IN THE SUPREME COURT OF MISSISSIPPI
N O. 2016-EC-00675-SCT TROY WESLEY

v. WASHINGTON COUNTY DEMOCRATIC EXECUTIV

E COMMITTEE AND CARL McGEE

DATE OF JUDGMENT: 02/28/2016 TRIAL JUDGE: HON. L. BRELAND HILBURN TRIAL COURT ATTORNEYS: W I LLIE GRIFFIN SANDRA JARIBU HILL JAMIE FERGUSON JACKS BENNIE LE NARD RICHARD COURT FROM W HICH APPEALED: W A SHINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JAMIE FERGUSON JACKS ATTORNEYS FOR APPELLEE: SANDRA JARIBU HILL W I LLIE GRIFFIN NATURE OF THE CASE: CIVIL - ELECTION CONTEST DISPOSITION: AFFIRMED -11/30/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE WALLER, C.J., KITCHENS, P.J., AND BEAM, J. BEAM, JUSTICE, FOR THE COURT: ¶1. Appellant Troy W esley lost the Dem ocratic prim ary election f o r W ashington County District 3 Supervisor on A ugust 4, 2015. He subsequently p etitioned the circ uit court to request a new election, alleging that num erous i rregularities had invalidated the f o rm er one. Af ter a hearing on the m atter, t h e W a shington County C ircuit Court granted sum m ary judgm ent to d ef

endants Carl McGee a n d t h e W ashington County Dem ocratic Executive
Com m i ttee. Aggrieved, W esley now appeals to this C ourt. In his appeal, W esley cites nod iscrepancy in t he original vote totals and instead f ocuses his argum ents o n procedur a l problem s, including an allege d lack of ballot-box security

. W h ile the f ailure to m aintain ballot-box security is a serious issue worthy o f reprim and, we f ind that W esley ’s argum ents

are insuf f i cient to raise a genuine issue of m a t e r i a l f act and t hat sum m ary judgm ent was properly entered in f

avor of the def endants.
FACTS ¶2. On August 4, 2015, the De mo c r a t i c p r i ma r y f o r W ashington County District 3 Supervisor resulted in candidate Carl McGee receiving 448 votes and Troy W esley receiving
378. The vote totals f

or t he t wo candidates dif

f ered by 70 v otes, but W esley challenged the election—f

irst b y f iling a petition w ith the W a shington County Dem o cratic Executive
Com m i ttee (W C DEC), th en by f iling a c om

plaint i n W ashington C ounty Circuit Court against Carl McGee and the W CDEC. Bef ore the t rial court, W esley a lleged that num erous violations of

election law had taken place and asked f or a new election. ¶3. Prior to t rial, both sides requested sum m ary judgm e nt. On October 21, 2015, McGee f iled such a m otion; then the W CDEC f iled a mo t i o n f

or dism issal or, in the alternative,

sum m ary judgm ent. W esley then f iled f or sum m ary judgm ent and of f e r ed his own af

f idavit and various photos of

ballot boxes in support of his allegations in the case. The trial court eventually held a hea r i ng on F ebruary 23, 2016, a n d concluded t hat “[ t]here has not been dem onstrated t o the Court that t here [ were] enough illegal votes c ast

. . . to change the result of the election.” The court continued, explaining that “ [ i]t has not been established that so

m any votes are d isqualif

ied that the will of the voters is not established b y t his vote count.”

2Accordingly , the court issued an O rder of D ism issal, in w h i c h it dism issed the case “with

prejudice and all cost taxed t o P l a i n tif f .” Though n oting t hat all of the parties adm itted

e l ection irregularities had occurred, the court denied W esley ’s m otion f or sum m ary jud g m e n t

a n d g ranted the m otions of McGee and the W CDEC. Aggrieved, W esley appealed to t h i s Court. ¶4. I n h i s a ppeal, W esley continues to allege t hat num erous e l e c t i o n i r r e g u l a r i t i e s occurred and t h at those irregularities require a new election f or W ashington County District
3 Supervisor. Narrowing his argum ents to f ocus o n b allot-box security , W esley alleges the
f ollowing: 1) The election result b allot boxes were not properly sealed as prescribed by law; 2) Election m achine m em ory cards and results f r om m a chines were not in any closed box w hatsoever, but in an open cardboard box in the circuit clerk’s of f ice; 3) The circuit c lerk did not control and secure the ballot boxes a s she was not in control of

