Bishop Answer and Cross Complaint

Case: 45CI1:15-cv-00294
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IN THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI
KARL BANKS
PETITIONER
VS.
CASE NO. CI2015-294
MADISON COUNTY BOARD OF

ELECTION COMMISSIONERS; and
DAVID BISHOP
RESPONDENTS
RESPONDENT DAVID BISHOPS ANSWER AND CROSS-COMPLAINT

COMES NOW Respondent David Bishop (Bishop), and in response to the Petition for
Writ of Mandamus, and Declaratory Judgment and Petition for Recount and Election Contest [doc.
1] presents to the Court his Answer and Cross-Complaint, as follows:
I. INTRODUCTION
Petitioner puts at issue 31 affidavit ballots in his Petition for Writ of Mandamus, and
Declaratory Judgment and Petition for Recount and Election Contest (the Petition). Petitioner
alleges that four of those affidavit ballots were inexplicably excluded from the vote totals by
the Election Commission, Petition [doc.1], at 5 ( 28, 30), and that the other 27 were first hand
counted but then restuffed into their envelopes before the final, official, count of the ballots.
While Bishop vigorously contests Petitioners claims about these 31 ballots, as will be shown
herein, the Petitioners requested relief not only fails as a matter of law, but is insufficient to
suggest that the certification of Bishop as the winner of the election was in error.
Petitioner alleges, in Paragraph 41 of his Petition, that by his tally (a tally Bishop, again,
vigorously denies and disputes) that the correct vote totals yield a three-vote margin for Mr.
Banks. That margin would presumably grow to seven if the remaining four (deficient) affidavit
ballots are added. Yet, in his Cross-Complaint detailed below, Bishop demonstrates that at least
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one absentee vote cast for Bishop that was not counted in the certified totals must be added,
while 13 absentee, affidavit, and curbside ballots illegally cast for Mr. Banks must be deducted
from the vote totals. That fourteen-vote change in the margin between the candidates is well
more than enough to demonstrate that, even under Petitioners rosiest of scenarios, Bishop still
won the election.
FIRST DEFENSE
As more fully discussed in Bishops Motion to Dismiss and supporting authorities [doc. 13
and 28], the Petition fails to state a claim or cause of action against either of the Respondents upon
which relief can be granted, and should be dismissed with all costs taxed unto the Petitioner.
SECOND DEFENSE
As more fully discussed in Bishops Motion to Dismiss and supporting authorities [doc. 13
and 28], Respondent hereby pleads any and all defenses available pursuant to Rule 12(b) of the
Mississippi Rules of Civil Procedure, specifically including that the Court lacks jurisdiction over
the parties and the subject matter plead by the Petitioner to grant the relief sought, pursuant to
Rules 12(b)(1), (2), and (6).
THIRD DEFENSE
This Respondent, not having fully developed the facts, hereby incorporates and
affirmatively pleads any and all defenses listed in Rule 8(c) of the Mississippi Rules of Civil
Procedure that may be applicable to this case and specifically reserves the right to raise any
objections and defenses therein stated.
FOURTH DEFENSE
Petitioner is barred from seeking any relief under his Petition because such is barred by the
doctrine of unclean hands.
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FIFTH DEFENSE
In answer to the Complaint, paragraph by paragraph, Respondent Bishop would show unto
the Court as follows, to-wit:
To the extent that the unnumbered paragraphs contain any allegations in support of the
Petitioners alleged causes of action or prayer for relief, Bishop denies same. Bishop specifically
denies that Petitioner is entitled to a writ of mandamus as such is outside the Courts jurisdiction
to grant and is further improper under Miss. Code Ann. 23-15-951. Bishop further specifically
denies that Respondent Madison County Board of Election Commissioners (the Election
Commission) failed to correctly certify Bishop as the winner of the November 3, 2015 General
Election for Madison County Supervisor, District 4; and specifically denies that the Election
Commission re-stuffed any ballots back into opened envelopes.
1.
Bishop admits that Petitioner, Karl Banks (Banks), is an adult citizen of Madison
County, Mississippi. His address is 104 Southampton Circle, Madison, Mississippi 39110. Banks
ran as the incumbent in the November 3, 2015, Madison County Board of Supervisors, District 4
election.
2.
Bishop admits that Respondent, the Madison County Board of Election
Commissioners is an entity created by statute, i.e., Miss. Code Ann. 23-15-211, 213. Bishop
denies that the Court has jurisdiction over the Election Commission and, pursuant to wellestablished Mississippi law, denies that the Election Commission is a proper party to this action
or has any authority to take any further action regarding the election at issue, as it has finally
certified Bishop as the winner of the election.
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3.
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Respondent Bishop is an adult citizen of Madison County, Mississippi. Bishop ran
as the challenger in the November 3, 2015, Madison County Board of Supervisors, District 4
election. His address is 149 Woodland Springs Drive, Ridgeland, Mississippi 39157.
4.
As more fully discussed in Bishops Motion to Dismiss and supporting authorities
[doc. 13 and 28], Bishop denies that this Court has jurisdiction to hear Petitioners claims or afford
Petitioner any of the relief requested.
5.
Bishop admits that venue is proper in this Court.
COUNT I
PETITION FOR WRIT OF MANDAMUS AND DECLARATORY JUDGMENT
6.
Bishop denies that Petitioner is entitled to a writ of mandamus as such is improper
under Miss. Code Ann. 23-15-951. To the extent further response is required from Bishop,
Respondent denies any further allegations pled in Paragraph 6 of the Petition.
7.
Bishop denies the allegations contained in Paragraph 7 of the Petition.
8.
Bishop denies the allegations contained in Paragraph 8 of the Petition as stated.
9.
Bishop denies the allegations contained in Paragraph 9 of the Petition as stated and
further denies the allegations contained in the footnotes appended thereto.

