IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

CASE NUMBER: 2014-M-00967 IN RE: CHRIS McDANIEL PETITIONER

PETITIONER’S REPLY TO RESPONDENT PARKER’S RESPONSE

TO PETITIONER’S MOTION FOR RECONSIDERATION, HEARING AND CLARIFICATION

Petitioner, Chris McDaniel, hereby Replies to Respondent’s Response to Petitioner’s

Motion For Reconsideration, Hearing and Clarification, and in support thereof Petitioner

would show the Court the following:

I. Status of Petitioner’s Examination of the “Poll Books” in Harrison County Regardless of where Petitioner stands with his examination of election materials in

Harrison County, this Court’s July 17, 2014 Order denying Petitioner’s Emergency Petition

for Writ of Mandamus has far reaching effects. Petitioner has many other Petitions for Writ

of Mandamus filed in counties across Mississippi. Immediately following this Court’s lead,

Judge Robert Krebs amended his July 15, 2014 Order granting Petitioner’s Writ of

Mandamus in Jackson County. Judge Krebs previously ruled in Petitioner’s favor granting

him full access to all poll books and other election materials, including access to birthdates

when needed to distinguish between voters. Following this Court’s Order, Judge Krebs

stripped Petitioner’s ability to view birthdates when needed and allowed the Circuit Clerk to

charge for the Clerk’s time to cover up the birthdates. Should this Court decide not to

reconsider its July 17th ruling, not only will this Petitioner be forced to pay thousands of

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E-Filed Document Jul 23 2014 11:50:05 2014-M-00967 Pages: 10

dollars to fulfill his statutory (Miss. Code Ann. §23-15-911) and case law (Sartin v. Barlow,

196 Miss. 159, 16 So.2d 372 (1944), Lopez v. Holleman, 219 Miss. 822, 69 So.2d 903

(Miss. 1954) (in which poll books were manipulated), Waters v. Gnemi, 907 So.2d 307

(Miss. 2005), among many others) supported duty to act as a check in our state’s election

system, but every candidate from here forward who doesn’t have the money to pay for access

to the these tally lists/poll books will be forced to accept defeat, possibly at the hands of

fraud.

II. Exhibits “A”, “B”, and “C” While Respondent is correct in that this action was initiated due to Petitioner’s Writ

of Mandamus filed in Harrison County, the resulting Order from this Court has everything to

do with Exhibits “A”, “B”, and “C”. Exhibit “A” fortifies the reason Petitioner needs to see

original records (tally lists/poll books and others). Once an individual goes in to redact the

birthdates, he/she could also manipulate other parts of the records, weakening or

strengthening one’s potential challenge. Exhibit “B” shows a real life example of the

possible dire consequences for Petitioner and future candidates should this Court not

reconsider its October 17, 2014 ruling. Exhibit “C” shows a decision made by a judge after

hearing all of the arguments and logic supporting Petitioner’s right to a “full examination” of

all election materials, including poll books. As mentioned above, Judge Krebs amended his

order immediately following this Court’s ruling regarding Petitioner’s Mandamus action in

Harrison County.

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III. Boundaries of Credibility Just as the term “ballot box” was more appropriately used in elections prior to

electronic voting machines being introduced, so too was the term “tally sheets” as used in

Mississippi Code § 23-15-581, amongst others. A perfect example is found in the Blakeney

v. Hawkins, 384 So. 2d 1035 (Miss. 1980), cited by the Respondent. In that challenged 1979

Smith County Board of Education election, the ballots were pulled from the ballot boxes and

the candidates’ names were read aloud accordingly. “Tally sheets” were used to make marks

each time a candidate’s name was called as the separate ballots were read aloud. So, a “tally

sheet” was used to “tally” the votes and make sure the number of votes cast matched the

number of voters. In the Blakeney case, the Warren Hill box was in question. Though there

were only 66 ballots in that box, the “voter registry” had eighty-one (81) signatures and the

“tally sheets” accumulated to seventy-eight (78) voters. Obviously, something was awry.

What happened in the Warren Hill box in that 1979 election gives great support and

credibility to Mississippi Code § 23-15-545. There is a reason why the legislature instructed

poll managers to have poll workers write the word “VOTED” in poll books next to the name

of each “elector” as he/she voted. Perhaps it could have been deemed the “Warren Hill

Act.” Had the poll workers been able to compare the “tally” of people who had the word

“VOTED” next to his/her name, they would have had an easier time deciding which number

(66, 81 or 78) had the most credibility.

