IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

2014-M-00967
IN RE: CHRIS McDANIEL PETITIONER



RESPONSE TO EMERGENCY PETITION FOR WRIT OF MANDAMUS

COMES NOW, RESPONDENT, GAYLE K. PARKER, Circuit Clerk of Harrison
County, Mississippi by and through her Attorney of Record, Tim C. Holleman, Boyce
Holleman & Associates, and files her Response to Emergency Petition for Writ of
Mandamus filed by the Petitioner, Chris McDaniel, and in response thereto would state
as follows:
I.
PETITIONER MISLEADS THIS HONORABLE COURT
The following assertions by the Petitioner are simply untrue and Petitioner or his
counsel know or should know them to be untrue:
1. Parker and her deputy clerks refused to give Petitioner access to all the election
materials from the June 24, 2014 primary runoff election.

All the election materials have been made available to the Petitioner or his
representatives. The only information which has been excluded from the original poll
books is the date of birth of all registered voters of Harrison County whether they
voted or not contained in the poll books or voter registration files. Other than one
E-Filed Document Jul 16 2014 13:52:32 2014-M-00967 Pages: 12
poor example
1
Petitioner has given no legitimate reason to have access to this personal
information of each and every registered voter in Harrison County whether they voted or
not.
2. Parker refused to permit access to original poll books and voting records used
for the purpose of assuring persons who voted in the June 3, 2014 Democratic
primary were not allowed to cast an unlawful vote in the June 24, 2014
Republican primary runoff election

The only records to Parkers understanding the Petitioner is referring to are the poll
books themselves. There are no other voting records in issue to best of Parkers
knowledge. Petitioner misleads this Honorable Court as Parker has NOT refused to
permit access to original poll books or ANY other voting records. All records have
been produced or made available to the Petitioner or his representatives, including the
original poll books, excluding the date of birth. Contrary to the Petitioners implications
to this Honorable Court, the Petitioners representative(s) were permitted access to the
original poll books they requested excluding
2
only the voters dates of birth (which
were redacted). Petitioners representatives actually inspected some of the original poll
books, before stopping their inspection on their own accord, then ultimately
commencing this litigation in the Circuit Court without attempting to examine the
remaining original poll books they requested, excluding the dates of birth.
3. By Parker blocking access to these election records, Petitioner was denied his
right to a full examination required by 23-15-911 and was accordingly unable to
fulfill the purpose of his examination.


1
Petitioners representatives in the news media have repeatedly and anecdotally referenced three people of the
same or similar names at the same address which they could not tell which one had voted without the date of
birth. No names or identity of the county has been given to verify such occurred. Certainly, Petitioners claims of
massive election fraud cannot be based on this one anecdote. Regardless if one of these voters was a cross
over vote nothing prevents the Petitioner from challenging such vote, pursuant to 23-15-571 and the date of
birth does not prevent such. During a proper challenge, Respondent submits the voter would have to be
identified, one would presume either by the Voter Registration Number (which is on the Poll Book) or the date of
birth.
2
Miss. Code Ann. 23-15-165 (6)(b).
First, Miss. Code Anno. 23-15-911 by its very terms applies only to the ballot
boxes and their contents. Poll Books are not part of the ballot boxes or their
contents. Second, Petitioner again misleads this Honorable Court, as the Court did not
block access to these election records as the only matter in issue was excluding the
dates of birth of all registered voters of Harrison County whether they voted or not
contained in the Poll Books.
4. Judge Clark ruled that Parker could restrict Petitioner's access to election
documentation, and more specifically Parker could restrict Petitioner's
examination to copies (not originals), with said copies having certain information
redacted.

Again Petitioner attempts to mislead this Court, as Judge Clark merely ruled
Parker was correct in, and would again, produce the
3
poll books after redacting the
personal information in this case the date of birth. Judge Clark never ruled Parker
could restrict Petitioner's examination to copies (not originals).. and Parker has not
offered to produce only copies (not orginals). Petitioners counsel has been advised
the original poll books are available for inspection with dates of birth redacted therefrom.
Yet neither the Petitioner nor his representatives have availed themselves of the
opportunity to so as of the date of this Response.