the boxes f

o r weeks f

ollowing the election; 4) Ballot boxes were lef t in the hallway of the courthouse, t heir tops open and at l e a st one m em

ber[ ] of the W CDEC rem oved item s f rom these boxes, all prior to W esley ’s exam ination of the boxes; 5) Becau s e of the W CDEC’s f a ilure to properly tally af f i davit and absentee votes, the c ircuit clerk h erself was f orced to tally these votes; 6) W ashington County Election Com m ission (W illiam G ist) also handled and canvassed ballots f

or the W CDEC; 7) There is no agreem ent b etween t he W a shington Co u n t y E l ection Com m issioners and the W CDEC to assist in the canvass of ballots;

38) There was n o evidence in any of the election boxes that ballots were properly received and accounted f o r by the Receiving Managers at the polls – there were no receipts signed showing how m any ballots were delivered (af

f idavit and curbside); and 9) The r e sults f

rom the Lake V ista Lodge Machine #1 could n ot be f ound during W esley ’s exam ination. 1
W e sley argues t hat “ the ballot box security issues alone a r e e n o u g h to w arrant a new election.” ¶5. In response to W esley ’s appeal, Mc G e e a s s e r t s t h a t W e sley f

a iled “to provide concrete evidence to prove” that “alleged ‘radical departures’ changed the outcom e of the election.” Indeed, McGee claim ed t hat, e ven if true, the irregularities noted by W esley applied only to the 2.8% of the votes cast on paper, rather than electronic ballots. By them selves, the paper ballots were t o o f

ew i n num

ber to change the e l e c t i o n outcom e. McGee adm itted that

1 Wesley f ails to elab o rate o n th e alleg ed issu es reg ard in g L ak e V ista L o d g e M ach in e # 1 in h i s b rief

to th is C o u rt. In stead , h e ref eren ces a p erso n al af

f id av it h e f

iled at th e trial lev el, i n w h ich h e states th at o n e o f h is rep resen tativ es w as u n ab le to lo cate th e m em o ry card an d resu lts p rin t -o u t f

ro m th e m a ch in e in q u e stio n . T h e af f id av it p resen ts v ario u s co n cern s w i th th e lack o f secu rity a n d c arelessn ess ex h i b ited b y th e d ef en d an ts in th e ex ecu tio n o f th eir resp o n sib ilities th ro u g h o u t th e electio n . H o w ev er, th is p erso n al af f id av it– s w o rn o u t b y th e p lain tif

f , an d in clu d i n g in f

o rm atio n receiv ed f

ro m th ird -p arty p erso n n el— co n stitu tes th e o n ly reco rd ev id en ce p resen ted reg ard in g M ach in e # 1

. M o reo v er, th e a f f id av it itself is u n clear as to w h eth e r t h e L ak e V ista L o d g e M a ch in e # 1 m em o ry card w as m issin g en tirely o r w a s m erely in a d if

f eren t b o x th an e x p ected

. O n ly in resp o n se to D ef en d an t s’ m o tio n s an d in an Item i zatio n o f U n d isp u ted F acts d id Wesley su g g est th at th e circu it clerk h ad b een “u n ab le to lo cate th e m e m o ry c ard ” w h en Wesley ex am in ed th e b allo t b o x es. H e n e i t h e r p resen ted th e clerk as a w i tn ess n o r attem p ted to p resen t ev id en ce to co rro b o rate t h is claim

