from

November 16 to 24, 2015.

9. Based on the canvassing by both poll managers and the Election Commission

after the polls closed, and based further on information observed during the statutorily-provided

examination of the balloting materials by Bishop’s representatives, the vote totals certified by the

Election Commission do not accurately reflect the number of votes legally cast for each

candidate, though the irregularities shown in this Cross-Complaint only reaffirm that Bishop was

correctly certified as the winner of the election. The evidence demonstrates, as a matter of law,

that at least one ballot cast for Bishop must be added to the vote totals, while 13 illegal ballots

cast for Banks must be deducted. Accordingly, Bishop timely files this Cross-Complaint.

One Absentee Ballot for Bishop Must be Added and At Least Five Absentee

Ballots for Banks Must be Subtracted From the Vote Totals.

10. Mississippi law requires strict compliance with the requirements governing

absentee ballots, including those requirements provided Miss. Code Ann. § 23-15-621 et seq., and

Miss. Code Ann. § 23-15-711 et seq. Absentee ballots that meet those requirements should be

accepted by poll managers and counted by the Election Commission, while absentee ballots (and

their corresponding ballot applications and ballot envelopes) that fail in one or more respects to

comply with the absentee ballot statutes are illegal votes, and must be rejected and not counted.

Here, the Election Commission neglected to count one absentee ballot that, on information and

belief, was cast for Bishop. Moreover, at least five absentee ballots that demonstrably were cast

and counted for Banks fail to meet one or more mandatory requirements under law, such that those

five votes must be deducted from the vote totals for Banks.



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11. One absentee ballot from Precinct 419 (Canton Precinct 3), that of voter Wilson A.

Harreld, was improperly excluded from and not counted in the vote totals certified by the Election

Commission. Mr. Harreld’s absentee ballot application and absentee ballot envelope meet the

mandatory requirements in accordance with Miss. Code Ann. § 23-15-621 et seq., and Miss. Code

Ann. § 23-15-711 et seq., such that his absentee ballot should have been marked “accepted” by the

poll managers and counted by the Election Commission. On information and belief, Mr. Harreld

voted for Bishop, and his vote should therefore be added to the votes cast for Bishop.

12. In that portion of Precinct 417 entitled to vote in Justice Court District 2, utilizing

ballot style “Canton Fire #4-10” (Canton Fire Precinct 4), only four voters in that sub-precinct

applied for, received, and cast absentee ballots in that sub-precinct. All four of their absentee

ballot envelopes were accepted, opened, and ballots counted. However, there are five absentee

ballots of style “Canton Fire #4-10” for that sub-precinct that were actually scanned and included

in the final vote count, all for Banks. Thus, there are five absentee votes that were counted in the

certified vote totals, but there are only four absentee ballot applications and absentee ballot

envelopes that were opened in the balloting materials. Such a discrepancy should not exist because

each absentee ballot counted must have a corresponding absentee ballot envelope and a valid and

complete ballot application for each voter in order to be a legal vote. The extra ballot, which by

definition was a vote for Banks, is an illegal vote, and must be deducted from the vote totals.

13. Another absentee ballot voted in that portion of Precinct 417 entitled to vote in

Justice Court District 2, utilizing ballot style “Canton Fire #4-10” (Canton Fire Precinct 4), must

be excluded from the vote totals. Voter Yumeka Rushing voted in Precinct 417 utilizing ballot

style “Canton Fire #4-10” by absentee ballot. However, Rushing’s address for voter registration

is 236 Lakeshire Parkway, Canton, MS, which is located in Precinct 410 (Lake Caroline



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Clubhouse). Thus, Rushing voted in the wrong precinct. This renders her ballot illegal under

Mississippi law, such that it must be deducted from the vote totals. Because all of the absentee

ballots counted in Precinct 417 subprecinct #4-10 were cast for Banks, this absentee ballot

necessarily was cast for Banks and must be deducted from his total number of votes.

14. Two absentee ballots voted in Precinct 418 (Madison County Baptist Family Life

Center) were improperly accepted by the poll managers and counted by the Election Commission

in the vote totals. Both of these absentee ballots must have been cast for Banks because all

absentee ballots in this precinct were voted for Banks:

a.

Sylvester Jordan cast a disabled absentee ballot in Precinct 418, but onJordan’s application for an absentee ballot, the voter marked no reason at all for receiving

an absentee ballot. Miss. Code Ann. § 23-15-717 requires, among other things, that a

voter’s absentee ballot application must specify the reason such voter is eligible to vote

absentee, must be properly signed by the voter, and must be witnessed. If a voter fails togive a reason entitling him or her to vote absentee, then that voter cannot be issued a legal

ballot. Here, because Jordan failed to indicate that he is disabled — and failed to give any

reason at all for voting absentee — this absentee ballot is illegal and must be deductedfrom the vote totals.

b. Robert Mr. Chinn cast an absentee ballot in Precinct 418 on the ground that

he would be out of the county on Election Day. However, Chinn’s absentee ballot must beexcluded from the vote totals because it fails to meet the requirements of Miss. Code Ann.

