hattiesburg lawsuit001

7/28/2019 Hattiesburg Lawsuit001

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F= i L E D

D A V E WA R E

I N T HE CIRCU IT COURT OK rnuNTY ^ ^ 013

V . C I V I L A C T I O N NO .

JOHNNYL . D U P R E E A N D E L E C T I O N CO M M IS S IO N

FOR THE C Y Ti OF HATTIESBURG, M S D EF EN D A N TS

PE T I T I ON OF CONTEST

E X P E D I T E D HE ARI NG REQUESTED-

COMES NOW, P l a i n t i f f Dave Ware ("Ware" or " P l a i n t i f f ) , pursuant to Miss.

Code An n. 23-15-9r )l, and files this Petidon to contest the General Election held in

Hattiesburg , Mississippi, on June 4, 2013, for the office of Ma yo r. Ware respectf ully

requests th at th is Cou rt receive this Petit ion, expeditiously set a hear ing, and

declare the true results of the election, i n accordance w i t h the procedures outl ined

i n 23-15-951. I n further support of his Petitio n, Ware shows as follows^

402 RebeccM yXvcnue, Ha tt ie sbur g, M S 39401. Ware was an Indepen dent candidate

for Mayor during the June 4 General Election. Ware's opponent was erroneously

certified by the Hatt ie sbu rg M un ic ipa l Ele ction Commission as the winn er of the

election by a vote total of 4,775 to 4,738.

Hat ti esb ur g, Mi ssissippi , who may be served at his residence address of 1028 North

Parties

1. Ware is an adult resident o f Hatt iesb urg, Missi ssii)pi, whose address is

Defendant Johnny L. DuPree ("DuPree") is an adult resident of


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M a m Street,, Hat tiesbu rg, M S 39401.. DuPree was Pla iu tif l' s opponent i n the June;

4, 2013 General Election for Hattiesburg Mayor and currently serves as the

incumbent Mayor.

3. The Hat tie sbu rg Municipal Election Commission (the "MEC") is an

entity created by statule, see Mi ss. Code An n. 23-15-221,and can be served w i t h

process through its Chairman, George Decoux, whose address is 710 Adeline Street,

Hatt iesb urg, M issi ssipp i; or thro ugh the C i t y Clerk of the C i t y of Hatt iesbu rg at

4. This Court has jurisdiction to hear this Petitio n, pursu ant to Mis s.

Code Ann . 9-7-81 and 23-15-951. Section 23-15-951 provides, in releva nt pa rt,

. . . a person des iri ng to contest the election of ano ther person returnedas elected to any office w i t h i n any county, may, w i t h i n twenty (20)days after the election, file a petition in the office of the clerk of the

circuit court of the county, setting f o r t h the grounds upon which theelection is contested; a nd the clerk shal l thereup on issue a summons tothe pa rty whose election is contested. retui'nal>le to (he next term ofthe court, which sum mons shal l be served as m other cases; and thecourt shall, at the first term, cause an issue to be made up and tried bya j u r y , and the verdict of the j u r y shall f in d the person having thegreatest num ber of lega l votes at the elect ion. I f the j u r y shall findagainst the person returned ele{;tod, the cku'k shall issue a certificatethereof; and the person in whose favor the j u r y shall f in d shall becommissioned by the Governor, and shall ( jua l i fy and enter upon theduties of his office. . . .

P l a i n t i f f ( i n i e l y files (his Peti tio n. Fur ther , because (he C i t y of Hattiesburg is

situated w i t h i n two counties, Forrest and Lamar, and because the person returned

as elected to the office of Mayor of Hattiesburg holds an office w i t h i n both of said

C i t y H a l l , 200 Forrest Street, Hattiesburg. MS^ 39401.

Jurisdiction and Venue

that

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counUey, P l a i n t i i f has i i l e d a companion Pet it ion of Contest m Forr est Count y

Circuit Court. Irr egul ari ti es affecting the outcome of the election subs tant iall y

occurred i n both Forrest and Lam ar Counties.

