Judge weighs disqualified sheriff candidate appeals

It was during the first of two appeal hearings for disqualified Muscogee sheriff candidates Monday that visiting Superior Court Judge Gary McCorvey asked the question of the day:

“At this point, y’all are having a sheriff’s election without any candidates?”

Unless McCorvey decides otherwise, the answer is yes, at least for the May 24 primary.

The county elections board’s disqualifying four candidates this year has left no viable challenger to incumbent John Darr. The other contenders’ names remain on the ballot – the disqualifications came too late to change that – and residents still can vote for those candidates if they want, but unless McCorvey overrules the board’s May 2 decision to disqualify Democrat Donna Tompkins and Republican Mark LaJoye, those votes won’t count.

The board on March 30 disqualified Democrats Pam Brown and Robert Keith Smith, and a judge upheld those disqualifications on April 21, after they appealed to Superior Court.

But Brown and Smith were disqualified for reasons that differ from the case of LaJoye and Tompkins: They failed to submit fingerprints for a criminal background check by a March 16 deadline, as the law requires.

The board disqualified LaJoye and Tompkins for failing to comply with another section of the state law setting qualifications for sheriff candidates. The board ruled they neglected to provide certified copies of their birth certificates and to file affidavits swearing they graduated high school, each required by the same March 16 deadline Brown and Smith faced to submit fingerprints.

McCorvey heard LaJoye’s appeal Monday morning and Tompkins’ that afternoon.

Representing LaJoye, attorney J. Mark Shelnutt argued his client did all the law requires to prove he was qualified to seek the sheriff’s office. After qualifying with the Republican Party on March 11, LaJoye went to the elections office with copies of his birth certificate and high school diploma, and had office workers make copies for their records.

Of the affidavit swearing LaJoye graduated high school, Shelnutt said: “Your honor, I call this the ‘ghost affidavit.’” Though it’s included in a 2013 amendment to the law, no form for such an affidavit exists, unlike two others noted in the state code, Shelnutt said, adding the Georgia Secretary of State’s office provides forms for the other affidavits online.

A third affidavit would duplicate the second one the law requires, on which each candidate swears he or she graduated from high school, among other criteria, Shelnutt noted.

He also pointed out that on March 11, elections workers told both LaJoye and county party chairman Rick Allen that LaJoye had met all the requirements of the law, before the board challenged his qualifications.

McCorvey sought clarification that no one was asserting LaJoye never graduated high school or had no birth certificate, only that he failed to follow the proper procedures. Shelnutt agreed.

Representing the elections board, Thomas Gristina of Page, Scrantom, Sprouse, Tucker & Ford said the board equally applied the same standards to all candidates, and it had no choice but to abide by the letter of the law.

Even if election workers gave LaJoye inaccurate information about whether he filed all the necessary paperwork on March 11, no worker has the power to waive the statutory requirements, Gristina added.

Representing Tompkins in the afternoon hearing, attorney Ken Henson made a similar case, noting Tompkins offered to provide her birth certificate and high school diploma when she visited the elections office March 15 to file the second affidavit the statute requires. Office staff told her the documents were unnecessary, Henson said.

As in LaJoye’s case, no one is arguing Tompkins lacks the education or other standards to seek the office, Henson noted: “She meets all of the qualifications.” The only question is whether she followed proper procedure.

The board is insisting on technical, not substantive compliance with the law, Henson said, yet the law’s sole intent is simply to ensure candidates are qualified.

McCorvey said that if the advice elections workers are giving candidates is misleading or confusing, then they should be told not to offer such counsel, similar to court clerks who are warned they cannot give parties to a case any legal advice.

The judge did not say exactly when he would rule on the appeals. “We’ll get some kind of decision as quickly as we can,” he said.

This story was originally published May 16, 2016 at 5:38 PM with the headline "Judge weighs disqualified sheriff candidate appeals."