II.
THE SKY IS NOT FALLING
When the casual reader reads Petitioners rather broad claims (e. g.1. he is being
denied access to election records; 2. denied his right to a full examination or 3. he is
unable to fulfill the purpose of his examination) they are obviously lead to believe
some scurrilous actions have taken place and the sky is falling around the election laws

3
The originals.
of this State. However, when you sort through it, ALL the Petitioner has been denied
access to is the date of birth and age information of each and every registered voter
in Harrison County, Mississippi, whether they voted or not. Petitioner asserts he seeks
examination of the Poll Books for purpose of assuring persons who voted in the June 3,
2014 Democratic primary were not allowed to cast an unlawful vote in the June 24,
2014 Republican primary runoff election. The Poll Books excluding the date of birth
and age information will do exactly as Petitioner desires, he just refuses to examine
them. His claims are frivolous and quite frankly ridiculous in this regard. There is
simply no legitimate argument that the examination of the Poll Books without the voters
date of birth will assure persons who voted in the June 3, 2014 Democratic primary
were not allowed to cast an unlawful vote in the June 24, 2014 Republican primary
runoff election.
Petitioner provides no evidence to support how the date of birth and age
information would reveal such and it would not. The original poll books excluding the
date of birth and age information which have been made available to the Petitioner
would show if a voter voted in the Democratic primary then voted in the Republican
primary. Petitioner asserts there may be voters of similar names with the same
addresses and Petitioner will not be able to distinguish between them without the dates
of birth. Petitioner does not assert such situation exist in the original Poll Books of
Harrison County because Petitioner has NOT taken the opportunity examine the original
Poll Books excluding the date of birth and age information. If such does exist it can
be handled on a case by case basis and NOT by disclosing to any person the
personal information of every voter in Harrison County in violation of Miss. Code Anno.
23-15-165 (6), whether they voted or not or whether they voted in the Democratic
primary or the Republican primary or not. Miss. Code Ann. 23-15-575 addresses
cross over voting; and Miss. Code Ann. 23-15-571 addresses the method of
challenging such votes. The date of birth or age information affects nothing in this
regard and Petitioners offers nothing to explain how the exclusion of date of birth or age
information would affect a challenge of such a vote IF it exists. Simply IF an illegal
cross over vote occurred in Harrison County, then that vote will be shown by the Poll
Books regardless of the date of birth being excluded The voters identity is known by
their name, address, voter identification number and the date of birth which is still
available should a challenge be made. A challenge pursuant to Miss. Code Ann. 23-
15-571 o 23-15-575 would be available to that vote regardless of the exclusion of any
date of birth or age information. The sky will not fall if Petitioner or his many
representatives cant see every voters, in Harrison Countys or any other county in this
State, date of birth regardless if they voted or not.
III.
MISS. CODE ANNO. 23-15-165

The Mississippi Legislature
4
passed Miss. Code Anno. 23-15-165, which
specifically addressed voter registration records. Poll Books are simply a print out of
the voter registration records and include the date of birth provided by the registered
voters in addition to their name, address, voter identification etc. The Mississippi
Legislature
5
specifically adopted as part of the election laws the Mississippi Public
Records Act of 1983 in 23-15-165(6), with respect to the production of these voter
registration records, which includes the original poll books:

4
Which included the Petitioner and one of his attorneys of record, Michael D. Watson.
5
Which included the Petitioner and one of his attorneys of record, Michael D. Watson.
Miss. Code Ann. 23-15-165(6)(a) which specifically provides:
Social security numbers, telephone numbers and date of birth and age
information in statewide, district, county and municipal voter registration
files shall be exempt from and shall not be subject to inspection,
examination, copying or reproduction under the Mississippi Public
Records Act of 1983.

(emphasis added).

Miss. Code Ann. 23-15-165 (6)(b) which specifically provides:
(b) Copies of statewide, district, county or municipal voter registration
files, excluding social security numbers, telephone numbers and date
of birth and age information, shall be provided to any person in
accordance with the Mississippi Public Records Act of 1983 at a cost not
to exceed the actual cost of production.

(emphasis added).

Gayle K. Parker, as the duly elected Circuit Clerk of Harrison County, Mississippi, is
required to follow the election laws of this State including Miss. Code Ann. 23-15-165
(6)(a) and (b)
6
above. The registers voters of Harrison County, Mississippi whether they
voted or not have a right to expect Mrs. Parker to perform her duties as Circuit Clerk
under Miss. Code Ann. 23-15-165 (6)(a) and (b) as well as the other statutes cited by
the Petitioner
7
.