5. Out of an abundance of caut ion, XHain t i ff files her ewi th the certificates

o f three independent attorneys "st ating tha t they have each fu l ly niaile an

independent, investigation into t he mat te rs of fact and of law upon which the prot,(;st

and ))(.-titi()n are l)ased, ami th at after the inves ti gat ion they believe th at the prot est

and i x ' t i t i o n should be s i i s t M i n i ' d and that the r e l i e f prayed m the pLot( t and

pe ti ti ons should be grant.ed." A'ec^Miss. Code An n. 23-15-927. P l a i n t i f f also is

providing her ewi th, i f req uir ed l)y law, a cash l iond in l l i e sum of TinxM: Hundred

Dollars ($300.00) conditioned to pay all costs i n case the Petition is dismissed.

0. Venue is ]ir oper in (hi s Court , under Miss. Code An n. 11 - 11 3 an^i

23-15-951, as significant and material irregularities detailed herein substantially

occurred in this county, and the defendants reside or can be found in Hattiesburg,

Forrest and Lama r County, Missi ssippi .

Procedural Background

7. The MK C ccn-tificd results of the June 4 Genei-al Election for the office

o f Mayor on or about June 7, 2013. The ME C cert ifi ed Pl ai nt if fs opponent,

Oef(uidant DuPree, as the win ne r of the elect ion by a vote of 4,775 voles for DuPree

and 4,738 votes for Ware.

8. The cer tif ied result s do not corr ectl y reflect the number of votes leg all y

cast for each candidate i n the election. As detai led here in, there are a number of

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irreguhirii.tes sun'ouiitliny i l u ; I I M U O I S Uiat were eounted, par li cul ar iy absentct?

ballots, both during the open polling hours and after the election.

9. The Plaintiff, th ro ug h his duly designated representat ives, t imely

conducted an exam ina ti on of the ball oti ng mat eri als, as provide d by Miss . Code

A n n . 23-15-911, from June 11 to 17, 2013.

10. Based on the conduct


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outcome ot the election, preventing the w i l l of the volery from b(;ing ascerta ined. By

wa y of example^

a. I n some cases, i t appears th at b all oti ng materi als were delivered tovoters, in contravention of Miss. Code Ann. 2 3 - 1 5 " 6 2 5 , 23-15-627,and 23'15'657, ins tead of being mai led pur sua nt to a proper voterrequest. First, the records maintained by the C i t y Clerk regardingabsentee ballot apydication requests, applications completed, andballots sent to voters are incompkite and cannot be reconciled to thenumber of absentee ballots requested, cast, and counted. Second,con trary toMiss. Code An n. 23-15-(;25, 23-15-627, and/or 23-15-657,th(; C i t y Clerk, and/or the person reques ting a ballot appl icat ion onbehalf of a voter, failed to complete the requir(;d c(;rtificate of deli veryas to approximately 80 such applications, such that there is no recordof who requested Ihc. absentee ballots.

b. At least 55 ballot applications lack the Clerk's initials and/or seal,rendering them materially deficient under the law. Some of theseapplications were completed in the Clerk's Office, while others werecompleted by m a i l . Finally, at least 160 ballot applications were notproperly witnessed by the Clerk, such that those applications do notconstitute sworn affidavits and are void (as is any ballot issued basedon such a defective application).

c. The Cler k impr ope rly maile d absentee ballot materials to voters forreasons that do not permit absentee ballots to be voted outside the C i t y

Clerk's Office, contrary to Miss. Code Ann. 23-15-715.

d. The Clerk eif h(n- failed to witness or imp rop er ly witnessed 69 sealedballot envelopes, such that those votes were illegal and should not havebeen counted in the vote totals.

13. In at least one case, according to information f r om the affected voter,

an absentee voter from the Tr am Depot precinct voted m person at the C i t y Clerk's

Office prior to the June 4 election, but the vot(?r s absentee ballot application and

t.he corresponding absentee ballot enveloi)e do not exist in the balloting materials

th at were provided for exa mina tio n by the Pl ai nt if fs representative s.


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1 4 . As lo 36 absenUK^ ballots cast i i 'om the Forrest County Oetention

Center at 55 Arena Drive, Hatti esbur g, al l were event uall y counted, and none were

rejected by the p o l l managers. There are numerous irregularities w i t h regard to the

36 absentee ballots cast by the inmates . Fii'st. appl ications for ball ots were not

requested, deliv ered, or com])Ieted consistent w i t h Miss. Code Ann. 23-15-625,