§ 23-15-639, which requires that a voter’s signature affixed to the absentee ballot

application match the voter’s signature affixed to his or her absentee ballot envelope. In

Chinn’s case, the signatures on his absentee ballot application and absentee ballot envelope plainly do not match, rendering this absentee ballot illegal, so that it must be deducted from

the vote totals.

15. An additional absentee ballot, voted by Leonice Goodloe in Precinct 416 (Canton

Precinct 5), must be excluded from the vote totals. Goodloe voted in Precinct 416 by absentee

ballot. However, Goodloe’s address for voter registration is 710 Wayne Drive, Canton, MS, which

is located in Precinct 524 (Bible Church Precinct), which is also located in Supervisor District 5.

Thus, Goodloe voted in the wrong precinct and the wrong Supervisor District. This renders her

ballot illegal under Mississippi law, such that it must be deducted from the vote totals. Because



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all of the absentee ballots opened and counted in Precinct 416 (Canton Precinct 5) were cast for

Banks, this absentee ballot necessarily was cast for Banks and must be deducted from his total

number of votes.

At Least Five Affidavit Ballots Cast for Banks Must be Subtracted From the Vote Totals.

16. At least six affidavit ballots were improperly counted, five votes for Banks and

one blank vote, even though the affidavit ballots failed to meet the mandatory requirements

provided by Mississippi law, specifically including Miss. Code Ann. § 23-15-573. Such

affidavit ballots are not legal ballots and therefore must be deducted from the vote totals.

17.

Two affidavit ballots cast by voters at Precinct 409 (Tougaloo Precinct) were

improperly counted by the Election Commission and must be deducted from the vote totals. In

both cases, the voters do not live in the Tougaloo precinct at the on-campus address they

provided, but instead live in other precincts in Madison County (and in other Supervisor

Districts). Lucy Clabon, aka Lucy W. Alexander, born 1962, voted by affidavit ballot at

Tougaloo and listed the college as her address but, on information and belief, lives in Cypress

Lake, Madison, MS, which is in Supervisor District 2 and Precinct 204 (Highland Chapel).

Kendrick Kenta Bailey, born 1979, also voted by affidavit ballot at Tougaloo and listed the

college as his address. On information and belief, his correct address is 110 Pine Knoll, Apt 132,

Ridgeland, MS, an address located in Supervisor District 1.

18. An affidavit ballot cast by a voter in Precinct 408 (Bear Creek), Doris L.

Langham, was cast in the wrong precinct, and, on information and belief, in the wrong

Supervisor’s District. The voter is registered to vote at 1719 Highway 51, Madison, MS, which

is located in Precinct 528 (Grace Crossing). In addition, the address provided by the affidavit

voter, 352 Nichols Road, Canton, MS, is actually in Supervisor District 5. This affidavit ballot



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was therefore not legally cast, was improperly counted for Banks by the Election Commission,

and must be deducted from the vote totals.

19. There were two affidavit ballots opened and counted in Precinct 411 (Twin

Lakes). One of those votes was cast for Banks, while the second was left blank in this race.

Both ballots must be deducted from the vote totals, however, because one was voted by a voter

who lives in another Supervisor District, and the other was voted by a voter who had been

purged from the voter rolls (and therefore was not a registered voter).

a. Darryl Jenkins voted by affidavit ballot in Precinct 411, listing his address

as 120 Brian Cr, Madison, MS. But this address is located in Supervisor District 3, not

District 4. Moreover, this voter was also reported as “voted” in the pollbook, whichshould not have occurred since he voted by affidavit ballot. On information and belief,

he may have voted on the voting machine as well as by affidavit, which would constitute

a double vote. At a minimum, his affidavit ballot is not a legally cast ballot and must be

deducted from the vote totals.

b. Jacqueline Jones also voted by affidavit ballot in Precinct 411, giving an

address of 159 Elverse Jones Dr., Flora, MS. However, on the voter roll, this voter islisted as having been purged from the voter roll. As an unregistered voter, her affidavit

ballot was therefore not legally cast, and must be deducted from the vote totals.

20. One affidavit ballot in Precinct 416 (Canton Precinct 5) was not legally cast

because the voter, Michael Ray O’dell, failed to give a current address in his affidavit. Such

information is required to be provided in order for the voter to demonstrate his right to vote in

Precinct 416 by affidavit ballot. Moreover, a complete current address is a mandatory part of the

voter affidavit required by Miss. Code Ann. § 23-15-573. Without this information, the voter

affidavit is insufficient under the statute, and the affidavit ballot cannot be counted for Banks in

the vote totals.