10.
Bishop admits the allegations of Paragraph 10 of the Petition.
11.
Bishop is without information to admit or deny the allegations in Paragraph 11 of
the Petition, other than to state that the election results as counted and certified by the Election
Commission speak for themselves, and so therefore Bishop denies the allegations in this paragraph.
12.
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13.
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Bishop admits that the Election Commission properly certified him as the winner of the General
Election for Madison County Supervisor, District 4, on November 12, 2015.
14.
Bishop denies the allegations of Paragraph 14 of the Petition.
15.
Bishop admits that by a majority vote, the Election Commission properly certified
him as the winner of the General Election for Madison County Supervisor, District 4, on November
12, 2015.
16.
Bishop denies the allegations in Paragraph 16 of the Petition as stated, other than
to state that the election results as counted and certified by the Election Commission speak for
themselves. Bishop admits that the Election Commission properly certified him as the winner of
the General Election for Madison County Supervisor, District 4, on November 12, 2015.
17.
Bishop denies the allegations in Paragraph 17, other than to state that the election
results as counted and certified by the Election Commission speak for themselves. Bishop admits
that the Election Commission properly certified him as the winner of the General Election for
Madison County Supervisor, District 4, on November 12, 2015.
18.
the Petition, including those in the footnote appended thereto, other than to state that the election
results as counted and certified by the Election Commission speak for themselves, and so therefore
Bishop denies the allegations in this paragraph. Bishop admits that the Election Commission
properly certified him as the winner of the General Election for Madison County Supervisor,
District 4, on November 12, 2015.
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19.
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Bishop denies the allegations in Paragraph 19 of the Petition, including those in the
footnote appended thereto, other than to state that the election results as counted and certified by
the Election Commission speak for themselves. Bishop admits that the Election Commission
20.
21.
22.
23.
Bishop denies the allegations in Paragraph 23 of the Petition, other than to state that
the election results as counted and certified by the Election Commission speak for themselves.
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24.
25.
26.
Bishop denies the allegations in Paragraph 26 of the Petition.
27.
28.
29.
30.
31.
32.
33.
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34.
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35.
36.
37.
38.
39.
Bishop denies the allegations in Paragraph 39 of the Petition, and demands strict
proof thereof.
40.
proof thereof.
41.
42.
43.
44.
footnote appended thereto, and demands strict proof thereof.

45.
Bishop admits that he was allowed to examine the ballots, in accordance with Miss.
Code Ann. 23-15-911. Bishop denies any remaining allegations in Paragraph 45 of the Petition
as stated.
46.
proof thereof.
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47.
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proof thereof.
48.
proof thereof.
49.
proof thereof.
50.
proof thereof.
51.
proof thereof.
52.
53.
54.
55.
56.
Paragraph 56 states a legal conclusion such that no response by Bishop is required;
however, Bishop denies that the quoted authority supports the Petitioners claims and further
denies that Petitioner has correctly portrayed how the law applies to this action.
57.
58.
59.
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60.
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61.
62.
63.
64.
Bishop denies the allegations in Paragraph 64 of the Petition and specifically denies
that Petitioner is entitled to a writ of mandamus as such is improper under Miss. Code Ann. 2315-951.
COUNT II
PETITION FOR RECOUNT AND ELECTION CONTEST
65.
Bishop incorporates and restates his responses in the preceding paragraphs.
66.
Commission speak for themselves, and so therefore Bishop denies the allegations in this
paragraph. Bishop admits that the Election Commission properly certified him as the winner of
the General Election for Madison County Supervisor, District 4, on November 12, 2015.
67.
68.
Commission speak for themselves, and so therefore Bishop denies the allegations in this
paragraph.
69.
proof thereof.
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70.
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Bishop denies the allegations in Paragraph 70 of the Petition, including those in
the footnote appended thereto, and demands strict proof thereof.