Once poll books are marked “VOTED”, they become part of the “papers, documents,

ballots, etc. which will show forth how the election was conducted and the integrity of the

votes and the count thereof” as contemplated by this Court in the Sartin v. Barlow case. 16

So.2d 372 at 375.

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While Petitioner understands not every ballot counted will be one that came via a

voter signing in and having “VOTED” marked next to his/her name, the vast majority of

ballots cast will have been. Surely the best prima facie proof that an election was clean is

when the number of accepted absentee ballots, affidavit ballots, military ballots, etc. added

to the number of standard Election Day ballots cast equals the number of total votes

reported. That begins when the number of ballots cast on the voting machine tape equals the

number of signatures in the voter registry and the number of voters marked “VOTED” in the

working paper poll books. In this sense, these working paper poll books are certainly to be

considered “tally lists.”

At a time when all votes were recorded on paper ballots, and all counting of those

votes was done by hand, the tally sheets reflected a method of recording the number of votes.

That number should have corresponded with the number of ballots, and it served as a cross-

check of the number voters shown on the signature pages. The ballots, tally sheet, and the

signature pages served a 3-part mechanism for assuring the accurate recording and reporting

of election results. Now, where ballots are cast on voting machines, there are no paper

ballots for these votes, and the number of votes is counted by the machine. The number of

ballots and the number of votes are kept inside a voting machine and can only be seen by a

print-out from the machine. In such setting, the counties have turned to a new form of tally

list, a different method of cross-checking the numbers reported by the voting machine. That

method is by handwritten notations in a working paper list of voters. That precinct managers

now rely on these working papers as described here can be readily corroborated by testimony

or affidavit.

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In the manner that local election commissioners and circuit clerks now administer

elections, the election records, like the one shown in Exhibit “A” are the “tally list”

contemplated by Mississippi Code § 23-15-591 to be included in the ballot box, and to be

open to a candidate’s full examination under Mississippi Code § 23-15-911.

Lastly, Respondent again cited Mississippi Code § 23-15-165, as she has numerous

times in the course of this action. To maintain credibility before this court, Respondent

should have addressed other portions of that section of code. However, not once has she

referred to Mississippi Code § 23-15-165(4)(d) which states:

(4) The Secretary of State may, with the assistance of the advisory committee, adopt rules and regulations necessary to administer the Statewide Elections Management System. Such rules and regulations shall at least:

(d) Provide the registrar or his designee or other appropriate official, as the law may require, access to the system at all times, including the ability to download copies of the industry standard file, for all purposes related to their official duties, including, but not limited to, exclusive access for the purpose of printing of all local pollbooks;

A candidate fulfilling his/her statutory and case law supported role to act as a check

to the integrity of the election process in Mississippi is an “appropriate official, as the law

may require.” Though Petitioner could arguably have access to the entire SEMS system,

he’s only asking for access to the tally lists a/k/a poll books used by and viewed by

thousands of poll workers across this state.

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IV. Constitutional Implications

The dilution of votes is a very real possibility and a constitutional issue. Respondent

is trying to hide the ball by saying that this is only about access to birthdates. The fact is,

while birthdates are extremely important, as will be discussed later, this is more about a

candidate having to fork out thousands of dollars to perform his/her statutory duty to act as a

check in the election process in Mississippi. That also lends itself to the constitutional

concern of vote dilution. For every illegal crossover vote a candidate uncovers in a

Mississippi Code § 23-15-911 “full examination”, another person’s legal vote is fully

restored and rightfully returned to the “one man, one vote” concept discussed in Reynolds v.

Sims, 377 U.S. 533 (1964) and many other U.S. Supreme Court cases.

To uncover illegal crossover votes, a candidate must compare the above-discussed

tally lists/poll books. For instance, the only way to determine a crossover vote in the June 24

runoff election is to compare the tally list/poll book from the Democrat primary on June 3rd

to the tally list/poll book from the Republican primary runoff on June 24. However, under

this Court’s July 17, 2014 Order, unless that candidate has a considerable fortune at his/her

disposal, that would become impossible because not only could he/she not afford to pay all

82 Circuit Clerk’s to provide them with a copy of these election records or to redact the

birthdays from the originals, but he/she would have a near about impossible task on his/her

hands to wait for the copies or redaction and then complete the “full examination” in the

twelve-day window provided under Mississippi Code § 23-15-911.