21. On information and belief, other affidavit ballots were cast for Banks in the

District 4 Supervisor race by voters who failed to meet the requirements for voting by affidavit

ballot, such that those votes would likewise be excluded from the vote totals. As Bishop’s



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review of poll book data, address data, and other evidence in this action is continuing, Bishop

will offer such proof of further illegal ballots during trial of this action.

Three Curbside Ballots Cast for Banks Must Be Subtracted From the Vote Totals.

22. In Precinct 416 (Canton Precinct 5), there were five curbside ballots counted, all

cast for Banks. However, three of these ballots were not legally cast, and therefore must be

excluded from the vote totals.

23. On information and belief, the Precinct 416 poll managers reported that six curbside

ballots were cast, and they admitted that two of the voters failed to sign the signature book. The

managers actually wrote down a list of the names of the six curbside voters. However, in the

canvass, only five actual curbside ballots were found and counted, all of them for Banks.

24. The signature books reveal that 375 voters signed the receipt books, with only four

of those signatures noted as “curbside votes.” GEMS shows that 371 machine ballots were cast in

that precinct, leaving the four curbside voters’ signatures.

25. Given that only four of the curbside voters signed the voter receipt book, yet five

curbside ballots were cast, one voter failed to sign the voter receipt book (even though the poll

managers reported that two curbside voters failed to sign). For such a vote to be legally cast, it is

mandatory for the voter to sign the voter receipt book, as provided by Miss. Code Ann. § 23-15-

541. The curbside vote of the voter who failed to sign the voter receipt book, cast for Banks, must

accordingly be deducted from his total number of votes.

26. Moreover, on information and belief, two of the curbside voters did not actually

live in Precinct 416 (Canton Precinct 5), but rather in Precinct 418 (Madison County Baptist

Family Life). These voters, Bobbie G Kelly, whose registration address is 315 Welch Street Apt

D, Canton, MS 39046, and Ezell Warfield, whose registration address is 840 Welch Street Apt C,



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Canton, MS 39046, voted in the incorrect precinct, such that their votes were cast illegally and

therefore must be excluded from the vote totals.

The Integrity of the Balloting Materials

27. During its initial canvas of the election returns, the Election Commission conducted

an unofficial hand count of the ballots cast in the race for Supervisor, District 4. The count was

done publicly, so that the candidates, representatives of each campaign, and the media were able

to observe the Election Commission as it processed the ballots. This processing of ballots

continued from Tuesday night November 3, 2015, through Thursday afternoon, November 5, 2015.

28.

The Election Commission processed affidavit ballots during the unofficial hand

count on Wednesday afternoon, November 4, 2015, and Thursday, November 5, 2015. Affidavit

ballot envelopes were first evaluated by the Election Commission to ascertain their legality under

Mississippi election law. When the Election Commission had made its determination of which

affidavit ballots envelopes met the mandatory requirements provided by law, the members of the

Election Commission opened the affidavit ballots. The Election Commission opened the

envelopes and publicly removed the affidavit ballots from the envelopes. The ballots and

envelopes were placed in separate stacks.

29. When the affidavit ballot envelopes determined by the Election Commission to be

legally sufficient were opened, the ballots were unofficially hand counted and remained separated

from the envelopes that had contained them. When the unofficial canvas was complete on the

afternoon of November 5, Election Commissioners placed and sealed the ballots themselves in one

strong box, while the empty envelopes, together with unopened rejected affidavit ballot envelopes,

were placed and sealed in a different box.



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30. Once the Election Commission had finished its unofficial hand count of the

Supervisor District 4 ballots, it canvased the election returns for the rest of Madison County on

Friday, November 6, 2015.

31. While the ballots and envelopes were sealed in separate strong boxes by the

Election Commission, no seal log was maintained, contrary to Mississippi law, such that there is

no way to determine whether the seals affixed to the ballot boxes have remained inviolate. There

is no way to tell if anyone broke seals, and then replaced new seals on the ballot boxes.

32. When the Election Commission met again on Monday, November 9, 2015, it

completed its canvas of the election returns. Because the time period for certain voters who voted

by affidavit ballot because they lacked voter identification to appear and offer identification to the

registrar had not yet elapsed, the Election Commission could not certify the official returns until

after Tuesday, November 10, 2015.

33. Because Wednesday, November 11, 2015 was the Veterans Day holiday, the

Election Commission met and certified the results of the General Election for Madison County

Supervisor District 4 on Thursday, November 12, 2015, based on its official count conducted

Monday, November 9, 2015.