71.
proof thereof.
72.
Bishop denies the allegations in Paragraph 72 of the Petition as stated, and
demands strict proof thereof.

73.
Bishop denies the allegations in Paragraph 73 of the Petition as stated, and
demands strict proof thereof.

74.
proof thereof.
75.
76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
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PRAYER FOR RELIEF

Bishop denies any and all allegations contained in the unnumbered paragraph beginning
WHEREFORE, PREMISES CONSIDERED, including all subparagraphs thereunder, and
specifically denies that Petitioner is entitled to any of the relief requested, or to any relief
whatsoever, as more fully discussed in Bishops Motion to Dismiss and supporting authorities
[doc. 13 and 28]. Bishop further affirmatively prays that the Petition be dismissed, with
prejudice, and that Petitioner be taxed with all costs including reasonable attorney fees incurred
by Respondent in defending this action.
RESPONDENT BISHOPS CROSS-COMPLAINT
COMES NOW, Respondent David Bishop (Bishop or Cross-Petitioner), pursuant to
Miss. Code Ann. 23-15-951, and files this Cross-Complaint regarding the General Election
held in Madison County, Mississippi, on November 3, 2015, for the office of Supervisor, District
4. Bishop respectfully requests that this Court receive this Cross-Complaint, expeditiously set a
hearing, and declare the true results of the election, in accordance with the procedures outlined in
23-15-951. In further support of his Cross-Complaint, Bishop shows as follows:
Parties
1.
Respondent and Cross-Petitioner Bishop is an adult citizen of Madison County,
Mississippi. Bishop ran as the challenger in the November 3, 2015, Madison County Board of
Supervisors, District 4 election.
His address is 149 Woodland Springs Drive, Ridgeland,
Mississippi 39157.
2.
Petitioner and Cross-Respondent, Karl Banks (Banks), is an adult citizen of
Madison County, Mississippi. Banks ran as the incumbent in the November 3, 2015, Madison
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County Board of Supervisors, District 4 election. His address is 104 Southampton Circle,
Madison, Mississippi 39110.
Jurisdiction and Venue
3.
This Court has jurisdiction to hear this Counterclaim, pursuant to Miss. Code
Ann. 9-7-81 and 23-15-951. Cross-Petitioner timely files this Cross-Complaint, as it is

brought prior to any trial setting by the Court, and prior to disposition of Bishops pending
Motion to Dismiss [doc. 13], the granting of which by the Court will render Bishops CrossComplaint moot.
4.
Venue is proper in this Court, under Miss. Code Ann. 11-11-3 and 23-15-951,
as the irregularities affecting the outcome of the election occurred in Madison County. Further,
the Cross-Respondent resides or can be found in Madison County, Mississippi.
Procedural Background
5.
The election of the new Supervisor of the Madison County Board of Supervisors,
District 4, was held on November 3, 2015.