23-15-627,and 2315'657. The C i t y Clerk's records only show- that t h i r t y ballot

applications were mailed to voters in the j a i l , meaning that additional

applications(and l)aliots)may have been hand deliv ered to incarcerat ed vote rs by

improper means. The applicable ballot applications were al l witnessed Ma y 24. Al l

are witnessed by the same notary, and in at least one case, the notary "witnessed"

an application even though the voter never signed the application. A l l the

applications hut one i n i t i a l l y indicated the reason for voting absentee as "being

outside of the county on election day." Late r, t ha t reason was "whit,ed out" and a

new, handwritten reason for entitlement to vote absentee was created on each

application, verbatim and in the same handwri ting, as ' ' i n j a i l , not be able to vote on

June 4 . " Such reason is not ] )rovided by law, .secMiss. Cod(> An n. 23'15-713, and

the evidence demonstrates that the requesting voters did not offer this reason when

the applications were i n i t i a l l y completed.

1 5 . Those absentee ballots issued via the defective applications f rom the

Forrest County Detention Center were also all voted on the same day. May 24,

without being properly witnessed and handled. The same notary public who

witnessed the bal lot applications also witnessed a l l the ballot envelopes, and

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appears to hav( done so C J I masse. Wjl.h regard lo l.he ballot. (;nveiopes, the notary

public was not at the Detention Center for long enough to allow each of the 36

voters who apparently voted ballots, to do so individually and in privacy, to

complele the applic ation, mark his or her absentee ballot, place the ballot into the

envelope, and then seal and complete the ballot envelope affidavit. Such absentee

l ) a l l o t material s, not properl y executed and/or witnessed, are legally deficient, and

those ballots should not have been opened or counted under Mississippi law,

16. At least f ive of the votes t:ast by absentee ballot at the Forrest County

Detention Center were i l l e g a l l y cast by disenfranchised felons. On information and

belief, other votes were casI i n the June 4 elect ion by persons who had been

previously convicted of a disenfranchising crime.

17. Defendant's w ife , Johniece DuPree, who is also a notary public, on

information and belief, improperly hand carried absentee balloting materials to

voters, i n cont ravention of Miss. Code A n n . 23-15-625 and 23-15-627. M rs .

DuPree, who witnessed 35 absentee ballot applications and notarized the 35 ballot

envelopes, was not authori/ ,ed by law to deliver any balloting materials f rom the

Clerk's Office to voters. Fu rther, on information and belief, Mr s. DuPree pressured

one or nnn-e absentee voters to vote for her hu sband when some of the voters she

witne.ssfMl were voting thcnr ballots.

18. Irrespec tive of the i rreg ul ari ti es detailed above, of the 606 absentee

ballots that were cast, 581 ballots were apparently counted hy the MEC. Of those

581 absentee bal lots, at least 330 of them (about 56% of the total absentee ballots


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counted) should not have heen counted because they fuled to meet the clear

requirements of Mississippi election law. Yet, p o l l managers only rejected eleven

absentee ballots on election day, less th an 2% of the 606 absentee ballots cast. The

absentee ballots that were rejected were f rom seven of the Ci ty' s fourt een p recincts,

meaning p o l l managers in haJ/'oi theCity's precincts rejected none of the absentee

ballots cast, in their precincts, despite the fact that between 40% and 80% of the

absentee ballots in every pvecmct (except for one precinct that had only one

absentee ballot


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d. At least IGO of the absemee bullets cast and counted failed to meet atleast one of the requi rement s of Miss. Code Ann. 23-15-717, whichrequires, among other things, that a voter's absentee ballot applicationmust specify the reason such voter is eligible to vote absentee, must beproperly signed by the voter, and must be witnessed.

e. At least 208 of the absentee ballots cast and counted failed to meet therequirements of Miss. Code An n. 23-15025, which requires, amongother things, (hat a voter's absentee ballot application must specify theelection for which the absentee ballot is to be cast.

1'. At least t> o f t l u - al'sentee ballots ea t and rounted failed to meet therequirements of Miss. Code Ann. 23-15630, which requires that avoter's signature affixed te the absentee ballot appli cation match thevoter's signature affixed to his or her absentee ballot envelope.

g. At least 115 of the absentee ballots cast and counted failed to meet therequirements of Miss. Code Ann. 23-15-633, which requires that avoter's signature cross the flap of the absentee ballot envelope andspecifies that the printed ballot envelopes so advise absentee voters ofthat requirement in bold print and i n a distinguishing color.

h . At least 72 of the abscnitee ball ots cast and cxmnted failed to meet therequirements of Miss. Code Ann. 23-15-633, which requires that avoter's absentee ballot envelope be properly witnessed by a witnesswhose signature must also cross the flap of the absentee ballotenvelope.