. S ev eral m o n th s later, in th e m o tio n s h e arin g b ef o re th e trial co u rt, Wesley ’s a tto rn ey m erely em p h asized th at th e r esu lts p r in t-o u t f ro m th e m ach i n e w as m issin g . With o u t m o re, Wesley ’s af

f id av it an d h is atto rn e y ’s arg u m en t am o u n t to n o th in g b u t u n su p p o rted claim s. With n o acco m

p an y in g alleg a tio n s o f

f rau d o r serio u s d iscrep an cies in th e v o te co u n t an d n o r e a s o n to d o u b t th at th e o rig in al electio n f ailed to ex p ress th e w ill o f th e v o ters, w e can n o t f in d th a t th e claim s reg ard in g L ak e V ista L o d g e M ach in e # 1 create a g e n u in e issu e o f m aterial f

act to rev e rse su m m ary

j u d g m en t ag ain st Wesley

. 4“various technical glitches” and “im proper handling of paper ballots” had o ccurred, but he noted that W e sley “did n ot al l e g e f r a u d u lent or intentional illegal conduct on the part of election of

f icials.” According to McGee, allegations of f raud or i ntentional wrongdoing are
necessary bef ore a Mississippi court will overturn an election. ¶6. Meanwhile, the W CDEC presents argum ents sim ilar to M cGee’s. It notes that only twenty

- f our ballots c ast in the election were known to be paper ballots, b ut it concedes “that there w ere i rregul a r i t i e s com m itted while the paper ballots were being counted.” Still, the
W C DEC e m

phasizes that v oters cast 97.2% of t he b allots in the election on e l ectronic voting

m achines (EVMs) and that W esley “of f ered no evidence that the integrity of the 802 votes

cast by EVMs w as destroy ed or placed in dou b t .” Per the W CDEC, W esley should have shown t hat an e rror in the EVM vote totals ha d o c c u r r e d

. Since he did not, too f ew disqualif i ed votes existed to warrant a new election. ¶7. In response to the argum ents of McGee and the W CDEC, W esley ass e r t s that “the

m ultiple b allot box s ecurity issues called all o f the v otes into question.” He also rem arks that
“no o ne . . . can be certai n h ow m any paper ballots were cast i n this election because the boxes were never properly secured.” Thus, according to W esley , the pe r c entage of paper ballots versus e lectronic ballots was irrelevant, and the i rregularities r equire a n ew election, whether or not they were f raudulent in nature.

ANALYSIS ¶8. Now , mo r e t h a n t w o y ears af ter voters f

irst w ent to the polls in the Dem ocratic prim ary f or W ashington County District 3 Supervisor, this Court m ust decide whether

5sum m ary

judgm ent against W esley was appropriate. ¶9. In doing so, and in accord with longstanding practices, “[ t]his Court applies a de novo standard of review to a c ircuit court’s g rant or d enial of sum m ary judgm ent.” Indem nity Ins. Co. of N. Am . v. Guidant Mut. Ins. Co. , 99 So. 3 d 1 4 2, 149 (Miss. 2012). Sum m ary judgm ent is proper “ if the pleadings, depositions, answers to i nterrogatories and adm issions

on f ile , t o g e t h er with t he af

f i davits, if any , show that there i s no g enuine i ssue as to any

m aterial f act and that the m o ving party is entitled to a judgm ent as a m atter o f l aw.” Miss.
R. Civ. P. 56(c ) ; see also Indem nity Ins. Co. of N. Am . , 99 S o. 3d a t 149. In assessing

sum m ary judgm ent, “ the evidence m ust be v iewe d i n t h e l ight m o st f a vorable to the party against whom the m otion has been m ade.” Kilhullen v. Kansas City S. Ry. , 8 So. 3d 168, 174 (Miss. 2009) (citing Daniels v. GNB, Inc. , 629 So. 2d 595, 599 (Miss. 1993)). ¶10. W h en a case involves an election, court s t r e a d c aref ully , warranting new prim ary elections o nly under certain circum stances. “ In a prim ary election contest, an election should be voided only i f there has been such a d e p arture f rom statutory com

pliance ‘as to destroy the integrity o f t h e e l e c t ion and m ake the will of the qualif i ed electors im

possible to

a scertain.’” Waters v. Gnem i , 907 So. 2d 3 07, 315-16 (Miss. 2005) ( quoting Riley v . Clayton , 4 41 So. 2d 1322, 1328 (Miss. 1983)). The key to reviewing a n election is to take the interests of the candidates i nto account while at t he s am e t im e ultim a tely s eeking to f ulf ill the will of the v oters. Noxubee Cty. Dem ocratic Exec. Com m . v. Russell , 443 So. 2d 1191, 1197 (Miss. 1983); Rogers v. Holder , 636 So. 2d 645, 651 ( Miss. 1994); see also Guice v.
McGehee , 124 So. 643, 647 (Miss. 1929) (noting “a ge n e r a l r ule that e lection laws are

