Givens: Absentee ballot dispute probably won't end soon

By Scott Wright

CEDAR BLUFF — Attorneys for District 2 Town Council candidate Evan Smith last week appealed a ruling that would have ended the dispute over absentee ballots in Cedar Bluff by declaring winners in two contested Town Council races and setting a runoff for mayor.

The attorney for the plaintiffs in the case said Smith's decision to prolong the case means additional ballot problems that were not addressed in the initial ruling by Etowah County Circuit Judge William Rhea will now come to light.

“There will be several more depositions, several more witnesses called, and it's probably going to take a while to settle this,” said Shane Givens, who represents District 1 Town Council candidate Billie Burkhalter.

Givens also represents mayoral candidate Jimmy Wallace and District 1 candidate Lenora McWhorter. All three challenged the results of the town's Aug. 26 election because of possibly illegally cast absentee ballots.

The case was assigned to Judge Rhea after all three circuit judges in Cherokee County recused themselves because of the involvement of Smith, who practices law in Centre. On Oct. 26, Rhea ruled in favor of the plaintiffs and removed around 30 absentee ballots from the town's final tally.

The decision left Burkhalter the District 1 winner without a runoff against Smith. It also handed McWhorter the District 2 seat in a tight race over challenger Donald Sanders, and moved Wallace into second place and a spot in a runoff election for mayor against top vote-getter Ethel Sprouse.

Sanders did not to challenge the judge's ruling, but Smith decided to continue fighting for a spot on the governing body.

In a statement released last week in conjunction with his client's appeal Gadsden attorney Ralph Strawn disagreed with Judge Rhea's ruling. He insisted the absence of fraud in the distribution of absentee ballots by Cedar Bluff Town Clerk DeLana Martin was not a sufficient reason to withhold votes.

“The court's ruling overturned certified election results,” Strawn's statement reads. “Smith contends ... that the mere negligence or mistake of Martin should not disenfranchise these otherwise eligible voters.”

But Givens said the wording in Strawn's appeal does not account for an entire category of possibly illegal ballots that both parties agreed to look at separately, if necessary, when the case began.

“To simplify and shorten this litigation I decided to request, to the parties and the judge, that we split these absentee ballots into two categories,” Givens explained. “Category one ballots were ballots that were mishandled by the town clerk. Category two ballots were those that had any other reason to be thrown out.”

Givens said a closer look at the category two ballots could reveal additional problems for the defendants.

“The category two ballots are potentially going to reveal errors such as people voting who were not actually citizens of Cedar Bluff, or who didn't have the proper signatures,” Givens said. “We believe there may also be applications that were not filled out correctly or that were delivered and filled out by someone else.”

Givens said the wording of Smith's appeal argues that all the ballots in question were “properly applied for, properly signed, properly witnessed and properly returned to the clerk by U.S. Mail.”

“We dispute that and have evidence that potentially contradicts all of these issues,” Givens said. “We never went over any of this because these are category two issues that Judge Rhea never ruled on. I can't let this case sit in front of the Alabama Supreme Court, however, without them knowing the whole story.”

Givens said he expects Smith's attorney will object to taking a closer look at the so-called category two ballots. Givens said he sees no alternative.

“I've got to get our dispute of the category two ballots on the record,” Givens said.

Givens said the category two ballot issue is very important if town officials hope to avoid abuse of the absentee system in the future.

“If this case is to be reviewed by The Supreme Court of Alabama, they must have a full view of exactly what happened in Cedar Bluff,” he said.

Givens said he and the other parties initially agreed to split the absentee ballots into two categories to try and bring the case to a timely -- and less expensive -- conclusion.

“The idea was to save everyone involved both time and money, but now it appears this issue is probably not going to be settled anytime soon.”