6
Petitioner has totally avoided discussing these provisions of the election laws barely mentioning it at p. 13 of his
Petition. The central issue in this Petition and the Petitioner devoted a total of one sentence to both. Why?
Because he cant dispute exactly what it says. Instead he relies on 23-15-911 which applies only to ballot
boxes and their contents.
7
Although the other statutes cited by Petitioner have nothing do with poll books but primarily ballot boxes and their
content.
IV.
PETITIONER REFUSES TO EXAMINE THE ORIGINAL POLL BOOKS
WITHOUT EXCLUDING THE DATE OF BIRTH AND AGE INFORMATION OF
THE ALL VOTERS CONTRARY TO LAW.

There are good and logical reasons that the Mississippi Legislature
8
saw fit to provide
this exemption and/or exclusion as it is a matter of common knowledge that dates of
birth and age information may be used for the purpose of committing identity theft,
which is a felony under Section 97-19-85. See Attorney Generals Opinion No. 2013-
00077, 2013 WL 1720563 (Miss. A.G.) [It is a matter of common knowledge that social
security numbers and birth dates are used for the purpose of committing identity theft,
which is a felony under Section 97-19-85
9
. (emphasis added)]. Miss. Code Anno. 23-
15-165 was adopted in 2006 for good reason. It is not part of the Mississippi Public
Record Act of 1983, but this election law clearly adopts the Mississippi Public Records
Act of 1983 with respect to social security numbers, telephone numbers and date of
birth and age information contained in voter registration records and any person
who request inspection or examination thereof. Does a voter have a right to expect
the Circuit Clerk to protect their personal information from disclosure to persons beyond
the control of the persons employed to handle elections? Miss. Code Anno. 23-15-165
was adopted in 2006 for good reason.

8
Including Petitioner and his attorney, Mr. Watson.
9
Under the Federal Identity Theft and Assumption Deterrence Act of 1998 being 18 USC 1028 , et seq. date of
birth is one of the identifying items protected:

(3) the term means of identification means any name
or number that may be used, alone or in conjunction with
any other information, to identify a specific individual, including
any
(A) name, social security number, date of birth, official
State or government issued drivers license or identification
(emphasis added)

See e. g. U. S. v Zuniga-Arteaga, 2010 U. S. Dist. Lexis 138960 (U.S.Dist Ct. N.D FL 2010).
With all that has transpired in these primary elections such is a serious concern
for all voters, whether they voted or not, whose personal information may be contained
in the Poll Books. The issue of identity theft did not exist, at least to the extent it does
now, when the cases espoused by Petitioner were decided. Protection of personal
information is of vital importance in this day and age. The redaction of the date of birth
and age information of the voters contained in the poll books is not an impediment to
challenging a cross over vote as prohibited by Miss. Code Ann. 23-15-575 pursuant to
Miss. Code Ann. 23-15-571.
V.

MISS. CODE ANN. 23-15-911 BY ITS SPECIFIC PROVISIONS
APPLIES ONLY TO THE BALLOT BOXES AND ITS CONTENTS
AND DOES NOT APPLY TO VOTER REGISTRATION RECORDS
OR POLL BOOKS

AND

POLL BOOKS ARE NOT PART OF THE BALLOT BOXES AND
CONTENTS

Petitioner appears to be laboring under the misconception that Poll Books are
part of the ballot boxes and contents of the ballot boxes. They are NOT!! Miss. Code
Ann. 23-15-911 has no application to a Poll Book. Petitioners Supplement does not
cite a single law or case that holds that Poll Books are part of the ballot box or its
contents. In fact, every statute cited in the Supplement applies to ballot boxes and
their contents not Poll Books.
Miss. Code Ann. 23-15-911, specifically applies to only to the ballot box and its
contents:
At any time within twelve (12) days after the canvass and examination
of the box and its contents by the election commission or executive
committee, as the case may be, any candidate or his representative
authorized in writing by him shall have the right of full examination of said
box and its contents upon three (3) days' notice of his application
therefor served upon the opposing candidate or candidates, or upon any
member of their family over the age of eighteen (18) years, which
examination shall be conducted in the presence of the circuit clerk or his
deputy who shall be charged with the duty to see that none of the
contents of the box are removed from the presence of the clerk or in any
way tampered with. Upon the completion of said examination the box
shall be resealed with all its contents as theretofore.

Petitioners reliance on Miss. Code Ann. 23-15-911 is totally misplaced as it has
no application to the Poll Books. However, Parker does not assert that Petitioner does
not have a right to examine the Poll Books only that the personal information must be
excluded to protect the voters, whether they voted or not.
VI.

Petitioner does not want to pay the actual cost of redacting or
excluding the date of birth and age information of all voters contained
in the Poll Books.

