Ivey Hines and Melissa Strother
ALBANY ALBANY, Ga. — Superior Court Judge Joe Bishop has ruled in favor of Albany City Commissioner Ivey Hines’ motion to dismiss a suit by his election opponent, Melissa Strother, who contested the results in Dougherty Superior Court.
Bishop stated that the election challenge had to be dismissed because the special process under Georgia Code was not followed when Strother filed her appeal. Hines filed his motion to dismiss based on the fact that all the necessary parties in the case had not been properly served with the suit — specifically that Strother served Ginger Nickerson, the elections supervisor, when the law states that the elections superintendent, which in this case would be the elections board, should have been served.
And while Hines will get to keep his Ward II commission seat, Bishop said Dougherty elections officials showed “indifference” to informing voters that any ballots cast for the third, disqualified candidate in the race, Cheryl Calhoun, would result in their votes being nullified.
He said that if his ruling is overturned on appeal, there were enough irregularities in the election to require that the results be decertified and a special runoff election between Hines and Strother should be called.
Bo Dorough's Full statement
Ms. Nickerson provided the poll managers for each of the four precincts in Ward 2 with a notice, advising voters Cheryl Calhoun had withdrawn from the race and that any votes cast for her would not be counted.
She did not advise the poll managers where the notice should be posted, nor did she provide any instructions as to how they should assist individuals regarding Ms. Calhoun’s disqualification. There was no evidence that she visited any of the polling places to verify whether the notices were posted and if they were, where and how they were posted. Ms. Nickerson sought no advice or guidance, regarding the distribution and prominent display of the notices, from the office of the Secretary of State, other election supervisors, or the county attorney.
Unfortunately, she accepted no responsibility for the calamity which occurred on election day, and her testimony convinced Judge Bishop: “Ms. Calhoun’s disqualification was an afterthought or a matter of indifference for Ms. Nickerson and the Board of Elections”.
The court found that the notices were deficient, as the notices stated Ms. Calhoun had withdrawn, when in fact she had been disqualified. The poll managers were further found to be negligent, as they did not seek instructions concerning display of the notice, nor did they take the initiative to take and/or make additional copies of that form.
Indeed, one precinct manager, who taped the notice on one of four registration tables at the precinct, testified no notices were placed on the other tables because: “We had only one notice”.
Judge Bishop found the Board of Elections must take a more effective management and oversight role in every election. Thus, it is somewhat ironic that Ms. Strother’s election contest has been dismissed because the suit was filed against Ms. Nickerson rather than the Board of Elections.
The community will, hopefully, insist that the Board of Elections be more proactive in assuring citizens who exercise their civic duty are properly informed their votes will not be counted when, in the future, a candidate withdraws or is disqualified. The Board of Elections must, in the interim, accept responsibility, and hold the election supervisor to account, for the blatant mismanagement of the special election held on November 8, 2011.
Ms. Strother’s desire to serve and improve this community should be an inspiration to us all. I regret that procedural mistakes I made prevented her from receiving a fair election, as Judge Bishop ruled the election would have been invalidated had we named and served the Board of Elections.
Calhoun received 204 votes in the election, which local elections officials, after consulting with state officials, eventually nullified. If those ballots had counted against the total cast as irregular ballots, Hines would not have had the simple majority needed to win the seat outright.
Bishop found in favor of Hines on his appeal and against an attempt by Strother to amend the service of her complaint on Dec. 19, after the Dec. 2 hearing. The judge said the case was not the type in which a party can simply file a motion to substitute and that she failed to show any excuse or justification for the failure to name and serve new parties earlier.
Maurice King, the attorney for Hines, congratulated his client Wednesday on retaining his seat, but said he disagreed with the court’s contention that there were irregularities.
“I’m glad that he upheld the election in Mr. Hines’ favor, I just want to congratulate him on his victory,” King said. “I would disagree with the court that there would be irregularties. I feel that, if the case were to be challenged to the Supreme Court of Georgia, that Mr. Hines would succeed.”
If Strother appeals the case and his ruling is reversed, Bishop said, then there is sufficient reason to decertify the Nov. 8, 2011 results and call for a runoff election between Hines and Strother.
Bo Dorough, Strother’s attorney, issued a statement Wednesday accepting responsibility for filing the suit against the wrong person, but pointed to the fact that Strother’s claims against elections officials were upheld by the court.
“Judge Bishop found the Board of Elections must take a more effective management and oversight role in every election. Thus, it is somewhat ironic that Ms. Strother’s election contest has been dismissed because the suit was filed against Ms. Nickerson rather than the Board of Elections,” Dorough wrote. “The community will, hopefully, insist that the Board of Elections be more proactive in assuring citizens who exercise their civic duty are properly informed their votes will not be counted when, in the future, a candidate withdraws or is disqualified.
“The Board of Elections must, in the interim, accept responsibility, and hold the election supervisor to account for the blatant mismanagement of the special election held on Nov. 8, 2011. Ms. Strother’s desire to serve and improve this community should be an inspiration to us all. I regret that procedural mistakes I made prevented her from receiving a fair election, as Judge Bishop ruled the election would have been invalidated had we named and served the Board of Elections.”
When asked if Strother intended to appeal the ruling, Dorough said that she hadn’t made him aware of that decision.
Even though elections officials placed a “Withdrawn Candidate Notice” at each precinct in the ward, Bishop said the elections office “disregarded and thereby violated the requirement that a prominent notice shall be placed at each affected polling place.” He went on to say that elections officials made no effort to notify voters of Calhoun’s disqualification, nor did they tell voters that a vote for Calhoun would be voided.
“Citizens who have gone to the trouble of making time to go to the polls to exercise their franchise and to perform their civic duty to participate in governance need to know that voting for a withdrawn candidate results in rendering their efforts, at least to that one contest, entirely nugatory,” the judge wrote.
Bishop said any votes for Calhoun had to be considered irregular because the elections office failed to comply with the elections code in advising voters of her disqualification.
“The evidence presented at the hearing confirms Mrs. Calhoun’s disqualification was an afterthought or a matter of indifference for Ms. Nickerson and the Board of Elections,” he wrote.
Bishop said that “if the service of process and joinder rulings herein are reversed by an appellate court, this court finds that more than sufficient irregular ballots were cast to place the result of the election in doubt. Thus, no candidate had a majority which necessitates a special election for the Ward 2 City Commission seat held on Nov. 8, 2011 and schedule a special runoff.”
Time is now the issue facing Strother.
City officials say that the Ward II seat will come up for re-election again in November 2013.
In an outcome most favorable to Strother, the small business owner could find herself in office with only months left before the seat was due to be up again, depending on how much time it took the appellate court to make a decision, assuming that the court will rule in her favor and that she could win an election runoff against Hines.
Bishop heard arguments from King, Dorough, City Attorney Nathan Davis and County Attorney Spencer Lee during a hearing on Dec. 2 at the Dougherty County Courthouse.
Bishop, who is the chief judge of the Pataula Judicial Circuit, was appointed to hear the case after Chief Dougherty Superior Court Judge Willie Lockette recused the judges in the circuit from considering the matter due to real or perceived conflicts of interest.