Dawsey v. Boone

647 So. 2d 1188, 94 La.App. 1 Cir. 2388, 1994 La. App. LEXIS 3416, 1994 WL 694191
CourtLouisiana Court of Appeal
DecidedDecember 1, 1994
DocketNo. 94 CE 2388
StatusPublished
Cited by1 cases

This text of 647 So. 2d 1188 (Dawsey v. Boone) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dawsey v. Boone, 647 So. 2d 1188, 94 La.App. 1 Cir. 2388, 1994 La. App. LEXIS 3416, 1994 WL 694191 (La. Ct. App. 1994).

Opinions

JaGONZALES, Judge.

On November 16, 1994, John Dawsey, a candidate for Washington Parish School Board District 5, filed an election suit naming as defendants Hayward Boone, the other candidate for the District 5 seat, and the Washington Parish School Board. Dawsey alleged that during the run-off voting for the School Board District 5 seat, the voting machine at ward 5, precinct 1 had not been operated properly, thus allowing voters who were not qualified to vote in the School Board District 5 race to vote for that seat.

Dawsey’s petition asked that the election be declared void, and that an order be issued for a restricted general election to be held for the School Board District 5 seat. The Washington Parish School Board filed “An Exception Of No Cause And No Right Of Action” on November 17, 1994. Mr. Boone filed an “Exception Of No Cause/Right Of Action” on November 21, 1994.

A hearing was held on November 21, 1994. At that time, the Washington Parish School Board was dismissed from the suit by motion of Mr. Dawsey. Further, the trial court overruled Mr. Boone’s exception of no cause of action and no right of action, and ruled in favor of Mr. Dawsey, ordering a re-vote of Precinct 5-1, pursuant to La.R.S. 18:1433.1. Mr. Boone filed this appeal on November 22, 1994.

[1189]*1189On November 8, 1994, a run-off election was held for the District 5 seat. On that same day, a parishwide run-off election was held for the seat of Parish Assessor. Precinct 5-1, the voting site where the alleged illegal voting occurred,, is a split district, meaning that within that voting precinct some voters lived in District 5 and were qualified to vote in the School Board District 5 race; while other voters in that precinct lived outside of School Board District 5 and were eligible to vote in the Assessor’s race but were not qualified to vote in the School Board District 5 race. By means of a “lockout” lever on the voting machine, an election commissioner allows voters who lived outside of School Board District 5 to only vote in the Assessor’s race. Then, when a voter 13qualified to vote in the School Board District 5 race and the Assessor’s race enters the voting booth, the lever could be pulled again to allow that qualified voter to vote in both elections.

Gladys C. Johnson, the Registrar of Voters for Washington Parish, testified at the hearing that a total of 570 votes were cast in the School Board District 5 race at Precinct 5-1 for both candidates. By checking the signatures of the voters who lived in the precinct and voted in that race, she determined that only 404 of the voters who were eligible to vote in that race, actually voted. In addition, 51 voters eligible to vote in that election voted absentee, making the total number of voters who were eligible to vote in that election, and actually voted, 455. Based on those figures, the trial court calculated that 115 people who were not eligible to vote in the School Board District 5 race voted in that race in Precinct 5-1,1

According to the appellee’s brief, after votes from all the precincts were tallied, there were 654 votes for John Dawsey and 682 votes for Mr. Boone, with Mr. Boone winning the seat by a 28-vote margin.2

Mrs. Johnson further testified that her office was first notified of a problem at approximately 5:00 p.m. on the day of the eleetion, when Mr. Boone called her office to complain. She stated that from that point, the machine was properly handled and no further voting discrepancies occurred. She further testified that no complaint was made about the voting discrepancy that day other than the complaint by Mr. Boone.

Ms. Wanda Vamado, the commissioner in charge at Precinct 5-1, testified at the hearing that the failure to pull the “lock out” lever prior to 5 p.m. was inadvertent. She stated that she did not see well, and that “we could have been looking in the wrong column,” thus mistakenly reading a “5” in the wrong column to indicate that the voter | resided in School Board District 5 and thus was eligible to vote in that race. She testified that after the complaint was made at approximately 5:00 p.m., the proper procedure was thereafter followed utilizing the “lock out” lever.

Louisiana Revised Statute 18:1432(A) provides:

If the trial judge in an action contesting an election determines that: (1) it is impossible to determine the result of election, or (2) the number of qualified voters who were denied the right to vote by the election officials was sufficient to change the result in the election, if they had been allowed to vote, or (3) the number of unqualified voters who were allowed to vote by the election officials was sufficient to change the result of the election if they had not been allowed to vote, or (4) a combination of the factors referred to in (2) and (3) herein would have been sufficient to change the result had they not occurred, the judge may render a final judgment declaring the election void and ordering a new primary or general election for all the candidates, or, if the judge determines that the appropriate remedy is the calling of a restricted election, the judge may render a final judgment ordering a new election and specifying the date of the election, the appropriate candidates for the election, and the office or other [1190]*1190position for which the election shall be held.

Louisiana Revised Statute 18:1433 provides:

Notwithstanding the provisions of R.S. 18:1432, if a discrepancy sufficient to change the result of the election between the total votes cast at an election and the votes counted for the candidates in the election occurs as a result of a voting machine malfunction, and an accurate count of the votes cast on the malfunctioning machine cannot be determined by the offering of circumstantial evidence or any other evidence, the court shall order a revote in the precinct where the voting machine malfunctioned, which shall be limited to those persons listed on the poll list as having cast their ballots in person at the polls in the election in which the machine malfunctioned. Those persons who cast their votes by absentee ballots in that election shall not be eligible to vote in the revote election. The votes east by absentee ballot in the first election shall be retained, counted, and added to the voting machine totals in the revote election.

Louisiana Revised Statute 18:1433.1, which the trial court relied upon in ruling in Mr. Dawsey’s favor, provides:

A. Notwithstanding the provisions of R.S. 18:1432, if a discrepancy sufficient to change the result of the election between the total votes cast at an election and the votes counted for the candidates in the election occurs as a result of any precinct containing multiple election districts in which votes were counted in the wrong election district, the court shall order a revote for that election in the precinct or precincts containing multiple election districts.
B. The revote shall include all candidates listed on the ballot in the Ischallenged election for the disputed office. The revote shall be limited to those persons listed on the poll list as having cast their ballots in person at the polls in the election in which the discrepancy occurred.
C. Those persons who cast their votes by absentee ballots in that election shall not be eligible to vote in the revote election.

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Cite This Page — Counsel Stack

Bluebook (online)
647 So. 2d 1188, 94 La.App. 1 Cir. 2388, 1994 La. App. LEXIS 3416, 1994 WL 694191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dawsey-v-boone-lactapp-1994.