6construed liberally in f avor of the electors”). ¶11. Mississippi law s e ts detailed guidelines f or local of

f icials to f ollow when conducting

an election, an d t h o s e g uidelines address the proper m eans f or s e curing election m aterials both b ef ore and af ter voters have cast their ballots. In the case b ef ore us, M ississippi Code Section 23-15-597 controls. This section r equires t h a t , a f ter a county p rim ary election, a

m ajor political party ’s county executive com m i ttee is r equired to canvass the votes, unless it has an o therwise legal, written agreem e nt with t h e c ircuit clerk or t he c ounty election

com m ission perm itting t he circuit clerk or county election com m i ssion t o help in the
p r ocess. 2 Miss. Code Ann. § 23-15-597 (Rev. 2015). Once t he c anvassing process f o r a ballot box is com

p lete, the law requires that [ A]ll the contents of the box required t o be placed and sealed i n the ballot b ox by the m anagers shall be replac e d t herein by the election com m ission or executive com m itt e e , a s t h e case m ay b e, and the box s hall be f orthwith resealed and delivered to the circuit clerk, who shall s af e ly keep and secure the sam e against any tam

pering therewith. Miss. Code Ann. § 23

- 1 5

- 9 1 1 ( 1 ) (Rev. 2015). 3 Item s that should have been sealed in the ballot box by that point include “all ballots voted, a l l spoiled b allots,

. . . a ll unused ballots,” a certif i cate declaring the voting results, and: [ O]ne of the duplicate receipts given by the m anager who received the blank ballots received f

or that box; and the total ballots voted, and the spoiled ballots and the unused ballots m

u s t correspond i n total with the said duplicate r eceipt or else the f

a ilure t h ereof m

ust be perf

ectly accounted f

or by a written statem ent, under oath of the m anagers, which statem ent m ust be inclosed i n the

2 “C an v ass” h ere m ean s “ [ t] o f o rm ally co u n t b a l lo ts an d rep o rt th e retu r n s.” C a n v a ss , B l ack ’s L aw D i ctio n ary

(4 th p o ck et ed

. 2 0 1 1 ).

3 A 2017 am endm ent to t his statute added the word “poll” in f ront of m anagers and rem oved the word “therewith.” 7ballot box. There shall be also inclosed in said box t he tally l i s t , t h e r eceipt

booklet containing t he signed nam es o f the voters who voted; and the num ber of ballots v oted m

ust correspond with the num ber of nam es s i gned i n said receipt booklet. Miss. Code Ann. § 2 3-15-591 ( Rev. 2 0 1 5 )

. 4 Circuit clerks even m ust f ollow specif

ic procedures f

or sealing and r esealing b allot boxes. Miss. Code Ann. § 2 3-1 5

- 5 9 5 ( R ev. 2015). W h en irregularities occur regarding ballot-box m aterials, determ ining the “will of the
voters” is a core consideration, and under certain circum stances, if the will of the voters is
im p ossibl e to discern, “the entire box m ay be thrown o ut.” Miss. Code Ann. § 23-15-593 ( R e v . 2 0 1 5 ). Theref

ore, the law u nquestionably requires that local of f icials handle bal l o t

- b o x

m aterials with great care. ¶12. The need f

or care also extends to votes cast on e l ectronic voting equipm ent. In 2015, af ter assessing election results, poll m anagers had to transport electronic voting m aterials to county or m

unicipality tabulating centers. Miss. Code Ann. § 2 3-15-531

. 1 0 ( R ev. 2015). Subsequently , the f

ollowing procedure was to take place: Upon receipt of the s ealed enve lope or com m unication pack containing the zero ta p e s , r e sults tapes and m em ory cards, the o f f icials i n c h arge of the election shall verif

y the signatures on the envelope o r com m u nica t i o n p ack. Once verif

ied, the of f icials in charge of the election shall break the seal of the envelope or com m

u nicati o n p a c k a nd rem ove its contents. The of f i cials in c h a r g e o f t he election s hall then download t he results stored on the m em or y card f rom each DRE unit into the election m anagem ent sy stem located at the central tabulation point o f the county in o rder t o obtain election r esults f or certif ication.