i . At least 45 of the absentee ballots cast and counted failed to meet theI 'equircments of Miss. Code A nn . 23-15(33 I through 639, whichrequires that a voter and/or the witness complc^te the information onthe ballot envelope regarding the date, time and specific election forw h i c l i the hailot is being cast.

j . While there were 581 absentee ballot,s eventually counted in thecertified totals, there were 587 opened absentee ballot env(4ojK"'s. Sixabsent


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] . CJlher a l j s L' n l e e ballois onveiopes were opened and {how voles uiciudedm the certified tota ls tha t shoul d have heen rejected for not meeti ngthe requi remen ts of the absentee balloting statutes of the MississippiCode. The P h i i n t i f f rescn-ves the right to amend this allegation to pleadw i t h more specificity upon discovery of fu rther evidence adduced inthis action.

19. Cumidativel.\', as noted above, at least 330 absentee ballots of the 581

absentee bal lot s tha t were counted (or about 5G% of the total) should not have been

counted undei' nianchuory re(]uirements of Mississi[)pi elertion l a w . In addition lo

the for*'g(jing examples of i l l (^gal absentee ballots, there are addi ti onal ballots tha t

were not pr operly processed in accordance w i t h the law.

20. The number of absentee ballots that should not have been counted is

w e l l more than enough votes to call into doubt the true w i l l of the voters i n the

election for Hatti esb urg May or. Moi-eovcr, the illegal absentee ballot s have been

commingled w i t h the remaining absentee ballotsi under Mis sis sip pi law, none of

those ballots can properly be counted in the certified totals.

B . At least 24 paper bal lot s voted i n the June 4 election were not init ialed byany i n i t i a l i n g manager as req uir ed by law, such th at they sh ould not have

been counted.

2 1 . At least 19 emergency and curbside ballo ts at the Rowan preci nct were

not initialed by any i n i t i a l i n g manager, as re


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2 2 . Adduionally, ol ' lhc 115 u i l i d a v i t ballot uuvelopcs that were canvas.scd

by th e M K C , twelve affidavit ballot envelopes came f rom th e East G*-* Street

Precinc t. Six of those ballot envelopes were marked w i t h a "C," an d th e b al lo ts were

claimed to be "curbside'" ballots voted at the East 6* St reet Prec inct. These

"curbside" voters were not marked as having "voted" m the p o l l book, and at least

one of those voters W M S no t listed in the p o l l book at all (meanin g tha t the voter

would not have b(i(;n a projier "cui'bside" voter). This i r regular i ty is impossible to

reconcile because the affidavit voter sign-in booklet does not con tai n the signatures

of a l l the voters who voted affidavit at the IJSO precin ct. Those six ba llo ts, which

were not properly voted as affidavit ballots, were not in i t ia led by any i n i t i a l i n g

manager, as required by Miss. Code An n . 23'15-541.

23. Eight of t i le "aff i (b iv i t" ballots from East 6" Str eet Prec in cl were

eventually counted by the MEC, including five of the six bal lo ts th a t were "curbside"

ballots. These eight ballots, none of which were properly in i t ia led , were all counted

as votes for DuPree. Und er Mis sis sip pi la w, the five "curbside" ballots that were

not properly init ialed but were counted were not legally cast and should nol have

been counted m Ihe vote totals.

C. A f f i d a v i t ballots were not properly canvassed and/or counted in the June 4election.

24. There were a total of only 115 affidavit ballots cast m the General

Election. Of those 115, only 47 were eventually counted by the Election

Commission in the certified vote totals. Of th e 47 affidavit ballots counted, 25 were


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votes cast i'or DuPree, 21 were vijtes cast ibr Ware, and one ailidavit ball ot was cast

for a t h i r d person.

25. Of (he 47 affidavit ballots that were counted, 35 were properly

initialed, while twelve were not, as pro vided by law. Those twel ve un mi ti al ed

affidavit ballots were counted w i t h eleven votes for DuPree and one vote for Ware.

26. At least 4 affidavit ballots were counted, even though the voter cast the

ballot in a different jn'ecinct from the one in which the voter resides, contrary to

Miss. Code Ann. 23-15-573.

27. At least 8 affidavit ballots were counted, even though the voter failed

to provide a reason justUying the voters right to vote by affidavit, contr ary to Miss.