6.
Thereafter, the Madison County Board of Election Commissioners (the Election
Commission) declared the results and pursuant to Miss. Code Ann. 23-15-601 certified the
election for Mr. Bishop and against Mr. Banks by a majority of two votes out of 4750 total votes
counted; with 2,376 votes for Mr. Bishop and 2,374 votes for Mr. Banks.
7.
The certified results do not correctly reflect the number of votes legally cast for
each candidate in the election, to the extent detailed specifically below. There are a number of
irregularities surrounding certain absentee, affidavit, and curbside ballots that were counted, both
during the open polling hours and after the election.
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8.
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Bishop, through his duly designated representatives, timely conducted an
examination of the balloting materials, as provided by Miss. Code Ann. 23-15-911, from
November 16 to 24, 2015.
9.
Based on the canvassing by both poll managers and the Election Commission
after the polls closed, and based further on information observed during the statutorily-provided
examination of the balloting materials by Bishops representatives, the vote totals certified by the
Election Commission do not accurately reflect the number of votes legally cast for each
candidate, though the irregularities shown in this Cross-Complaint only reaffirm that Bishop was
correctly certified as the winner of the election. The evidence demonstrates, as a matter of law,
that at least one ballot cast for Bishop must be added to the vote totals, while 13 illegal ballots
cast for Banks must be deducted. Accordingly, Bishop timely files this Cross-Complaint.
One Absentee Ballot for Bishop Must be Added and At Least Five Absentee
Ballots for Banks Must be Subtracted From the Vote Totals.
10.
Mississippi law requires strict compliance with the requirements governing
absentee ballots, including those requirements provided Miss. Code Ann. 23-15-621 et seq., and
Miss. Code Ann. 23-15-711 et seq. Absentee ballots that meet those requirements should be
accepted by poll managers and counted by the Election Commission, while absentee ballots (and
their corresponding ballot applications and ballot envelopes) that fail in one or more respects to
comply with the absentee ballot statutes are illegal votes, and must be rejected and not counted.
Here, the Election Commission neglected to count one absentee ballot that, on information and
belief, was cast for Bishop. Moreover, at least five absentee ballots that demonstrably were cast
and counted for Banks fail to meet one or more mandatory requirements under law, such that those
five votes must be deducted from the vote totals for Banks.
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11.
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One absentee ballot from Precinct 419 (Canton Precinct 3), that of voter Wilson A.
Harreld, was improperly excluded from and not counted in the vote totals certified by the Election
Commission. Mr. Harrelds absentee ballot application and absentee ballot envelope meet the
mandatory requirements in accordance with Miss. Code Ann. 23-15-621 et seq., and Miss. Code
Ann. 23-15-711 et seq., such that his absentee ballot should have been marked accepted by the
poll managers and counted by the Election Commission. On information and belief, Mr. Harreld
voted for Bishop, and his vote should therefore be added to the votes cast for Bishop.
12.
In that portion of Precinct 417 entitled to vote in Justice Court District 2, utilizing
ballot style Canton Fire #4-10 (Canton Fire Precinct 4), only four voters in that sub-precinct
applied for, received, and cast absentee ballots in that sub-precinct. All four of their absentee
ballot envelopes were accepted, opened, and ballots counted. However, there are five absentee
ballots of style Canton Fire #4-10 for that sub-precinct that were actually scanned and included
in the final vote count, all for Banks. Thus, there are five absentee votes that were counted in the
certified vote totals, but there are only four absentee ballot applications and absentee ballot
envelopes that were opened in the balloting materials. Such a discrepancy should not exist because
each absentee ballot counted must have a corresponding absentee ballot envelope and a valid and
complete ballot application for each voter in order to be a legal vote. The extra ballot, which by
definition was a vote for Banks, is an illegal vote, and must be deducted from the vote totals.
13.
Another absentee ballot voted in that portion of Precinct 417 entitled to vote in
Justice Court District 2, utilizing ballot style Canton Fire #4-10 (Canton Fire Precinct 4), must
be excluded from the vote totals. Voter Yumeka Rushing voted in Precinct 417 utilizing ballot
style Canton Fire #4-10 by absentee ballot. However, Rushings address for voter registration
is 236 Lakeshire Parkway, Canton, MS, which is located in Precinct 410 (Lake Caroline
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Clubhouse). Thus, Rushing voted in the wrong precinct. This renders her ballot illegal under
Mississippi law, such that it must be deducted from the vote totals. Because all of the absentee
ballots counted in Precinct 417 subprecinct #4-10 were cast for Banks, this absentee ballot
necessarily was cast for Banks and must be deducted from his total number of votes.
14.
Two absentee ballots voted in Precinct 418 (Madison County Baptist Family Life
Center) were improperly accepted by the poll managers and counted by the Election Commission
in the vote totals. Both of these absentee ballots must have been cast for Banks because all
absentee ballots in this precinct were voted for Banks:
a.
Sylvester Jordan cast a disabled absentee ballot in Precinct 418, but on
Jordans application for an absentee ballot, the voter marked no reason at all for receiving
an absentee ballot. Miss. Code Ann. 23-15-717 requires, among other things, that a
voters absentee ballot application must specify the reason such voter is eligible to vote
absentee, must be properly signed by the voter, and must be witnessed. If a voter fails to
give a reason entitling him or her to vote absentee, then that voter cannot be issued a legal
ballot. Here, because Jordan failed to indicate that he is disabledand failed to give any
reason at all for voting absenteethis absentee ballot is illegal and must be deducted
from the vote totals.
b.
Robert Mr. Chinn cast an absentee ballot in Precinct 418 on the ground that
he would be out of the county on Election Day. However, Chinns absentee ballot must be
excluded from the vote totals because it fails to meet the requirements of Miss. Code Ann.
23-15-639, which requires that a voters signature affixed to the absentee ballot
application match the voters signature affixed to his or her absentee ballot envelope. In
Chinns case, the signatures on his absentee ballot application and absentee ballot envelope