4 A 2 0 1 7 am en d m e n t to th is statu te m ad e m in o r rev isio n s to th e statu t e’s w o rd in g . 8Miss. Code Ann. § 23-15-531.10(7) (Rev. 2015). 5

¶13. This Court has addressed election challenges on num e rous o c c a s i o n s . S e e , e.g. , Rogers , 636 So. 2 d 645; Waters , 9 0 7 S o . 2 d 307; Ruhl v. Walton , 955 So. 2d 279 (Miss. 2007); Esco v. Blackm on , 692 So. 2d 74 (Miss. 1997); Noxubee Cty. , 443 So. 2d 1191. In such cases, several c onsiderations have play ed roles in the C o urt’s decisions. In general, the
Court has sought to uphold t he i ntegrity of t he election process and f o llow the wishes of the

voters. Waters , 907 S o . 2 d at 315-16. More specif ically , the C ourt also h as looked to determ ine whether a violated s tatute is m andatory or m erely directory

. Rogers , 636 So. 2d

at 647-48. “If the v iolated statute is direc t o r y r a t her than m andatory and there is no allegation or proof

of f raud, the non-com

ply ing ballots are valid and properly counted,” as long as the integrity of t he election is preserved. Id. at 648. On t he other hand, “[ v]otes not in com pliance with m andatory provisions of election s tatutes are illegal. Votes illegally cast

are im properly counted.” Id. Thus, the nature of e lection statutes helps to determ i ne which

votes count or not. ¶14. Som etim es, t hough, election i rregularities rise to a l evel warranting c onsideration of a new election. In such cases, this Court has im plem ented the f

ollowing test:
W h en an election has been successf ully contested, this Court h as em ploy ed dif f erent tests over the y ears to aid its d eterm ination of what f orm o f relief is in order. By

various routes, we have attem pted to discern whether the entire election should b e thrown out or only the tainted votes. W e have em ploy ed a two pronged test which though it has b een s tated in dif f erent w ay s, essentially provides that special electio n s w i l l be required only when (1) enough i llegal votes were cast f

or t he c ontestee to change the result of the election, or ( 2) so

5 A 2 0 1 7 am en d m e n t to th is statu te m ad e m in o r rev isio n s to th e statu te’s w o r d in g an d rem o v ed th e ref

eren ce to v e rif

y in g sig n atu res o n th e en v elo p e o r co m m u n i catio n p ack

. 9m any votes are disqualif ied that the w ill of the voters is im possible t o discern.
N o x u b e e C t y . , 443 So. 2d at 1197. Som etim es the t est shows that a new election is warranted. Som etim e s it does not, even if a lim ited num

ber of votes is discounted. ¶15. Either way , the f

actors w e consider when evaluating e lections som etim es com bine to deem v otes il l e g a l o r d i s qualif ied f or reasons t hat, on their f ace, m ight seem m inor. In
Noxubee County , f

o u r voting boxes were worthy of disqualif ication because “the receiving

m anager and initialing ma nager were one a n d t he sam e person.” Id. ; see also Prescott v. Ellis , 269 So. 2d 635, 636 ( Miss. 1971). Even so, t he disqualif ication af f ected too f

ew votes to require a new election. Noxubee Cty. , 443 So. 2d at 1198. ¶16. In another case, this Court threw out t h r e e absentee ballots because t he town clerk delivered them to her relatives im properly