Code Ann. 23-15-573.Additional affidavit ballots were cast and included in the

certified total s althou gh tho\ faded to sign the affidavit ballot register, contrary to

Miss. Code Ann 23-15-573.

D . The election was conducted contrary to law, such that the will of the voters

cannot be ascertained.

2S, During the election, and du ri ng the canvassing th at followed, there

were a number of errors, violations of law, and irregularities that call into question

the v a l i d i t y and fairness o f the election. P l a i n t i f f specifically notes the f o l l o w i n g

issues;

a. At least five C(mvicted felons voted f r om the Forrest County Detention

Center even tho ugh al l , on information and belief, were previouslydisenfranchised becau.se of prior felony convictions. Othe rdisenfranchised vot.ers wtu'C, on information and belief, permitted tovote, and voted, in the June 4 election.Further, on information andbelief, another voter who pur por ted ly requested an absentee ballot andvoted absentee f r om pri son , Rico Rondel l Roberts, is named on the l i s t

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ot'jailed volei's provided by the Ci t y Clerk. On mforniation and belief,Roberty, whose date of b i r t h is November 23, 1970, has not beenbooked into the j a i i since Ju l y 13, 2012. However, Roberts' son, who isonly 17 years old and not allowed to vot(;, has the same name( j r. )andwas m the j a i l on May 24, 2013, and has been since February 3,2012.

b. There are instances of vote rs who vote d even tho ugh the y were not.quabfied electors residing in the C i t y of Hattiesburg, knowingly votedin a precinct in which they did not live, and/or could not have voted onelection day bnl nonetheless ap))eai' to have had ballots cast for them.For exanii )le , one person who ca-l an abstnuee ballot in the June 4election posted o n Facebook i n May 2013 de tai ls about her recent (a ndpermanent) move to Memphis, TK. Another voter voted in a precinctin Hattiesburg even though the house al her address of registrationhas been torn down and, on information and l)elief, that voter nowlives in Petal. S t i l l another voter is shown as having voted in person,even though f a m i l y members have verified that the voter did notreturn to Hattiesburg on Election Day to vote. These irregularit ies aresufficient to change the outcome of the el ecti on, such th at the w i l l ofthe voters cannot be ascertained, and the results certified by the MECare not accurate.

c. On the ni gh t of June 5, 2013, before the vote totals were certified andbefore the Elections Commission had completed its canvass of theelection returns, C i t y H a l l and the vault located inside C i t y H a l l t h a tcontained the ballots from the June 4 election were both l e f t unlockedand unsecured. The securi ty videos recorded inside C i t y H a l l revealthat, around 10-00 pm on June 5, unauthorized persons were inside.Further, on information and belief, approxim ate ly 55 min ute s of videofootage from the security cameras from that nig ht are missing.

d. The C i t y Clerk and the; Election^ Commission failed to maintain aproper record of seals on the bal lo t boxes, such t ha t the cha in ofcustody and the integrity of the balloting materials cannot be verified,part icularly and including the int(n-val between the tim e the electionsofficials recessed lh(nr canvass t)f re tu rns on June 5 and reconvened onthe morning (jf June (!. There is thus no adequate way to determine

whet her, by way of exam ple, t he seals affixed to the ballot boxes onJune 5 actually matched th(.' seals that were on the boxes on June 6.

e. On information and belief, the C i t y Clerk and/or the deputy clerks who

handled the absentee ballots and other election responsibilities were

not properly appointed by l ) 0 t h the Forrest and Lamar County Circuit


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Clerks and approved by l.he M K C as provided by law. Likevvrse, p o l l

managers for the June '1 election wert; not appointed i n accordance

w i l h Miss, Code A n n . 23-15-231, an(i at least in some cases,

managers, clerk s, and other election officials were not properly

administered the oath required by Miss. Code Ann. 2 3 - 1 5 - 2 3 7 .

