Maybe I Should Start A District 54 Blog

The hearing will be tomorrow. Danny has some news here. Jeff’s insights are here. In my opinion, Todd will remain the District 54 nominee.

It looks like the main issue is going to be Patricia Todd’s late financial report filings. From paragraph 4 of the complaint:

4. On July 17, 2006, the day before the runoff primary election, Candidate Todd filed with the Secretary of State her report of contributions and expenditures. Candidate Todd’s 10-5 Day Pre-Election Report was due no later than July 14, 2006.

(a) That had the 10-5 Day Pre-Election Report been timely filed by canidate Todd the following important voter information would have come to the attention of voters in District 54:

(b) That on July 3, 2006, Candidate Todd received a $ 25,000 contribution from the Gay & Lesbian Victory Fund, the Nation’s largest gay and lesbian political action committee. The Gay & Lesbian Victory Fund is a National political organization that provides technical and financial support to openly gay and lesbian candidates.

(c) On June 16, 2006, Candidate Todd made expenditure payments to Charlie L. Williams, Jr. in the amount of $5,000 and Kamau Africa in the amount of $ 5, 750, both of whom were candidates in the previous primary election; but, later who endorsed Candidate Todd in the run-off election.

Todd’s response:

4. Patricia Todd admits the allegations made in paragraph 4 (except for paragraph a) of the statement of contest. Patricia Todd denies the allegations made in paragraph 4(a) of the statement of contest.

12. The allegations made in paragraph 4 of the statement of contest are not grounds for denying a certificate of nomination to Patricia Todd under Ala. Code § 17-22A-21, as interpreted by the Alabama Supreme Court in Davis v. Reynolds, 592 So.2d 546 (Ala. 1991).

Todd is probably correct. That she filed her disclosure forms late does not mean she loses the election. Code section 17-22A-8(a)(2) requires candidates to file a form with the Secretary of State listing their contributions and expenditures between ten and five days before a runoff election. This is the “10-5 Day Pre-Election Report” the complaint alleges, and Todd admits, she did not file until the day before the election.

Another section, 17-22A-21 states that a candidate forfeits the election if they “fail to file any statement or report required by this chapter.” Todd, though, did not fail to file the statement; she just filed it late. So what’s the remedy in that situation? The Alabama Supreme Court explained in Davis v. Reynolds:

The Fair Campaign Practices Act was enacted by the Legislature in 1988. Its primary laudable purpose was to require candidates for public office in Alabama to disclose campaign contributions and expenditures prior to elections. It repealed parts of the Corrupt Practices Act, § 17-22-1 et seq., which required disclosure only after the election. To accomplish this purpose, the legislature included sanctions for violation of the statute. For a failure to file a statement required by the statute prior to the election, § 17-22A-21 provides the harshest penalty of all:

“A certificate of election or nomination shall not be issued to any person elected or nominated to state or local office who shall fail to file any statement or report required by this Chapter.”

Thus, any candidate who fails to file a statement that is required to be filed by the Fair Campaign Practices Act, prior to the election for the purpose of informing the voting public of the sources of his contributions and the subject of his expenditures, shall forfeit the election.

For the candidate who does not fail to file a statement before the election, but who files such a statement late, § 17-22A-22(b) prescribes and applies punishment in the form of a criminal penalty.

These two distinct sanctions, forfeiture of the election for those candidates who fail to file the disclosure statements required by the statute prior to the election, and criminal fines for candidates who file such disclosure statements prior to the election but not within the time prescribed by the statute, carry out the legislative intent of full disclosure before the election; but these sanctions do not require a candidate who discloses his contributions and expenditures before the election (but not within the time provided by the statute) to forfeit the election.

That sanction is too harsh to visit upon a candidate who has not failed to file the statements required, but has merely filed them late. After all, this candidate is the candidate chosen by the people as their representative, even though his disclosure statement was filed untimely. The people’s choice should prevail even if the candidate is in violation of the time constraints of the statute, if he files his disclosure statements prior to the election.

Todd, “the candidate chosen by the people as their representative,” filed her statement late, but before the deadline. Under Davis v. Reynolds, then, she will have to pay a fine for this violation, but she will remain the Democratic nominee for District 54.