. L ewis v

. Griffith , 6 64 So. 2 d 1 77 (Miss. 1995).
In s till another case, a n ew Dem ocratic prim a ry election w as perm itted because, d uring and af ter the initial prim ary , neither the Dem ocratic Party c o u n t y executive com m i ttee nor the circuit c lerk had m aintained proper control of the election m aterials and because m aterials
f rom several precincts ended u p in two, unsecured cardboard b oxes. Waters , 907 So. 2d at 332-35. ¶17. Im portantly , a showing of f

raud or sim i lar activity is not required in o rder f or a new election t o be warranted. A s noted in Noxubee County , dem o nstrating f raudulent electoral activity helps m ee t the t hreshold f or calling voters back to the polls; though “the disenf ranchisem ent of

a signif icant num ber of voters will cast enough doubt on the results of an e lection to warrant voiding i t.” Noxubee Cty. , 443 So. 2d at 1198. As a r esult, evidence

1 0of

f raudulent activity

is not required bef

ore calling a new election, even if the lack of

such

a requirem ent risks the possibility that losing candidates could t ry t o benef i t f rom “ innocent hum an error.” I

d . at 1197. In Waters , this C o urt reaf f irm ed this standard, granting a new election and specif

ically stating that it was not accusing Holm es County election of f icials of “intended wrongdoing.” Waters , 907 So. 2d at 336. ¶18. Just a s f

r a u d u l e n t a c t i v i t y i n a n election i s not required i n order f or v otes to be discounted, no hard and f ast equation exists f

or determ ining when to reject the r esults of an election and hold a new o ne. Som e cases suggest that w hen t hirty p ercent of the votes are disqualif i ed, courts s h ould order a new election; y et those sam e cases leave the door open f or

new elections even w hen the percentage of discounted votes is sm aller. Noxubee Cty. , 443
So. 2d at 1198; R izzo v. Bizzell , 5 30 So. 2d 121, 128 ( Miss. 1988). Ultim ately then, one of the m ost im

portant tests f

or a ssessing an election is t he two-pronged t est exam ining the

num bers of illegal and d isqualif ied votes. Noxubee Cty. , 443 So. 2d a t 1197. The f irst prong of t he test exam ines whether “enough illegal votes were cast f or the contestee to change the result o f the election,” an d t h e s e cond prong exam i nes whether “so m any votes are disqualif i ed that the will of

the voters is im

possible to discern.” I

d. ¶19. W e readily f

ind t hat t he f

irst prong of the test is irrelevant t o the f acts of this case. On appeal, W esley

adm its that he “m ay

not have alleged f

raud.” W i th no allegations of illegal voting and no specif

ic a llegations of f

raudulent election activity , w e turn our analy sis to the second prong of

the Noxubee County test. ¶20. Apply ing the second pron g , w e a s k w h ether W esley established a genuine issue of

1 1m aterial f

act regarding the n u m

ber of votes that should have been d isqualif ied in the election. The cases cited a

bove show that the disqualif ication of votes c an occur even without
f raudulent activity by election of f i cials. Here, W esley supported his position, m aking largely

u n c o n t r adicted a llegations of lapses in ballot-box s ecurity ; though h e f a iled to show that enough votes should be disqualif ied to give him

another chance to win the election. ¶21. Of W esley ’s nine a llegations o n appeal, the f if th, sixt h , a n d s e v e n t h a d d r e s s ed potentially im

p roper activity by the circuit clerk and county election com m issio n e r s w h en processing election r esults. S ignif icantly though, W esley m ade n o s p ecif ic claim s indicating that t he of

f icials reached t he wrong results. Adm ittedly , the Waters case exam ined sim ilar
im p roper activity and granted a new election; but in that c ase, an alm ost com p lete breakdown of responsibility occurred am ong the Dem ocratic county e xecutive com m ittee m em bers, the election com m issioners, and the circuit clerk. Waters , 907 So. 2d at 331-33. Alm ost no one f ulf illed his or her proper election role, and though n ot determ inative of the outcom e of the

case, of f icials had m ade s evere m i stakes in calculating the i nitial winner of the prim ary . Id. at 310-12, 331-33. ¶22. W e sley f

ailed t o allege such severe irregularities here. H e i ndicated that at least one

com m issioner participated in canvassing the vote when the W CDEC alone should have been involved. He also argued that the circuit clerk tallied the absentee and af f idavit ballots when the W CDEC s h ould have done so i nstead. Such activities, if true, certainly call into question the accuracy o f W CDEC’s ef f orts involved. H owever, by them selves, the activities do not call into question the integrity of the entire election.

