Judge Sells Files Chancery Court Lawsuit Contesting Election Results In Her Race

August 17, 2006
Dwayne Page

The Committee to Re-elect Judge Lillie Ann Sells, in a prepared news release, announced Thursday that a suit has been filed in Chancery Court today on behalf of Judge Sells, challenging the results of the August 3rd Election for Criminal Court Judge for the 13th Judicial District (comprised of Clay, Cumberland, Dekalb, Overton, Pickett, Putnam & White Counties).

Over 40,240 votes were cast in the seven counties, and the initial, uncertified margin of victory (for Independent candidate David Patterson) was only 9 votes. Among other illegal and irregular activity in this election, the complaint asserts, is that at least 24 absentee ballots were cast illegally; at least 2 felons voted illegally; and at least one voter took part in the election who did not live in the district.

The Tennessee Election Code states that its purpose is to secure \"the freedom and purity of the ballot,\" and to promote the \"maximum participation by all citizens in the electoral process.\"

Don Napier, a spokesman for Judge Sells' campaign, said, \"We want as many people as possible to participate in elections, but when the margin of victory is less than the number of illegal ballots cast, the will of the electorate is unclear and it is necessary to contest the election.\"

A Democrat, Judge Sells, has served as a Criminal Court Judge for the past eight years, and is seeking re-election to the bench. She is represented by attorney Stephen Zralek of Nashville, a partner in the law firm of Bone McAllester Norton PLLC.

WJLE obtained a copy of the lawsuit Thursday afternoon from the Putnam County Clerk and Master's office, where it was filed.

The suit names as defendants, Sell's opponent in the election, David Alan Patterson along with Nancy Bowman, Putnam County Administrator of Elections; and the Clay County, Cumberland County, DeKalb County, Overton County, Pickett County, Putnam County, and White County Election Commissions.

The introduction of the lawsuit states that \"According to the preliminary and unofficial count of the Election Commissions for the seven counties that comprise the 13th Judicial District (Clay, Cumberland, DeKalb, Overton, Pickett, Putnam, and White Counties), Plaintiff (Sells) received 20, 097 votes and her opponent, Defendant David Alan Patterson received 20,106 votes in the Election. However, numerous irregularities occurred and numerous illegal votes were cast, calling into question the accuracy and validity of the results, in violation of the express purpose of the Tennessee Election Code to secure the freedom and purity of the ballot.

Sells alleges that she has investigated the facts to the best of her ability, given the 10 day statute of limitations for an election contest and has sought access to all relevant information from the various County Election Commissioners within the 13th Judicial District, but not all relevant information has been available, given the deadline for each county to certify the election results. Sells claims \"To the best of Plaintiff's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, the allegations and other factual contentions herein are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.\"

Lisa Peterson, DeKalb County Administrator of Elections, told WJLE Thursday that Sells has requested, in writing, a list of names of all people who voted on election day in each precinct; a list of all names of all people who voted via absentee mail-in ballot; all applications for absentee mail-in ballot; the permanent absentee voting register and all physician statements required for each person included thereon; all rejected applications for absentee mail-in ballots; and all ballots that at any time during the election were classified as \"provisional\". DeKalb County had one provisional ballot on August 3rd and it was thrown out.

The lawsuit alleges that \"Initial, uncertified results from the Election indicate that approximately 40,203 total votes were cast in the race for Criminal Court Judge of the 13th Judicial District, (20,097 cast for Sells and 20, 106 cast for Patterson) and that Patterson apparently won by a margin of 9 votes.\"

However Sells claims that more than 9 illegal votes were cast by persons who were not eligible to vote, or voted improperly in the Election.

Sells alleges that \"at least three votes were cast by convicted felons who had not had their privileges of voting restored. Such individuals are not qualified voters and are not entitled to be registered or to vote, as provided by state law. Specifically, Sells claims that Leon Meadows, Shannon L. Moore, and Timothy Ray Spivey all had, prior to the Election, been convicted of infamous crimes in a court of competent jurisdiction, and yet all voted on Election Day in White County.\"

The lawsuit further claims that \" at least 24 absentee ballots were cast in violation of the Tennessee Election Code, which mandates that the section governing absentee ballots be strictly construed, pursuant to state law. Specifically, at least 22 applications for absentee ballots in White County, and at least 2 applications for absentee ballots in Pickett County, were submitted without providing the applicant's social security number, as required by state law.\"

\"An initial examination of the Voting List for one county in the 13th Judicial District, conducted within the limited time allowed to file this contest, indicates that at least one voter voted in the Election, despite the fact that he is not a resident of any of the seven counties in the 13th Judicial District, in violation of state law.\"

\"Voters in the 13th Judicial District were permitted to remain in the voting booths on Election Day in excess of the time limit established in state law and the Election officers failed to order the voters removed, as required by law, thus precluding other eligible voters from voting.\"

\"Provisional ballots cast in Putnam County were counted at the precinct, rather than sealed and locked in the provisional ballot box for return to the county Election Commission at the close of the polls on Election Day, as required by state law.\"

\"The election officer in Cumberland County sought the assistance of a member of the media to assist in counting ballots, despite the fact that this individual had not been previously trained and was not an official Election worker, in violation of the Tennessee Election Code.\"

\"The voting machines in Cumberland County contained ballots that showed candidates whose names were already selected when voters first approached the machine, interfering with voters' ability to vote for the candidates of their choice.\"

Sells alleges that \"Based on the foregoing incidents of irregularities, improprieties, and illegally cast votes, she has grounds to bring this Election contest and contest Patterson's apparent victory. Sells claims she should be declared the winner of the Election or, alternatively, the Election should be declared void and another election should be ordered, with proper procedures being followed, adequate protections against election fraud being administered, and with all properly registered voters who are located within the 13th Judicial District being given proper notice.\"

Sells contends that she has \"attempted to examine all voting materials, voting records, related documents and tangible personal property related to the Election in the seven counties administered by the Defendant Election Commissions. Despite her attempts and requests, Sells claims she has not been given complete access, and has not had sufficient time to review all relevant Voting Materials, given the 10 day statute of limitations.\"

Sells claims that \"the foregoing incidents of irregularities, improprieties and illegally cast votes call into question the legality of the entire Election in all seven counties, and indicate that further illegalities and irregularities are likely to be found upon examination of all voting materials, voting records, related documents, and tangible personal property related to the Election Voting Materials.\"

In her petition for relief, Sells asks for the following:

\"That the Defendant Election Commissions in each of the seven counties comprising the 13th Judicial District be ordered to preserve all Voting Materials, so that they are safe from tampering, damage, or loss, preserved in each county's Election Commissions until all investigations and analyses have been concluded, and until this contest has been concluded (except to the extent that such items must be placed in the official custody of the Court, or as otherwise directed by the Court).\"

\"The Defendant Election Commissions in each of the seven counties of the 13th Judicial District be ordered to give Sells access to all Voting Materials and that she be permitted to copy, electronically where available, all Voting Materials.\"

\"That the Court set an expedited discovery schedule so that this matter will be prepared for trial within the time provided by law.\"

\"That Sells be declared the winner of the Election, or alternatively, that the Election be declared void and that each of the seven Defendant Election Commissions be ordered to hold a new election for the office of Criminal Court Judge for the 13th Judicial District, as provided by law.'

\"That Sells be given leave to amend, upon a sufficient review of the Voting Materials as they become available.\"

No date has yet been set for a hearing in the case.

A judge from another judicial district will most likely be appointed to hear it.

The winner of the election is due to take office, September 1st.

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