Another exaggeration by Petitioner. Petitioner claims it will cost him $82,000.00 to
examine the poll books of in all 82 counties in Mississippi. First, Petitioner has asserted
that 60 of the 82 Circuit Clerks did not follow the law, therefore he has paid nothing for
such examination so thats not true. Second, most of the smaller counties do not have
60 precincts, therefore do not have 120 poll books (Democratic and Republican) as
Harrison County does. Miss. Code Ann. 23-15-165(6)(b) specifically addresses such
by stating such information shall be excluded in accordance with the Mississippi Public
Records Act of 1983 at a cost not to exceed the actual cost of production. The
candidates have a right to inspect the ballot boxes and its contents free of charge, but
the candidates do not have a right to the personal information (date of birth or age
information) of every registered voter in Harrison County whether they voted or not.
This is for the protection of the voters to prevent identity theft. Third, the taxpayers of
Harrison County should not be subsidizing the campaigns of any candidate or party by
providing actual cost of the research, copying, and review of records requested free of
charge which is what the Petitioner seeks. If Petitioner can spend millions of dollars on
TV advertising, Robo calling etc., he can spend less than a $1,000.00 to prevent the
taxpayers from paying for him.
XIV.
JURISDICTION
The Circuit Court did not reach the issue of jurisdiction either under Miss. Code
Anno. 23-15-165 (6)(a) or (b), therefore this is not an issue that needs to be decided at
this juncture. In otherwords, the Circuit Court did not dismiss based upon lack of
jurisdiction. However, the Mississippi Legislature
10
adopted Miss. Code Ann. 23-15-
165(6)(b) which specifically provides:
(b) Copies of statewide, district, county or municipal voter registration
files, excluding social security numbers, telephone numbers and date of
birth and age information, shall be provided to any person in accordance
with the Mississippi Public Records Act of 1983 at a cost not to
exceed the actual cost of production.

The Circuit Clerk however did assert that based upon Miss. Code. Anno. 23-15-
165(6)(a) and (b), the Petitioner should follow the Mississippi Public Records Act of
1983 if dissatisfied with the assertion of the either an exemption or the determination of
actual cost of production and NOT by way of mandamus. Here Petitioner are seeking
mandamus to make the Circuit Clerk violate the law [Miss. Code. Anno. 23-15-
165(6)(a) and (b)] and not to do or not to do an act the performance or omission of

10
Including Petitioner and his attorney, Mr. Watson.
which the law specially enjoins as a duty resulting from an office... See Miss. Code
Anno. 11-41-1. Respondent does assert that Miss. Code Anno. 11-41-1 states that
Mandamus is only available where there is not a plain, adequate, and speedy remedy
in the ordinary course of law, therefore Petitioners Petition is improper. Plaintiff has a
plain, adequate, and speedy remedy in the ordinary course of law by virtue of Miss.
Code Anno. 23-15-165(6)(a) and (b) and 25-61-13 which they should have pursued.
WHEREFORE, PREMISES CONSIDERED, RESPONDENT, GAYLE PARKER,
CIRCUIT CLERK OF HARRISON COUNTY, MISSISSIPPI files this her Response to
the Emergency Petition for Mandamus and prays that upon hearing that the Petition be
dismissed with prejudice and that the Respondent be awarded costs and attorney fees
in accordance with Miss. Code Ann. 11-55-5, et seq.
Respectfully submitted this the 16
th
day of July, 2014.
GAYLE PARKER, CIRCUIT CLERK OF
HARRISON COUNTY, MISSISSIPPI,
RESPONDENT
BY AND THROUGH HER ATTORNEYS
BOYCE HOLLEMAN & ASSOCIATES
BY: s/ Tim C. Holleman


Tim C. Holleman (Ms Bar #2526)
BOYCE HOLLEMAN & ASSOCIATES
1720 23
rd
Ave./Boyce Holleman Blvd.
Gulfport, MS 39501
Telephone: (228) 863-3142
Facsimile: (228) 863-9829
Email: tim@boyceholleman.com
CERTIFICATE OF SERVICE

I, Tim C. Holleman, do hereby certify that I have this caused to be filed via the
MEC filing system a true and correct copy of the foregoing pleading, which transmitted a
copy to all counsel of record.
This, the 16
th
day of July, 2014.

s/Tim C. Holleman
Tim C. Holleman





Tim C. Holleman (Ms Bar #2526)
BOYCE HOLLEMAN & ASSOCIATES
1720 23
rd
Ave./Boyce Holleman Blvd.
Gulfport, MS 39501
Telephone: (228) 863-3142
Facsimile: (228) 863-9829
Email: tim@boyceholleman.com