plainly do not match, rendering this absentee ballot illegal, so that it must be deducted from
the vote totals.
15.
An additional absentee ballot, voted by Leonice Goodloe in Precinct 416 (Canton
Precinct 5), must be excluded from the vote totals. Goodloe voted in Precinct 416 by absentee
ballot. However, Goodloes address for voter registration is 710 Wayne Drive, Canton, MS, which
is located in Precinct 524 (Bible Church Precinct), which is also located in Supervisor District 5.
Thus, Goodloe voted in the wrong precinct and the wrong Supervisor District. This renders her
ballot illegal under Mississippi law, such that it must be deducted from the vote totals. Because
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all of the absentee ballots opened and counted in Precinct 416 (Canton Precinct 5) were cast for
Banks, this absentee ballot necessarily was cast for Banks and must be deducted from his total
number of votes.
At Least Five Affidavit Ballots Cast for Banks Must be Subtracted From the Vote Totals.
16.
At least six affidavit ballots were improperly counted, five votes for Banks and
one blank vote, even though the affidavit ballots failed to meet the mandatory requirements
provided by Mississippi law, specifically including Miss. Code Ann. 23-15-573. Such
affidavit ballots are not legal ballots and therefore must be deducted from the vote totals.
17.
Two affidavit ballots cast by voters at Precinct 409 (Tougaloo Precinct) were
improperly counted by the Election Commission and must be deducted from the vote totals. In
both cases, the voters do not live in the Tougaloo precinct at the on-campus address they
provided, but instead live in other precincts in Madison County (and in other Supervisor
Districts). Lucy Clabon, aka Lucy W. Alexander, born 1962, voted by affidavit ballot at
Tougaloo and listed the college as her address but, on information and belief, lives in Cypress
Lake, Madison, MS, which is in Supervisor District 2 and Precinct 204 (Highland Chapel).
Kendrick Kenta Bailey, born 1979, also voted by affidavit ballot at Tougaloo and listed the
college as his address. On information and belief, his correct address is 110 Pine Knoll, Apt 132,
Ridgeland, MS, an address located in Supervisor District 1.
18.
An affidavit ballot cast by a voter in Precinct 408 (Bear Creek), Doris L.
Langham, was cast in the wrong precinct, and, on information and belief, in the wrong
Supervisors District. The voter is registered to vote at 1719 Highway 51, Madison, MS, which
is located in Precinct 528 (Grace Crossing). In addition, the address provided by the affidavit
voter, 352 Nichols Road, Canton, MS, is actually in Supervisor District 5. This affidavit ballot
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was therefore not legally cast, was improperly counted for Banks by the Election Commission,
and must be deducted from the vote totals.
19.
There were two affidavit ballots opened and counted in Precinct 411 (Twin
Lakes). One of those votes was cast for Banks, while the second was left blank in this race.
Both ballots must be deducted from the vote totals, however, because one was voted by a voter
who lives in another Supervisor District, and the other was voted by a voter who had been
purged from the voter rolls (and therefore was not a registered voter).
a.
Darryl Jenkins voted by affidavit ballot in Precinct 411, listing his address
as 120 Brian Cr, Madison, MS. But this address is located in Supervisor District 3, not
District 4. Moreover, this voter was also reported as voted in the pollbook, which
should not have occurred since he voted by affidavit ballot. On information and belief,
he may have voted on the voting machine as well as by affidavit, which would constitute
a double vote. At a minimum, his affidavit ballot is not a legally cast ballot and must be
deducted from the vote totals.
b.
Jacqueline Jones also voted by affidavit ballot in Precinct 411, giving an
address of 159 Elverse Jones Dr., Flora, MS. However, on the voter roll, this voter is
listed as having been purged from the voter roll. As an unregistered voter, her affidavit
ballot was therefore not legally cast, and must be deducted from the vote totals.
20.
One affidavit ballot in Precinct 416 (Canton Precinct 5) was not legally cast
because the voter, Michael Ray Odell, failed to give a current address in his affidavit. Such
information is required to be provided in order for the voter to demonstrate his right to vote in
Precinct 416 by affidavit ballot. Moreover, a complete current address is a mandatory part of the
voter affidavit required by Miss. Code Ann. 23-15-573. Without this information, the voter
affidavit is insufficient under the statute, and the affidavit ballot cannot be counted for Banks in
the vote totals.
21.
On information and belief, other affidavit ballots were cast for Banks in the
District 4 Supervisor race by voters who failed to meet the requirements for voting by affidavit
ballot, such that those votes would likewise be excluded from the vote totals. As Bishops
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review of poll book data, address data, and other evidence in this action is continuing, Bishop
will offer such proof of further illegal ballots during trial of this action.
Three Curbside Ballots Cast for Banks Must Be Subtracted From the Vote Totals.
22.
In Precinct 416 (Canton Precinct 5), there were five curbside ballots counted, all
cast for Banks. However, three of these ballots were not legally cast, and therefore must be
excluded from the vote totals.
23.
On information and belief, the Precinct 416 poll managers reported that six curbside
ballots were cast, and they admitted that two of the voters failed to sign the signature book. The
managers actually wrote down a list of the names of the six curbside voters. However, in the
canvass, only five actual curbside ballots were found and counted, all of them for Banks.
24.
The signature books reveal that 375 voters signed the receipt books, with only four
of those signatures noted as curbside votes. GEMS shows that 371 machine ballots were cast in
that precinct, leaving the four curbside voters signatures.
25.
Given that only four of the curbside voters signed the voter receipt book, yet five
curbside ballots were cast, one voter failed to sign the voter receipt book (even though the poll
managers reported that two curbside voters failed to sign). For such a vote to be legally cast, it is
mandatory for the voter to sign the voter receipt book, as provided by Miss. Code Ann. 23-15541. The curbside vote of the voter who failed to sign the voter receipt book, cast for Banks, must
accordingly be deducted from his total number of votes.
26.
Moreover, on information and belief, two of the curbside voters did not actually
live in Precinct 416 (Canton Precinct 5), but rather in Precinct 418 (Madison County Baptist