The only other thing in the complaint worth mentioning is the charge that during the final process of counting the votes, Todd’s representatives were present, but Hendricks had no-one there. Kyle Whitmire – one of B’ham’s best political reporters – has the facts here:

Last Thursday, Gaynell Hendricks held a press conference in front of the Jefferson County Courthouse where her supporters in her plain sight accused white people of stealing the election for Todd.

I too was accused of fixing the election. This might stem from the fact that, in addition to being white, I, unlike nearly everyone on Hendricks’ campaign staff, showed up at the courthouse on election night to watch the returns being counted.

This is what I saw.

After the polls close, each voting machine tallies the ballots fed into it during the day. It then prints seven copies of those totals on long sheets of paper, the kind used for most cash register receipts. One of those copies is posted on the wall at the courthouse for the media and public to count, if they choose to. The others are distributed to the political parties and to the county probate judge. The paper printouts, commonly called “the tapes,” are the first, best count of the votes.

If you are curious enough and have the mathematic skills of most third graders (or a calculator) you can add up the ballot totals from each of the tapes in a particular district to determine who won a particular election. On election night, that is what I did.

The total I found then in the District 54 race was 1,111 votes for Hendricks and 1,172 votes for Todd. (These totals are off slightly from the final total because a tape from one machine was not hung on the wall. With that box included, the final count was 1,173 for Todd and 1,114 for Hendricks.)

As a safeguard to catch mistakes, our election system has several duplications built in. While the tapes are the first, best number, they are not the only number.

After printing out the tapes, each voting machine calls a central computer at the courthouse to report its totals. The machines use cell phone modems and the connections are often faulty. Finally, the memory cards from the machines are taken to the courthouse where they are fed directly into the central computer.

This process generates those unofficial totals you see on election night, and this is where things began to go wrong two weeks ago.

Someone, presumably a county employee, put an extra memory card in a voting machine from Crestwood, a neighborhood that turned out in force to vote for Todd. However, the voting machine — being smarter than the people who run it — did not record votes on the extra memory card. Instead, the card remained blank. When that blank card was fed into the central computer, it overwrote the votes from Crestwood, which the machine had already called in.

The numbers tallied by the central computer are posted on the county’s website and also displayed on a large screen at the courthouse set up for the media. When the blank memory card was fed into the computer, those numbers started going backwards. Votes were subtracted from both Hendricks’ and Todd’s totals. It was apparent to everyone at the courthouse that something screwy had happened.

Meanwhile, Hendricks was throwing her premature victory party.

Not only did the numbers start going backwards, but they also didn’t match the total from the tapes. There were two sets on numbers. The tapes said that Todd had won. The central computer’s number said that Hendricks had won.

Being a political reporter and all, I needed to know who had won the election, so I approached the county election officials to ask about the discrepancy. Although lots of other people soon followed, including both campaigns and other media, I believe I was the first person to bring the discrepancy to their attention.

Over the course of an hour, county officials double-checked the numbers from the District 54 race. When doing so, they discovered that they had one too many memory cards from the Crestwood voting precinct. When the correct memory cards were fed into the machine, the computer’s total matched the total from the tapes.

What’s more, these numbers were later double-checked by a Democratic Party canvassing committee. That committee compared the number of votes cast against the number of voters who signed into the polling place — yet another safeguard. The committee validated the ballot total from the tapes.

If you don’t know many county employees, it’s easy to make assumptions that they’re a sinister lot, ready to sell an election to the highest bidder. In fact, nothing is further from the truth. Most county election officials are your typical bureaucrats, trying to do their job without being hassled. Throwing an election one way or the other is against everything in their being, because doing so might get them yelled at. Aside from making sure the results are correct, they care who wins as much as they care about the price of tea in China.

Once Hendricks learned from TV reporters that she had lost, her campaign finally went to the courthouse to find out what had happened. The elections officials gave her campaign the same explanation they gave Todd’s campaign.

There was nothing even remotely shady occurring. And if Hendricks is mad because the party occurred without her, that’s no-one’s fault but her own.

I don’t know all the facts. Nor am I familiar with the Democratic party’s own procedures. But based on what I do know, come November, Patricia Todd will be the District 54 representative.

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