Elections board won’t appeal judge’s reinstating sheriff’s candidates

Two candidates were pleased and two definitely were not Monday when the Muscogee elections board chose not to appeal a judge’s ruling reinstating two sheriff’s candidates who’d been disqualified, then decided to let stand another judge’s decision disqualifying two others.

The two candidates reinstated are white; the two who remain disqualified are black.

“I have a problem with this city now. I have a problem with Columbus, Georgia,” said Pam Brown, one of the two black candidates. “Apparently someone in Columbus does not want an African-American in that position.”

Said her attorney, Mark Shelnutt: “I am something that I’m not often. I’m speechless. …This is wrong. It’s an outrage.”

Said Robert Keith Smith, the other candidate who remains disqualified: “We have a serious problem here. … We’ve got to do something.”

But both Shelnutt and attorney Alphonza Whitaker, who represents Smith, were not sure what their next move would be. That’s something they’ll have to discuss with their clients, Shelnutt said, adding, “There are things that are going to be done.”

Because Judge Gary McCorvey of Tifton overturned the board’s May 2 decision disqualifying Democrat Donna Tompkins and Republican Mark LaJoye, Shelnutt urged the board Monday to consider seeking a consent order asking the judge who upheld the disqualifications of Brown and Smith to reconsider, in light of McCorvey’s ruling. That judge is J. Richard Porter of Cairo.

Margaret Jenkins, who chairs the five-member elections board, told Shelnutt during the meeting that it would consider his request. But no board member moved to seek such a remedy, and the board adjourned without discussing it.

That followed the board’s voting unanimously not to appeal McCorvey’s ruling on Tompkins and LaJoye.

Brown and Smith are Democrats, so Tompkins will be the only viable sheriff’s candidate in Tuesday’s Democratic Primary, though the others’ names remain on the ballot. LaJoye had no Republican opposition.

Incumbent John Darr is to run as an independent, so his name won’t be on the ballot until November.

Brown and Smith were disqualified March 30 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.

Porter heard their appeals hearing April 19, and upheld the board’s decision two days later.

The board disqualified LaJoye and Tompkins for failing to comply with another section of the state law that sets 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.

In his decision delivered last week, McCorvey wrote the law setting standards for sheriff’s candidates had the stated intent of ensuring such candidates were qualified, and the local elections board did not contend Tompkins and LaJoye were not qualified, only that they failed to meet specific deadlines for filing paperwork.

If a candidate’s duly qualified, then a failure to follow legal procedures does not outweigh the law’s intent and the value of giving voters a choice, McCorvey wrote, quoting a court precedent:

“Words limiting the right of a person to hold office are to be given a liberal construction in favor of those seeking to hold office, in order that the public may have the benefit of choice from all those who are in fact and in law qualified.”

Added McCorvey: “As shown above, Georgia courts long, zealously guarded the right of a citizen to seek public office so that the public may have the benefit of choosing among those who are qualified.”

Citing other court precedents, the judge wrote that “the spirit or intention of the law prevails over the letter thereof,” and “it is the duty of the court to consider the results and consequences of any proposed construction and not so construe a statute as will result in unreasonable or absurd consequences not contemplated by the legislature.”

Shelnutt said after Monday’s board meeting that McCorvey’s rationale could have applied as easily to Brown and Smith to Tompkins and LaJoye.

But McCorvey’s decision makes a distinction between the two sections of the law under which the candidates were disqualified, noting the part requiring candidates to be fingerprinted for a background check begins with “No person shall be eligible to hold the office of sheriff unless such person,” followed by a list of requirements including the fingerprinting.

The section of the law requiring candidates to file affidavits swearing they graduated high school and to submit certified copies of their birth certificates does not contain that language, the judge wrote.

Though the law says candidates “shall” file the affidavit regarding high school graduation and the birth certificate, it sets no penalty if they don’t, McCorvey wrote, so the “shall” is “directory” and not “mandatory.”

Citing another court precedent, he wrote: “A statutory provision is generally regarded as directory where a failure of performance will result in no injury or prejudice to the substantial rights of interested persons, and as mandatory where such injury or prejudice will result.”

Smith has said he will mount a write-in campaign for sheriff in the November election. Brown said she is considering running as an independent, but for now will try to get her disqualification overturned.

“I’m going to fight this matter to the end,” she said, adding she believes the county needs a new elections board.

“They don’t know their jobs,” she said. “They sit there, and didn’t know what they were doing.”

The board is appointed by Columbus Council.

This story was originally published May 23, 2016 at 2:33 PM with the headline "Elections board won’t appeal judge’s reinstating sheriff’s candidates."