Case: 45CI1:12-cv-00073-c Document #: 1 Filed: 03/20/2012 Page 1 of 6

DON BATES PETITIONER

LEE WESTBKUOK
CIRCUIT _]<:
JOHN BROWN, KAREN POWELL, AND CAUSE NO. ec, ;ljj cJ_.,. '/J _,
vs.
JOHNNIE ROGERS, IN THEIR CAPACITY
AS ELECTION COMMISSIONERS FOR THE
CITY OF CANTON SPECIAL ELECTION
FOR BOARD OF ALDERMEN, WARD 2 RESPONDENTS
PETITION FOR WRIT OF MANDAMUS
COMES NOW, Don Bates, Petitioner, by and through his attorneys, C.R. Montgomery
and John P. Martin of Montgomery McGraw, PLLC, and files this, his Petition for Writ of
Mandamus, requesting that this Court mandate that City of Canton election commissioners John
Brown ("Commissioner Brown"), Karen Powell ("Commissioner Powell"), and commission
chairperson Johnnie Rogers ("Commission Chair Rogers") (collectively, the "Election
Commissioners") deliver a Certificate of Election for the March 13, 2012 special election for
Ward 2 Alderman, City of Canton, Mississippi (the "Election"), as required under Mississippi
Code 23-15-611, and, in support thereof, would show unto this Court the following:
FACTUAL BACKGROUND
1. Petitioner Don Bates ("Bates") is a candidate for Ward 2 Alderman for the City of
Canton, Mississippi. The Election was held on Tuesday, March 13, 2012, with candidates
including Bates and Edward Thompson ("Thompson"), Johnny Lee Burse, Jr. ("Burse"), Cal
Bland, Sr. ("Bland"), and Natwassie Truly ("Truly"). Following the closing of the polls on that
date, the election managers returned the votes to the Election Commissioners.
2. The Election Commissioners reviewed the votes, and upon information and belief,
the regular and absentee ballots ( 469 in total) were distributed as follows:
Bates 271
Thompson 102
Truly 63
PETITION FOR WRIT OF MANDAMUS- Page 1
Case: 45CI1:12-cv-00073-c Document #: 1 Filed: 03/20/2012 Page 2 of 6
Bland 19
Burse, Jr. 14
3. In addition to the regular and absentee ballots, seventy-eight (78) affidavit ballots
had been cast, and the Election Commission announced that it needed additional information in
order to determine their validity, as the residences of the voters casting them needed to be
verified. Bates was notified that a meeting would be held at 10:00 a.m. the next morning,
Wednesday, March 14, 2012, for that purpose.
Wednesday, March 14,2012
4. Petitioner Bates arrived at City Hall in Canton, Mississippi ("City Hall") by 10:00
a.m. At roughly 11 :00 a.m., Bates joined the Election Commissioners at the Madison County
Circuit Clerk's office in order to determine the residences of the affidavit voters. After this
information had been obtained, a meeting was set for 4:00p.m. at City Hall in order to go
through the affidavit ballots and complete the election certification process.
5. Among those in attendance at the 4:00p.m. meeting were all three members of
the Election Commission, Bates, Thompson, and a representative for candidate Truly. During
the meeting, it was agreed by the Election Commission that thirty-three (33) out of seventy-eight
(78) affidavit ballots would be accepted for counting. The Election Commission also agreed,
unanimously, that twenty-six (26) ofthe remaining forty-five (45) ballots would not be accepted,
as these ballots had been signed by persons not residing within Ward 2. Another nineteen (19)
affidavit ballots were called into question, either because they were believed to have been cast by
unregistered voters or because they had been cast by persons not living within the ward.
6. As the 4:00p.m. meeting- which lasted roughly two (2) to three (3) hours-
worked towards conclusion, Commissioner Brown began to express a need to reexamine the
twenty-six (26) affidavit ballots the Election Commission had previously decided not to count,
based upon the Election Commission's finding that they had been signed by persons living
outside of Ward 2. Commissioner Brown announced that he wanted to confer with an attorney
on the matter. Commissioner Powell also announced that she would like to consult with the
Mississippi Secretary of State's Office regarding the Election Commission's decision.
7. The 4:00p.m. meeting was thus adjourned in order for the Election Commission
to seek further guidance.
PETITION FOR WRIT OF MANDAMUS- Page 2
Case: 45CI1:12-cv-00073-c Document #: 1 Filed: 03/20/2012 Page 3 of 6
Thursday, March 15,2012
8. Petitioner Bates was notified the following morning, Thursday, March 15, 2012,
that an Election Commission meeting would be held at 1:30 p.m. Later, Bates was notified that
the Election Commission in fact would not meet at that time. Still later, Bates was notified that
the Election Commission would not meet at all on Thursday, and instead would meet Friday
morning at 10:00 a.m.
9. During his conversations with Election Commission members, Bates learned that
the Election Commission had sought the opinion of the Mississippi Secretary of State's Office -
Elections Division, the Mississippi Attorney General's office, and a local attorney, regarding
their affidavit ballot certification questions. At all times, the Election Commission was advised
that the following categories of affidavit votes could not be counted:
(a) affidavit ballots cast by persons residing outside of Ward 2;
(b) affidavit ballots cast by individuals who were not registered to vote;
(c) affidavit ballots which had not been signed by a poll manager.
10. In numerous conversations with Bates, Commission Chair Rogers expressed a
willingness to certify the election, and an opinion that the Election Commission was adequately
informed in order to carry out its duties. However, Commission Chair Rogers also expressed
that she was having difficulties in finding a time at which the other Election Commissioners
could meet, or in persuading the other Election Commissioners to meet and certify the election.