Family Life). These voters, Bobbie G Kelly, whose registration address is 315 Welch Street Apt
D, Canton, MS 39046, and Ezell Warfield, whose registration address is 840 Welch Street Apt C,
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Canton, MS 39046, voted in the incorrect precinct, such that their votes were cast illegally and
therefore must be excluded from the vote totals.
The Integrity of the Balloting Materials
27.
During its initial canvas of the election returns, the Election Commission conducted
an unofficial hand count of the ballots cast in the race for Supervisor, District 4. The count was
done publicly, so that the candidates, representatives of each campaign, and the media were able
to observe the Election Commission as it processed the ballots. This processing of ballots
continued from Tuesday night November 3, 2015, through Thursday afternoon, November 5, 2015.
28.
The Election Commission processed affidavit ballots during the unofficial hand
count on Wednesday afternoon, November 4, 2015, and Thursday, November 5, 2015. Affidavit
ballot envelopes were first evaluated by the Election Commission to ascertain their legality under
Mississippi election law. When the Election Commission had made its determination of which
affidavit ballots envelopes met the mandatory requirements provided by law, the members of the
Election Commission opened the affidavit ballots.
The Election Commission opened the
envelopes and publicly removed the affidavit ballots from the envelopes. The ballots and
envelopes were placed in separate stacks.
29.
When the affidavit ballot envelopes determined by the Election Commission to be
legally sufficient were opened, the ballots were unofficially hand counted and remained separated
from the envelopes that had contained them. When the unofficial canvas was complete on the
afternoon of November 5, Election Commissioners placed and sealed the ballots themselves in one
strong box, while the empty envelopes, together with unopened rejected affidavit ballot envelopes,
were placed and sealed in a different box.
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30.
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Once the Election Commission had finished its unofficial hand count of the
Supervisor District 4 ballots, it canvased the election returns for the rest of Madison County on
Friday, November 6, 2015.
31.
While the ballots and envelopes were sealed in separate strong boxes by the
Election Commission, no seal log was maintained, contrary to Mississippi law, such that there is
no way to determine whether the seals affixed to the ballot boxes have remained inviolate. There
is no way to tell if anyone broke seals, and then replaced new seals on the ballot boxes.
32.
When the Election Commission met again on Monday, November 9, 2015, it
completed its canvas of the election returns. Because the time period for certain voters who voted
by affidavit ballot because they lacked voter identification to appear and offer identification to the
registrar had not yet elapsed, the Election Commission could not certify the official returns until
after Tuesday, November 10, 2015.
33.
Because Wednesday, November 11, 2015 was the Veterans Day holiday, the
Election Commission met and certified the results of the General Election for Madison County
Supervisor District 4 on Thursday, November 12, 2015, based on its official count conducted
Monday, November 9, 2015.
34.
However, on Tuesday, November 10, 2015, Petitioner/Cross-Respondent Banks,
and others affiliated with the Banks campaign orchestrated with two poll managers and District 4
Commissioner Azzie L. Jackson Adams to go to the Courthouse and attempt to alter and/or tamper
with certain affidavit ballot envelopes, thereby attempting to alter the outcome of the election.
When a quorum of the Election Commission arrived at the Courthouse, three Commissioners, led
by Commissioner Adams, in fact were granted access to the balloting materials, and Commissioner
Adams actually accessed affidavit ballots. On information and belief, one of the poll managers
21
Case: 45CI1:15-cv-00294
Document #: 34
Filed: 12/23/2015
Page 22 of 24
told another election official that she had been called to come to the Courthouse and sign ballots.
This attempt to tamper with and alter ballot envelopes is clearly illegal under Mississippi law.
35.
The Election Commission at no time re-stuffed any affidavit ballots into opened
envelopes. On information and belief, the opened affidavit ballots were placed and sealed in the
same strong box as other paper ballotsin plain view of the publicon Thursday afternoon,
November 5, 2015, in advance of the official canvas of the Madison County election returns.
36.
Yet, when Bishop and Banks conducted their respective ballot examinations the
week of November 16, 2015, as provided by Miss. Code Ann. 23-15-911, both parties discovered
that opened affidavit ballots envelopes contained purported paper ballots.
37.
Tampering, or attempting to tamper, with balloting materials is unlawful, and also
impugns the integrity of the balloting materials. Because of the absence of a seal log, and because
purported ballots of some kind appear to have been stuffed into opened affidavit ballot envelopes
by someone other than the Election Commission, and in light of the incident orchestrated by
Petitioner and others on November 10, 2015, there is a fundamental question surrounding the
integrity of the re-stuffed ballots. Strict proof that the purported ballots are authentic and
unaltered is therefore required before any such ballots are accessed, re-counted, or otherwise
offered in this action in an effort to set aside the certification of Bishop as the candidate receiving
the greatest number of legal votes cast in the November 3, 2015 General Election for Madison
County Supervisor, District 4.
Relief Requested
WHEREFORE, Cross-Petitioner David Bishop respectfully requests that this Court
receive and set this Cross-Complaint for expedited hearing, and upon hearing this action, award
the following relief in the form of a judgment for Bishop as follows:
22
Case: 45CI1:15-cv-00294
1.
Document #: 34
Filed: 12/23/2015
Page 23 of 24
Declaring that Bishop was correctly certified as the winner of the November 3,
2015 General Election for Madison County Supervisor, District 4, and is the person having the
greatest number of legal votes at the election;
2.
Ruling that the correct results of the November 3, 2015 General Election for
Madison County Supervisor, District 4 affirm that Bishop should be certified as receiving the
highest number of legally-cast votes for such office;
3.
Adding at least one vote for Bishop to the number of legal votes cast in the
election, and deducting at least thirteen illegal votes cast for Banks, and further granting such
other relief as provided by law;
4.
For costs of suit and other relief as the Court deems just and proper; and
5.
For reasonable attorneys fees.
This, the 23rd day of December, 2015.