29. There were also instances of imprope r voter assis(,ance, intimidation

and inter ference, causetl both by Defendant DuPree and his representa tives, and by

t)ol! nianagVM's i n paj'Jiriilar procincls. Some spei jfie exanipk's inclndo (he f o l l o w i n g -

a. On June 10, 2013, M i t c h e l l Carter, Jr., a qualified 18-year-old electori n the C i t y of Hattiesburg, m a story aired by a reporter for the W D A Mtelevision station, stated that a member of th( DuPree campaign, aftxn-giving Carter a ride to the Rowan precinct on r lu i i e 4, actually voted for

h i m Jbr DuPree. Car ter did not requ(!st assistance, and was notqualified under law to receive assistance m voting. Carter stated thathe intended to vote for Ware. Car ter also stated t ha t the DuPreecampaign transpor ted other voters to the polls and vo ted for th em asw e l l .

b. A t the East 6th Street (USO) precinct, duly authorized p o l l watcherswere physically thrown out of the precinct , on at least two separateoccasions, by the b a i l i f f , such that the P l a i n t i f f and other authorizedcandidates and partie s wei'e denied the ir right to observe the conductof the election and to challenge voters as allowed by law. One watcherstated that the ba i l i f f "grabbed me, physically, hollered at me, andpulled mo out of the building." Another p o l l watcher stated that bewas "'immediately thrown out" of the polling place by (he b a i l i f f uponarrival. "1 mean, I was manhandl ed .'The b a i l i f f s improper actions atthe USO precinct created a disr upti ve and intimidating atmospherenot. only foi" authorized p o l l watchers, but, also for vot.ers.

c. A p o l l watcher for Plaintiffs campaign at the Camp School precinctwas able lo he^n p o l l managers in that precinct talking aboutat(.ending an election night par ty for Defendant DuPree.

d. At least, one aut.horized p o l l watcher m the 'I'ram Depot precinct wasrequired to sit t h i r t y feet away f r om th(! voting process by the p o l lmanagers, such that the P l a i n t i f f and other author ize d candidates andparties were denied their right to observe the conduct of the electionand to challenge vot.ers as allowed by law. By contrast , poJJ watche rs


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for Uofondanl's campaign, inciuding Defendant DuPree, were aiiowedto freely move about the polling place and more closely observe thevoting process. During one such time that Defendant DuPree was inI he polling place, he threatened and intimidated a p o l l watcher.DuPree, without any auth or ity, insisted that she leave the pollingl)hu:e. DuPree paced around the precinct, made phone calls, and then

started yelling at a p o l l watcher for the Plaintiffs campaign thatDuPree had the Attorney General on th(^ ])hoiie and demanded that theother p o l l watcher leave the precinct. That p o l l watcher stated thatshe was "terrified because I was ju st ther e in volunteer and there's noreason that 1 nec'ded t x j be intimidated like that." The Defendant'sim])roper actit)ns at the Tram Depot i)recinct created a dis rup tiv e andintimidating atmosphere not only for authorized p o l l watchers, butalso for voters.

e. Another po l l watcher, at the Rowan precinct, was required to sit about

20-3C) feet away from the voting process by the p o l l managers, suchthat the po l l watcher was denied the right to observe the conduct of theelection and to challenge voters as allowed by law. That p o l l watcherwas also advised by a person who was apparently serving as a DuPreep o l l watcher "that we were intimidating voters, and he warned us thatwe were in the wrong neighborho od to even tr y voter intimidation,"haier, that person ret.unied to the precinct w-ith Defendant DuPree,who improperly told the p o l l watcher to leave the precinct.NotW'ithstanding the actions by the p o l l managers and Defendant'scampaign, the po l l watcher witnessed at least one occasion when itappeared th at a voter was allowed to vote by machine even though the

voter's nam(^ could not be found in the p o l l book. The p o l l watcherfurther observed times when the p o l l wor kers appeared to beoverwhelmed w i t h voters, such that a crowd W ' ou ld form in front of thesign - I l l table and voters obtained voting cards without signing thesigna tu re hook. The improper actions by the p o l l managers, Defendantand bis representative at th( Rowan precinct created a disr up tive andjtitimidating alinosphere nol only for authorized p o l l watchers, butalso for vot.ers.

f. Similarly, at Grace Christian precinct, a p o l l watcher for P l a i n t i f f wasplaced by the p o l l managers too far away from the voting process, suchthat the p o l l watcher was denied the right to observe the conduct of theelection and to challenge voters as allowed by law. On information andbelief, the same p o l l manager, who created a dis rup tive andintimidating atmosphere not only for authorized p o l l watchers, butalso for voters, and who was demonstrably biased in favor of DefendantDuPree. was later removed as a p o l l manager because she is not a

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resident of Hattiesburg, and was therel'ore not legally qualified toserve as a p o l l w^orker.