Friday, March 16, 2012
11. Petitioner Bates arrived at City Hall by 10:00 a.m. on Friday, March 16, 2012.
Commission Chair Rogers arrived shortly afterwards, and conferred by telephone with the other
Election Commissioners. Bates was then informed that the Election Commission was not
available to meet during the morning, but would meet at 1:00 p.m.
12. At roughly 1 :30 p.m. on Friday, March 16, 2012, Commissioner Brown and
Commissioner Powell arrived in their vehicles outside of City Hall and met in the parking lot
behind the building for fifteen to twenty-five minutes. By 2:00p.m., Commissioner Brown and
Commissioner Powell entered City Hall, stating that they had been holding discussions regarding
the election, but that they were not ready to move on with the certification of the election. The
two left shortly thereafter. Commission Chair Rogers informed Bates that the other Election
PETITION FOR WRIT OF MANDAMUS - Page 3
Case: 45CI1:12-cv-00073-c Document #: 1 Filed: 03/20/2012 Page 4 of 6
Commissioners needed to obtain further guidance from the Mississippi Secretary of State's
Office in order to proceed.
13. Commission Chair Rogers then called a meeting for 4:00p.m. at City Hall.
Commissioners Brown and Powell arrived at City Hall at that time and met with Commission
Chair Rogers in the hallway outside the meeting room. Commissioners Brown and Powell
indicated an unwillingness to enter the room (where previous meetings had been held), so
Commission Chair Rogers asked all observers to leave the room. Bates, along with several
citizens and two representatives of the media, left the meeting room and went into the hallway of
City Hall. As the group exited, Commissioners Brown and Powell immediately left City Hall,
going to the parking lot and driving away.
Saturday and Sunday, March 17-18,2012
15. Over the weekend of March 17-18, 2012, Bates conferred with Commission Chair
Rogers, who expressed her willingness to meet to certify the election. However, Commission
Chair Rogers further explained that the other Election Commissioners could not come to a
decision or agree to meet. Commission Chair Rogers advised that she was willing to meet at
10:00 a.m. on Monday, March 19,2012.
Monday, March 19, 2012
16. When Petitioner Bates arrived at City Hall at 10:00 a.m. on Monday, March 19,
2012, he learned that Commissioner Brown and Commissioner Powell were unavailable to meet
once again. Bates expressed his willingness to be present whenever the Election Commissioners
were available, but was again advised that Commissioner Brown and Commissioner Powell were
unavailable to meet.
LEGAL STANDARD
17. Mississippi Code 23-15-611, which governs the determination of municipal
elections, contains the following provisions regarding the duties of election commissioners:
On the day following the [municipal] election, the election commissioners shall canvass
the returns so received from all voting precincts and shall, within five (5) days after
such election, deliver to each person receiving the highest number of votes a certificate
of election.
PETITION FOR WRIT OF MANDAMUS - Page 4
Case: 45CI1:12-cv-00073-c Document #: 1 Filed: 03/20/2012 Page 5 of 6
The code section also states:
Within five (5) days after any election, the municipal election commissioners shall
transmit a statement to the Secretary of State certifying the name or names of the person
or persons elected thereat, and such person or persons shall be issued commissions by the
Governor.
Miss. Code. Ann. 23-15-611 (emphasis added).
AVAILABILITY OF MANDAMUS REMEDY
18. As a candidate interested in the outcome ofthe Election, Bates is authorized to
bring this Petition and has a clear right to relief. The Election Commission has a legal duty to
perform its statutorily-required duty pursuant to Mississippi Code 23-15-611. A Writ of
Mandamus lies to require performance of an official duty which an officer or commission has
failed to perform. See Miss. Code Ann. 11-41-1. If necessary, a court may compel by
mandamus an election commission to perform its official duty or to perform a ministerial act
upon its failure to do so. In re Wilbourn, 590 So.2d 1381 (Miss. 1991).
20. The Election Commissioners have failed to perform their statutorily-mandated
duties within the time prescribed under Miss. Code. Ann. 23-15-611. As Bates has no other
adequate remedy at law, he brings this action in the form of a Petition for Writ of Mandamus.
RELIEF SOUGHT
WHEREFORE, PREMISES CONSIDERED, Bates requests that the Court consider this
Petition as soon as it expeditiously may do so, and that this Court then proceed to issue a Writ
of Mandamus requiring the Election Commissioners to canvass the vote returns received from
Ward 2, deliver a Certificate of Election to the person receiving the highest number of votes, and
to transmit a statement to the Mississippi Secretary of State certifying the name of the person
elected to the Board of Aldermen for Ward 2 ofthe City of Canton, Mississippi. Bates further
prays for any such and further relief as to which he may be justly entitled.
PETITION FOR WRIT OF MANDAMUS - Page 5
I
l
Case: 45CI1:12-cv-00073-c Document #: 1 Filed: 03/20/2012 Page 6 of 6
I
Respectfully submitted, this the Uth day of March, 2012.
C. R. Montgomery (MSB No. 3413)
John P. Martin (MSB No. 103898)
Montgomery McGraw, PLLC
151 West Peace Street
Post Office Box 1039
Canton, MS 3 9046
601-859-3616 (telephone)
601-859-3622 (facsimile)
bmontgomery@montgomerymcgraw.com
jmartin@montgomerymcgraw.com
DON BATES, CANDIDATE FOR WARD 2
BOARD OF ALDERMEN, CITY OF CANTON,
MISSISSIPPI
B y : ~
C. . ontgomery
J P. Martin
His Attorneys
PETITION FOR WRIT OF MANDAMUS - Page 6
!