Respectfully submitted,
s/ James H. Herring____________________
JAMES H. HERRING, ATTORNEY FOR
RESPONDENT, DAVID BISHOP
JAMES H. HERRING, ESQ. (MSB #2380)
HERRING, LONG & CREWS, P.C.
P.O. BOX 344
129 EAST PEACE STREET
CANTON, MS 39046
TELEPHONE: (601) 859-2573
FAX: (601) 859-3955
EMAIL: jhh38@bellsouth.net
CORY T. WILSON, ESQ. (MSB #10168)
HEIDELBERG STEINBERGER COLMER
AND BURROW, P.A.
P. O. BOX 16955
JACKSON, MS 39236-6955
TELEPHONE: 601-351-9444
EMAIL: cwilson@hscbpa.com
23
Case: 45CI1:15-cv-00294
Document #: 34
Filed: 12/23/2015
Page 24 of 24
CERTIFICATE OF SERVICE
I, James H. Herring, do hereby certify that I have this day electronically filed a true and
correct copy of the above with the Clerk of the Court using the MEC system which sent
notification of such filing to:
Fred L. Banks, Jr., Esq.
Phelps Dunbar, LLP
4270 I-55 North
Jackson, MS 39211
Dorsey R. Carson, Jr.

Carson Law Group, PLLC
124 South Congress St., Suite 1336
Jackson, MS 39201
Lisa M. Ross, Esq.

