Selman orders election boxes opened after poll worker mistakes

By ED HOWELL
Posted 6/20/18

Due to poll worker mistakes during the June 5 primary, Circuit Judge Jerry Selman on Tuesday allowed Walker County election officials to break the seal on 29 ballot boxes to find lists showing …

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Selman orders election boxes opened after poll worker mistakes

Posted

Due to poll worker mistakes during the June 5 primary, Circuit Judge Jerry Selman on Tuesday allowed Walker County election officials to break the seal on 29 ballot boxes to find lists showing whether voters cast Republican or Democratic ballots.  

The mistakes — involving just more than 1,000 voters  — had threatened to hinder local implementation of the state's new law against crossover voting and throw into confusion who could vote in the July 17 Republican runoffs.  However, officials indicated they found the information they needed by late Tuesday after going through the documentation. 

More than 16,000 ballots were cast during the county's June 5 Republican and Democratic primaries, with all but about 1,300 votes cast by Republicans. 

Selman expressed reluctance during an hour-long hearing in Jasper about whether he had the authority to make such an order, but finally relented to the request from county officials, the sheriff runoff candidates, a representative of the Walker County Republican Party and an attorney from the Secretary of State's Office.

Only Nancy Scott, a representative from the Democratic Party — which will have no candidates for a runoff — objected to opening the ballots. The county Democratic Party chairman, Tim Bowen, and his usual stand-in, Shirley Mitchell, were not present. 

A request to unseal election boxes was filed by Brent Beal, the deputy attorney general for the Secretary of State's Office, leading to the hearing. 

At issue were 29 boxes out of 46 boxes where polling clerks failed to note whether each voter cast a Republican or Democratic ballot, using a "Rep" or "Dem" notation next to a voter's name. That matters with the 2017 state law that now forces voters, following a primary vote, not to crossover to vote with a different party in the runoff. 

In other words, if one voted in the Democratic primary on June 5, they cannot cross over into the Republican runoff on July 17. Those who did not vote at all in a primaries can vote in whichever party they wish to during a runoff. Everyone can vote as they like in the General Election in November. 

According to Beal's filing, "Because the poll list clerk(s) failed to notate voters' political party preference during the primary election, (Secretary of State John Merrill) has been notified and informed that the (Walker County) Board of Registrars is unable to post the party preference of voters in the computerized statewide voter registration list in order to comply" with the law. Merrill requested the boxes, known as the Record of Election containers, be unsealed to get poll clerks' lists and reseal the containers after the documents were retrieved. 

Officials explained to Selman the same point at the hearing, saying they needed to look at signed poll clerk lists, in envelopes 2D and 2R, to determine which party voters cast ballots for in 29 boxes. 

The identity of those polling sites were not made known during the morning hearing. An exception was in Argo, which also put a poll list in the wrong envelope and also needed to be retrieved. 

The envelopes would go to the Board of Registrars, which would designate the voters for the runoff based on the information provided, officials said. 

"No ballots will be touched. This is just to get the envelopes out of the box and reseal the box," Beal said. 

However, for about an hour Selman kept officials guessing as he second-guessed his authority to give the OK to unseal the boxes. 

"I have some trepidation to (open the boxes). I find no writing in the Code of Alabama giving me authority to open these boxes," Selman said, pushing Beal during the hearing to come up with written documentation or arguments that would allow him to do so. "My function is to follow the law, not to create the law." 

At one point, Selman noted the only written authority to open boxes that he could find was in 17-16-33 of the Code of Alabama, which gives party chairmen the authorization to take action, not judges. The only situations discussed in the section involved a contest of the results and when no certificate of the election results has been sent to the party chairman. 

Selman noted it is a misdemeanor crime to open the boxes with the returns without authority, adding it is a "serious proposition." At one point, he wondered if the better method was to challenge whether the procedure was proper after the runoff, saying that statutory interpretation only allows a judge to go do far in authority. 

Beal argued that a circuit judge has the broad power to take action, adding other judges around the state have set precedent by such decisions. He also noted that action was needed for the integrity of the elections and that sometimes new laws do not keep up with events, allowing for action from judges. 

As Beal continued to argue the judge had general authority, Selman noted he still had concerns, noting he wanted "a fair election that the community can have confidence in." 

However, when questioned around the room, officials indicated they wanted the boxes open. Bruce Bennett, standing in for Walker County Republican Chairwoman Linda Ensor, said, "To guarantee a fair election ... we have to have this information."

Sheriff Jim Underwood and his challenger, Nick Smith, indicated they had no problems with opening the boxes; the candidates for the probate judge's race did not show up.

Probate Judge Rick Allison also noted opening the boxes would help prevent voters from actually breaking the crossover law. 

With those approvals, and with encouragement from the Secretary of State's Office, Selman gave his approval in the end to opening the boxes in the first-floor annex courtroom that afternoon with the officials present. Officials indicated the process would take hours. 

Selman said he would only open and close the afternoon session, and ordered to be present, including Bennett, Circuit Clerk Susan Odom, Jane Harper from the Circuit Clerk's Office, Allison, Chief Clerk Angela Howard of the Probate Judge's Office (taking the place of the sheriff in the process as he is in an election), probate clerk Emily Riedel, and three investigators from the Sheriff's Department, Sgt. Ray Capps, Sgt. Darrell Mote, and Sgt. Charles Tidwell, as well as Rachel Williams and another other members of the Board of Registrars. 

Selman gave Scott the option to not participate if she didn't want to, as the Democrats were not involved in the runoffs. However, Scott was seen when the officials reconvened at 1:15 and participated in observing the relevant boxes being sorted out unloaded from a van in the back of the annex. 

The sheriff candidates indicated to the judge they were satisfied withe the actions to be taken. 

At 4:52 p.m., the court reconvened after officials went through the boxes and Allison indicated the documentation was found showing which parties the voters cast ballots for. The problems with the Argo box were also cleared up.

"It sounds like it was a successful endeavor today," Selman said, which Allison agreed with. 

Selman noted the boxes in the courtroom had been resealed, and also included some sheriff tape. Officials initialed the tape, and the investigators were ordered to take the boxes back to the trailer.