Hale County votes in court

by Jerry Hinnen / Demopolis Times    07 March 2005

The voting controversy in Hale County has begun having its day in court.

Montgomery circuit court judge William Shashy called an emergency court session for Friday morning to begin legal proceedings in Vanessa Hill's contest of J.B. Washington's election to the Greensboro mayor's office.

At the heart of the Hill's contest are the 254 absentee ballots cast in the September 14 election. Hill has motioned, through her attorney, Walter E. Braswell of Birmingham, that these ballots be inspected by the court. According to statements made during the Friday hearing, the ballots will, however, remain sealed unless opened by court order.

According to Wilcox County attorney William M. Pompey, representing Washington, those ballots should remain sealed.

"We have no reason to start invading the sanctity of the ballot box," he said after the hearing. "We all know what happened in Florida and Baldwin County, but they didn't invade the ballot box. They just made sure the ballots were counted properly."

Pompey argued during the hearing that without more specific reasoning from Hill, there was not enough cause for the court to open the ballots for inspection. Inspecting the ballots without first establishing cause, Pompey said, was the equivalent of a "witch hunt."

"They are not alleging anything specific," Pompey said afterwards. "If you said something happened, you're supposed to be able to say where and when it happened...if they believe there have been illegalities, they are using the wrong process. They should contact the DA. They shouldn't be using this process to get to the criminal process."

Braswell disagrees, saying that the law does not require any kind of specific allegations before the ballots are presented for inspection.

"We have the right of inspection," he told the court. "Absentee voters clearly do not have the same protection as someone who votes the day of election."

At odds are two sections of the Alabama law pertaining to election contests. For Hill and Braswell's case, 17-8-45 states "In all election contests other than political party primaries or run-offs, any person or candidate involved in the contest is entitled to make an examination of the ballots cast, given, or rejected in the election." Pompey argued section 17-15-21, which states, "No testimony must be received of any illegal votes or of the rejection of any legal votes in any contested election... unless the party complaining thereof has given to the adverse party notice in writing of the number of illegal votes and by whom given and for whom given."

But Braswell argued that the reference to testimony indicated that this section of code applied to the trial phase of a contest only, and not to a motion asking only for the inspection of ballots. Pompey then referred to another pertinent section of code, but could not immediately recall the section or locate it in the code book. Judge Shashy, having already established a second hearing to be held in the Hale courthouse in 20 days, postponed any definitive ruling on the matter until then.

Shashy's initial motivation for a second hearing is the issue of whether Hill submitted a necessary security bond at the time of her contest of the election. Braswell stated that Hill had tried to submit a bond alongside her initial contest, but that Hale Circuit Clerk Gay Nell Tinker did not know the proper amount for the bond and asked to get back with her. Although according to Braswell this procedure is not uncommon, he told the court Tinker then waited until early November, several days after the legal deadline for the bond's submission, to inform him or Hill of the type or amount of the bond.

Pompey disputed Braswell's chain of events, producing a letter he said was sent to Braswell's office on October 1 with the appropriate bond information. Braswell disavowed any knowledge of the letter, however.

"I have never seen this before," he told Judge Shashy.

At stake is the entire legality of Hill's contest, which could be declared null if Shashy ruled that Hill had not submitted the bond on time. Afterwards, both lawyers individually continued to insist on their version of the events. Pompey asked how Hill would have known the proper amount for her bond (which was accepted by Tinker on November 11) if Braswell had never received the letter; Braswell later responded that his secretary had received a voice message, likely from Tinker, naming the correct amount.

Shashy, for his part, declined to rule on the matter and set the next hearing 20 days later, by which point code or precedent may be found to settle the issue. The lack of resolution on any point may have frustrated some in attendance, but Braswell sympathized with the judge.

"I think Judge Shashy is determined to be as thorough and as deliberate as possible," he said. "This is not something that comes up a lot, it's not his courtroom, there's no law clerk...it doesn't bother me."

Braswell expressed confidence that both issues, the timing of the bond and the need for specific allegations, would be resolved in Hill's favor.

"Was the bond too late? I don't expect him to say that," Braswell said. As for the testimony question, he added "We're not to the trial section of the process...I think it's pretty clear."

Pompey, noting that at no point in her complaint or motion did Hill claim to have won the race, expressed confusion as to the entire point of the proceedings.

"There's no basis for being here," he said. "Look at the complaint itself. Nothing in it alleges [Washington] lost the race. If something's wrong, find out what's wrong...I wish I could explain why I'm here. I don't see it."