30. The numl)cr of ballots cast, counted, and certified, compared w i t h the

num ber of signatures in the voter r(;gisters and the voters who have been m ar ked as

voted do not corrcdate jn several of the prec inc is. These differences, along w i t h the

Ballot Accounting Report reciuiiod Ijy Miss. Code A nn . 23'ir)-r).'Jl to be prepared

by the p(dl managers, do n(.it correlate wMlh tin.' c(n1.ihed totals or the other (dection

documents, ma ki ng it impossible lo j .u 'o i ierly determine the actual number of

individuals who voted and are rtH'ortled as having done so.

31 . On information and belief, several machines in several different

precincts were not jiropeaiy calibrated and/or tested lor logic and accuracy prior to

the elec tion , so th at on those machines, the ballot for the election for Mayor was not

correct, and actually omitted candidates who should have been on the ballot.

32. I n the East 6'- ' Street precinct , there is no "Zero Tape" f r om the f ive

voting machines returned w i t h the m emory cards i n a sealed com municati on

package, and there is no tn'idonce t l i a t such tape was prepared as re(]uired prior to

the elec tion, al l as r equired by Miss. Code Ann. 23" 15-531.

33. As a result of these irregularities and departures f r o m the mandatory

provisions of Mississipi.u election laW', ihe w i l l of the voters in t l i e June 4 General

Election for Mayor of Hatt ies burg cannot be ascertained, and the resul ts certified by

the MEC are not accurate. In fact, whe n considering only those votes that were

legally cast in the June 4 election. P l a i n t i f f Ware, not Defendant DuPree, received

the most votes and should be certified as the winning candidate.

!6


17/23

Relief Requested

WHEREFORE, for the material departures f rom the man dat ory provisions of

the Election Code and other n-regularities set f o r t h above, P l a i n t i f f Dave Ware

respectfully requests that this Court receive and set this Petition for expedited

hearing, and upon hearing this action, award the f o l l o w i n g r e l i e f m the form of a

judgment against Defendants as follows^

1. Declar ing tha t Ware is cmtitled to the r e l i e f sought herein;

2. Ruling that the certified residts of the June 4, 2013 Municipal General

Election for the office of Ma yor are i n error, and fur the r ruling that the correct

resul ts demonstrate th at Ware should be certified as recei ving the highe st number

of legally-cast votes for such officei

3. In the al te rnat ive , gi-anlmg such (jlher r e l i e f as provided by law;

4. For costs of suit and other r e l i e f as the Court deems just and proper!

and

5. For reasonable attorneys' fees.

This, the 24ti^day of June, 2013.

H EID ELBERG STEINBERGER

COLMER& Bf;RROW, P,A.

C (A4A " ^ ^ J I W ^

CORYT. iviLSON (MSB #10168)On behalf of D AV E WARE


18/23

OK COUNSKJ/

Mnlcolm F. Jones (MS Bar # 3222)

P.O. Box 908

Gulfport, MS 39502

Telephone: 228.863.3095

Cory T. Wilson (M S Bar 10168)

HFI DE L BE RG, STEINBERGER,

COEMER & (BURROW, l^A.

P.O. l i ox 16955

Jackson. MS 39236 6955

Phone: 001.351.9414

Fax: 228.762.7589

c w 11 sonfi^hscbp^coiTi

David M . O t t (M S Bar 3948)

Joseph R. TuUo s(MS Bar 102664)

B R YA N NELSON, P.A.

i^ist OiTice Box 18109

Hattiesburg, MS 39404-8109

Phone:601.261.4100

Fax: 601.261.4106

DOl,t@b nlawfirin. com

J Tiillos:{{]b nlavvfirm.com

18


19/23

STATE OF MISS ISS IPPI

CO U N TY OF L A M A R

PERSONALLY C A M E BEF ORE ME , the undersigned au tho ri ty in and for

the iurisdiction aforesaid, the Phuntiff D A \ WARE, who, after heing by me f i r s t

duly sworn, on his oath slated that each and every allegation m the above Petitiono f Contest is, lo the best of bis knowledge, tr ue and correc t.

S WO RN A N D SUBSCRIBED BEFOR E ME , this t h o ? ! day of June, 2013.