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V. Unintended Consequences

Mississippi has 82 counties. Each county has multiple precincts. On every Election

Day, thousands of poll workers (unelected private persons who, unlike a candidate, have not

proved credentials before the Secretary of State or similar) have full access to voter birth

dates shown on the above-discussed tally lists/poll books. Not only could other statutory

role players (thousands of poll managers, thousands of poll workers, hundreds of party

executive committee members, etc.) in the election process be barred from seeing unredacted

information, based on this Court’s July 17, 2014 Order, the ruling also raises other

questions. If the candidate cannot see the unredacted poll books due to privacy concerns,

should he/she be able to review absentee applications and affidavit ballots containing the

same, similar, or more private information?

VI. More Than Just a Birthdate

Petitioner is not simply being barred for date of birth, but in effect from seeing these

election records at all without the aforementioned considerable fortune. Without access to

these election records, a candidate has no way of proving illegal crossover votes. Without

being able to prove illegal crossover votes, a candidate could lose an election by fraud alone.

Surely this Court did not mean to hand down a possible sentencing of that magnitude.

Even if the Respondent is successful in lulling this Court into believing this is simply

about access to voters’ birthdates, Petitioner would argue that access to dates of birth are (or

can be) extremely important for several reasons. By knowing a voter’s birthdate, a candidate

can immediately prove whether or not a voter was of age when he/she cast his/her ballot.

Additionally, birthdates can be used to detect illegal votes cast in the place of deceased

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individuals, to search for voters registered in multiple jurisdictions, to distinguish between

voters with the same name and address, to determine eligibility for absentee voting purposes,

to identify individuals casting affidavit ballots and as a helpful indicator to compare

handwriting samples.

VII. State-Wide Importance and Long Term Significance As mentioned above, Judge Krebs amending his Order based on this Court’s July 17,

2014 Order, provides a first glimpse at the far reaching and long term significance of this

Court’s order. Petitioner will not be repetitious of points already made, but the ability of a

candidate do play his/her role in upholding the integrity of the elections process in

Mississippi will be strongly undermined for years to come should this Court choose not to

reconsider its previous ruling.

VIII. Conclusion For all the reasons set forth herein, Petitioner requests the full Court’s

reconsideration of its July 17, 2014 Order in light of the questions raised herein. Petitioner

further respectfully requests a Rule 33 conference and/or a Rule 34 oral argument to aid the

Court in its consideration of this extremely important and far reaching election integrity

issue.

RESPECTFULLY SUBMITTED this 23rd day of July, 2014.

CHRIS McDANIEL By: s/Mitchell H. Tyner, Sr. Mitchell H. Tyner, Sr. 8

Of counsel: Mitchell H. Tyner, Sr. (MSB #8169) Tyner Law Firm P.A. 5750 I-55 North Jackson, Mississippi 39211 (601) 957-1113 Email: mtyner@tynerlawfirm.com Steve C. Thornton (MSB #9216) P. O. Box 16465 Jackson, Mississippi 39236 (601) 982-0313 Email: mail@lawlives.com Michael D. Watson, Jr. (MSB # 101220) Watson Legal, PLLC Post Office Box 964 Pascagoula, Mississippi 39568 Email: michael@watsonlegal.ms Attorneys for Plaintiff Chris McDaniel

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CERTIFICATE OF SERVICE I, Mitchell H. Tyner, Sr., attorney for the petitioner Chris McDaniel, certify that I

have this day filed the foregoing PETITIONER’S REPLY TO RESPONDENT PARKER’S

RESPONSE TO PETITIONER’S MOTION FOR RECONSIDERATION, HEARING AND

CLARIFICATION with the Court’s Mississippi Electronic Courts online filing system and

served a true and correct copy of same upon the following persons via electronic mail

addressed to:

Judge Roger T. Clark Circuit Court of Harrison County Telephone: (228) 865-4165 Email: mhladner@co.harrison.ms.us Timothy C. Holleman Boyce Holleman & Associates Telephone: (228) 863-3142 Email: tim@boyceholleman.com Harold E. Pizzetta, III Justin L. Matheny Office of the Attorney General Telephone (601) 359-3680 Email: hpizz@ago.state.ms.us jmath@ago.state.ms.us CERTIFIED this 23rd day of July, 2014. s/Mitchell H. Tyner, Sr. Mitchell H. Tyner, Sr.

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