P. O. Box 11264
Jackson, MS 39283-1264
Spence Flatgard, Esq.

210 E. Capitol St., Ste.1262
Jackson, MS 39201-2300
Wesley T. Evans, Esq.

The Evans Law Firm
P. O. Drawer 528
Canton, MS 39046
This the 23rd day of December, 2015.
s/James H. Herring___________
JAMES H. HERRING
24

Bishop Answer and Cross Complaint

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Bishop Answer and Cross Complaint

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Case: 45CI1:15-cv-00294

IN THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI

CASE NO. CI2015-294

MADISON COUNTY BOARD OF

RESPONDENT DAVID BISHOPS ANSWER AND CROSS-COMPLAINT

Bishop admits that Respondent, the Madison County Board of Election

Respondent Bishop is an adult citizen of Madison County, Mississippi. Bishop ran

As more fully discussed in Bishops Motion to Dismiss and supporting authorities

Bishop admits that venue is proper in this Court.

Bishop denies that Petitioner is entitled to a writ of mandamus as such is improper

Bishop denies the allegations contained in Paragraph 7 of the Petition.

Bishop denies the allegations contained in Paragraph 8 of the Petition as stated.

further denies the allegations contained in the footnotes appended thereto.

Bishop admits the allegations of Paragraph 10 of the Petition.

Bishop is without information to admit or deny the allegations in Paragraph 11 of

Bishop is without information to admit or deny the allegations in Paragraph 12 of

Bishop is without information to admit or deny the allegations in Paragraph 13 of

Bishop denies the allegations of Paragraph 14 of the Petition.

Bishop is without information to admit or deny the allegations in Paragraph 18 of

Bishop is without information to admit or deny the allegations in Paragraph 22 of

Bishop denies the allegations in Paragraph 26 of the Petition.

Bishop denies the allegations in Paragraph 27 of the Petition.

Bishop denies the allegations in Paragraph 28 of the Petition.

Bishop denies the allegations in Paragraph 29 of the Petition.

Bishop denies the allegations in Paragraph 30 of the Petition.

Bishop is without information to admit or deny the allegations in Paragraph 31 of

Bishop denies the allegations in Paragraph 32 of the Petition.

Bishop denies the allegations in Paragraph 33 of the Petition.

Bishop is without information to admit or deny the allegations in Paragraph 34 of

Bishop denies the allegations in Paragraph 35 of the Petition.

Bishop denies the allegations in Paragraph 36 of the Petition.

Bishop denies the allegations in Paragraph 37 of the Petition.

Bishop denies the allegations in Paragraph 38 of the Petition.

Bishop denies the allegations in Paragraph 41 of the Petition.

Bishop denies the allegations in Paragraph 42 of the Petition.

Bishop denies the allegations in Paragraph 43 of the Petition.

footnote appended thereto, and demands strict proof thereof.

Bishop denies the allegations in Paragraph 52 of the Petition.

Bishop denies the allegations in Paragraph 53 of the Petition.

Bishop denies the allegations in Paragraph 54 of the Petition.

Bishop denies the allegations in Paragraph 55 of the Petition.

Paragraph 56 states a legal conclusion such that no response by Bishop is required;

Bishop denies the allegations in Paragraph 57 of the Petition.

Bishop denies the allegations in Paragraph 58 of the Petition.

Paragraph 59 states a legal conclusion such that no response by Bishop is required;

Paragraph 60 states a legal conclusion such that no response by Bishop is required;

Bishop denies the allegations in Paragraph 61 of the Petition.

Bishop denies the allegations in Paragraph 62 of the Petition.

Bishop denies the allegations in Paragraph 63 of the Petition.

Bishop incorporates and restates his responses in the preceding paragraphs.

Bishop is without information to admit or deny the allegations in Paragraph 66 of

Bishop denies the allegations in Paragraph 67 of the Petition.

Bishop is without information to admit or deny the allegations in Paragraph 68 of

Bishop denies the allegations in Paragraph 70 of the Petition, including those in

the footnote appended thereto, and demands strict proof thereof.

Bishop denies the allegations in Paragraph 72 of the Petition as stated, and

demands strict proof thereof.

Bishop denies the allegations in Paragraph 73 of the Petition as stated, and

demands strict proof thereof.

Bishop denies the allegations in Paragraph 75 of the Petition.

Bishop denies the allegations in Paragraph 76 of the Petition.

Bishop denies the allegations in Paragraph 77 of the Petition.

Bishop denies the allegations in Paragraph 78 of the Petition.

Bishop denies the allegations in Paragraph 79 of the Petition.