D A V E W.-ARE

\


20/23

EXHIBIT "A' CITY OF HATTIESBURG MS

June 4, 2013 General Election

Absentee Baiiot Recapitulation

Ballots Ballots Envs Total

Precinct Cast Rejected opened Ballots Dupree Ware Jordan O'Hara Stewart No

Blair 13 1 12 12 6 6 0 0 0

Camp School 34 1 33 33 12 19 0 1 1

Dixie Pine 40 4 36 36 33 3 0 0 0

East 6th 79 0 79 81 71 10 0 0 0

Grace Christian 18 0 18 18 15 2 0 0 1

Highland Park 44 1 43 43 14 29 0 0 0

IM F 125 ] 124 118 94 24 0 0 0

Kampar Park Al 3 38 38 6 3 1 1 0 0

North Heights I 0 1 a 1 0 0 0 0

Rowan 94 3 91 88 61 24 0 0 0Thames School S3 1 52 43 4 39 0 0 0

Timberton 34 2 32 33 10 23 0 0 0

USM Golf Course 19 1 18 17 9 8 0 0 0

Wesley Manor 10 0 10 20 7 13 0 0 0

Unknown Precinct * 1 1 0 0 0 0 0 0

606 19 587 581 343 231 1 1 2

* One rejected ballot envelope was completely blank; no indication on the envelope as to in which p-ecinct


21/23

S I A T E O l M I S S I S S I P P I

C O U N T Y O F J O N E S

S E C O N D J U D I C I A L D I S T R I C T

rERSONALLY C A M E B E F O R E M E . the undersigned aulhorily in and for the

jurisdiction aforesaid, Robert [) . (jho lson . who. alter being by mc Hrst duly sworn, on his oath

states as follows:

1. 1 am a lic-.'nscd and prac ticint ' atiurnc \ l l ic Mate of MiNsissippi. and ! have no

connection w i t h Ibis elec tion coolest, nor have I been emplo yed i n the past, present, or

expect lo be employed in the lulurc by the contestant or his attorneys;

2. f have made an independent invcst[gaiit)n into the matters o f tact and law upon vvhich the

foregoing protest and petition arc based; and,

3. After such investigation. I ver i ly believe that the protest and petition should be sustainedand that the re l i e f requested there in should be granted.

Further Affiant sayeth not.

S W O R N ANO S U B S C R I R E O B E F O R E M E , this t h


22/23

S I A T K O F M I S S I S S I P P I

C O U N T Y O F P F A R L R I V K R

P E R S O N A L L Y CAMK U E F O R E M E . Ihc undersigned audiovilv in and for the

jurisdiction aforesaid, (Colette A. Oldmix on , who. after benig by me first duly sworn, on her oath

stales as follows;

I , I ani a licensed and pta cli cing allorne> in ihe Stale of Mississippi, and i have no

conneclion wilh ihis eleeiinn ctMiles!. nor h;i\ I heeii eniplo\cd in ihc past, present, or

expect lo be cnipk)ycd in ihe i'ulure by tiie conteslani oi- his a ltomevs :

1 have l i i l K made an independent invesligalion niu> ihe matters of lact and law upon

which the foregoing protest and petition aie based: and.

i . A l l e r such investigation, I \ e r i l y believe thai the j>roiest and peiuion should he sustained

and fhal the r e l i e f requested therein shouid be granted.

C O L l - . T T I - A. O L D M I X O N (MS iiar H 3924)

S W O R N ANI) S L I B S C K I l i E l ) B E F O R E M E , this th e ^l 'day of .lune, 201.V

Kolars Public


23/23

S T A T E O F M I S S I S S I P P I

C O U N T Y O F M A D I S O N

P E R S O N A L L Y C A M E B E F O R E M E . the undersigned authority in and for the

juri-sdiction aforesaid, SPENCE FLATGARD, who, after being by me first duly sworn, on his

oath stales as follows;

1. 1 arn a licensed and practicing attorney in the State of Mississippi, and I have noconnection wuh this election contest, nor have 1 been employed in the past, present, orexpect to be employed in the future by the contestant or his attorneys;

2. I have fully made an independent investigation into the matters of fact and law uponwhich the foregoing protest and petition are based; and.

3. After such investigation, 1 verily believe that the protest and petition should be sustained

and that the relief requested therein should be granted.

Further Affiant sayeth not. ry ^

^PBNCE F L AT G A R D Bar# ^T^gg / )

S W O R N AN D S U B S C R I B E D B E F O R E M E , this t h e ^ ^ a y of June, 2013.

(ScalJ

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