34. However, on Tuesday, November 10, 2015, Petitioner/Cross-Respondent Banks,

and others affiliated with the Banks campaign orchestrated with two poll managers and District 4

Commissioner Azzie L. Jackson Adams to go to the Courthouse and attempt to alter and/or tamper

with certain affidavit ballot envelopes, thereby attempting to alter the outcome of the election.

When a quorum of the Election Commission arrived at the Courthouse, three Commissioners, led

by Commissioner Adams, in fact were granted access to the balloting materials, and Commissioner

Adams actually accessed affidavit ballots. On information and belief, one of the poll managers



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told another election official that she had been called to come to the Courthouse and sign ballots.

This attempt to tamper with and alter ballot envelopes is clearly illegal under Mississippi law.

35. The Election Commission at no time “re-stuffed” any affidavit ballots into opened

envelopes. On information and belief, the opened affidavit ballots were placed and sealed in the

same strong box as other paper ballots — in plain view of the public — on Thursday afternoon,

November 5, 2015, in advance of the official canvas of the Madison County election returns.

36. Yet, when Bishop and Banks conducted their respective ballot examinations the

week of November 16, 2015, as provided by Miss. Code Ann. § 23-15-911, both parties discovered

that opened affidavit ballots envelopes contained purported paper ballots.

37. Tampering, or attempting to tamper, with balloting materials is unlawful, and also

impugns the integrity of the balloting materials. Because of the absence of a seal log, and because

purported ballots of some kind appear to have been “stuffed” into opened affidavit ballot envelopes

by someone other than the Election Commission, and in light of the incident orchestrated by

Petitioner and others on November 10, 2015, there is a fundamental question surrounding the

integrity of the “re-stuffed” ballots. Strict proof that the purported ballots are authentic and

unaltered is therefore required before any such ballots are accessed, re-counted, or otherwise

offered in this action in an effort to set aside the certification of Bishop as the candidate receiving

the greatest number of legal votes cast in the November 3, 2015 General Election for Madison

County Supervisor, District 4.

Relief Requested

WHEREFORE, Cross-Petitioner David Bishop respectfully requests that this Court

receive and set this Cross-Complaint for expedited hearing, and upon hearing this action, award

the following relief in the form of a judgment for Bishop as follows:



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1. Declaring that Bishop was correctly certified as the winner of the November 3,

2015 General Election for Madison County Supervisor, District 4, and is the person having the

greatest number of legal votes at the election;

2. Ruling that the correct results of the November 3, 2015 General Election for

Madison County Supervisor, District 4 affirm that Bishop should be certified as receiving the

highest number of legally-cast votes for such office;

3. Adding at least one vote for Bishop to the number of legal votes cast in the

election, and deducting at least thirteen illegal votes cast for Banks, and further granting such

other relief as provided by law;

4. For costs of suit and other relief as the Court deems just and proper; and

5. For reasonable attorneys’ fees.

This, the 23rd day of December, 2015.

Respectfully submitted,

s/ James H. Herring____________________

JAMES H. HERRING, ATTORNEY FORRESPONDENT, DAVID BISHOP

JAMES H. HERRING, ESQ. (MSB #2380)

HERRING, LONG & CREWS, P.C.

P.O. BOX 344

129 EAST PEACE STREET

CANTON, MS 39046

TELEPHONE: (601) 859-2573

FAX: (601) 859-3955

EMAIL: [email protected]

CORY T. WILSON, ESQ. (MSB #10168)

HEIDELBERG STEINBERGER COLMER

AND BURROW, P.A.

P. O. BOX 16955

JACKSON, MS 39236-6955

TELEPHONE: 601-351-9444

EMAIL: [email protected]


mailto:[email protected]:[email protected]:[email protected]:[email protected]


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CERTIFICATE OF SERVICE

I, James H. Herring, do hereby certify that I have this day electronically filed a true and

correct copy of the above with the Clerk of the Court using the MEC system which sent

notification of such filing to:

Fred L. Banks, Jr., Esq. Dorsey R. Carson, Jr.

Phelps Dunbar, LLP Carson Law Group, PLLC4270 I-55 North 124 South Congress St., Suite 1336

Jackson, MS 39211 Jackson, MS 39201

Lisa M. Ross, Esq. Spence Flatgard, Esq.

P. O. Box 11264 210 E. Capitol St., Ste.1262

Jackson, MS 39283-1264 Jackson, MS 39201-2300

Wesley T. Evans, Esq.

The Evans Law Firm

P. O. Drawer 528Canton, MS 39046

This the 23rd day of December, 2015.

s/James H. Herring___________

JAMES H. HERRING


Documents

Bishop Answer and Cross Complaint