1 2¶23. Of m ore signif icance ar e We s l e y ’ s c l a i ms t h a t election of f icials alm ost entirely neglected ballot-box s ecurity in the af term ath of the election. W esley alleged that the seals

on boxes were inappropriate, that the circuit clerk f ailed t o m aintain control o f the boxes, and that “there was no evidence i n any of the boxes that ballots w ere prop e rly received and accounted f

or by the Receiv ing Managers at t he polls.” If true, the irregularities represent serious violations o f election law. In Noxubee County and Waters , this Court discounted

votes f or sim ilar violations, a nd in Waters , a new election was warranted. Waters , 907 So. 2d 307; N

oxubee County , 443 S o. 2d 1191. If paper ballots alone had been involved here, the c ircum stances alm ost certainly would dem onstrate the need f or voters t o cast t heir votes again. But paper ballots were not the only ballots in this election: the record indicates that only twenty

- f

our paper ballots were successf ully cast. W esley aptly claim ed that, due to the election irregularities, n o o n e can know how m any paper ballots voters tried to cast. On appeal, however, he points to no specif ic d iscrepancies in the p aper-ballot vote c ount. Even if this Court discounted all o f the paper ballots t allied in the race, the election results would

rem ain unchanged. ¶24. A l t e r n a t i v e l y , the record dem onstrates that e lectronic b allots represented the v a s t

m ajority of votes cast during the e lection. If W esley successf ully called into question their integrity , our decision today l ikely would be dif f e r ent. But on appeal, W esley ’s only specif ic ref erences to the electronic ballots were that “ t he election m achine m em ory cards and results
f rom m achines were n o t in any c losed box whatsoever” a nd that “the results f rom the Lake Vista Lodge Machine #1 could not be f ound during W esley ’ s e xam ination.” Notably , he did

1 3not say

whether he could determ ine if the electronic votes were properly downloaded af

ter the election. See M iss. Code Ann. § 23-15-531.10(7) (Rev. 2015). He also did n ot suggest that the m em ory

cards showed signs of

tam pering. W esley m a y have alleged irregularities
in the election process, but given the saf eguards norm ally built into electronic voting

m achines, it is dif

f icult to conclude t hat the irregularities either called into question the integrity of the election or blurred the will of the v oters. W ithout m ore, W esley has f ailed

to establish a genuine issue of m aterial f a ct t hat w ould suggest the need f or a new election. ¶25. The Court recognizes and c r i t i c ally considers W esley ’s allegations of violations of election p rocedure. Those a llegations m ay h ave f ailed to ref

ute the validity of the election, but if t rue, they represent serious violations of existing election law and a f ailure of election

o f f icials to f ulf ill their duties. This is especially true here, where b oth McGee a n d t h e W C DEC appeared t o agree w ith W esley that at least som e irregularities occurred. W hile we recognize that no election is f lawless, we encourage e lection of f i cials in the county to adopt a stricter adherence to the State’s election laws to prevent sim ilar m atters in the f uture. CONCLUSION ¶26. Af ter apply ing the two-pronged test f rom Noxubee County , we af f irm the trial-court judgm ent. N

oxubee Cty. , 443 So. 2d at 1197. A key part of analy zing an election involves determ ining whether the will of the voters i s clear. S ee, e.g., Waters v. Gnem i , 907 So. 2d

at 315-16. W esley ’s allegations su ggest that serious violations of e lection l aw m ay have occurred during the 2015 Dem ocratic prim ary f or W a shington County District 3 S upervisor, but W esley f

ailed to indicate that enough illegal votes were cast to warrant a new election.

1 4He also f

ailed to show that e n o u g h v o t e s were disqualif ied to warrant a new election. Finding that W esley f

a iled t o me et the requirem ents under the Noxubee County test, we af f irm the circuit court’s decision to dism iss the case on def endant’s sum m a r y j u d g me nt

m otion. ¶27. AFFIRMED.
W A L LER, C.J., RANDOLPH AND KITCHENS, P.JJ., COLEMAN, MAX W ELL, CHAMBERLIN AND I SHEE, JJ., CONCUR. KIN G , J ., NOT PARTICIPATING.

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