Larry Fluker v. Pete Wolff III

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REL:03/19/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o formal r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ( ( 3 3 4 ) 2 2 9 ¬ 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010 1081708 Larry Fluker v. Pete W o l f f I I I Appeal PER from Conecuh C i r c u i t (CV-08-80) Court CURIAM. Larry Fluker appeals election contest election to theoffice affirm. filed from a judgment a g a i n s t by Pete Wolff o f mayor h i m i n an I I I challenging of theC i t y Fluker's of Evergreen. We 1081708 Facts and P r o c e d u r a l On O c t o b e r 7, 2 0 0 8 , a r u n o f f was held i n the City candidates received were 1,028 of Wolff votes History election Evergreen and and ("the C i t y " ) . Fluker, Wolff i n t h e mayor's the The incumbent. received 1,026 race two Fluker votes. On O c t o b e r 14, 2008, t h e C i t y c e r t i f i e d t h e e l e c t i o n r e s u l t s , Fluker was declared filed a contest Wolff claimed which i f cast legal of the e l e c t i o n that legal On October votes were offered t o a number number o f l e g a l v o t e s i n favor of Fluker. votes those votes favor of Fluker legal votes responded, and and counted, would have i n c r e a s e d of Wolff illegal 15, 2008, i n the Conecuh C i r c u i t i n favor that votes the winner. were were not would i n favor claiming cast counted be reduced that and t h a t l e g a l v o t e s that i f both still exceed taken to less On illegal votes account Wolff's. 2 than were Court. rejected, exceeded the Wolff October i n Fluker's into that of Wolff t h e number o f also of Fluker t h e number of Wolff. Wolff were i n favor and claimed and t h a t i f legal votes in t h e number o f 16, 2008, cast Fluker i n favor of f a v o r were r e j e c t e d and h i s vote tally would 1081708 On October §§ 17-16-45 ballots, court 22, The and 23, i n the runoff of registered pursuant to voters state's set a hearing 2008. At f o r December t h e December Wolff w h o s e names w e r e maintained o f f i c e d a t e d December be m a t e r i a l s , which the c i r c u i t election office. would a motion i n d i c a t e d t h a t he w o u l d be c h a l l e n g i n g state's he filed c i r c u i t court December counsel voted list Wolff a n d - 4 6 , A l a . C o d e 1 9 7 5 , f o r an e x a m i n a t i o n o f t h e granted. Wolff's 2008, documents, and e l e c t i o n 2008, who 20, had a v o t e r challenging list 19, 2008. voters on by the hearing, persons n o t on t h e secretary of from the s e c r e t a r y Wolff several indicated other of that grounds as well. Wolff witness called Peggy the hearing. at compilation asked about 1 Section of the v o t e r Howell, the c l e r k Howell list absentee-voter used testified by information 1 7 - 1 1 - 1 5 , A l a . Code f o r the C i t y , 1975, regarding the C i t y . on Howell several a the was voters. provides: " I n any m u n i c i p a l e l e c t i o n t h a t i s h e l d a t a time d i f f e r e n t from a primary or general election, the duties with reference to the handling of absentee b a l l o t s which are r e q u i r e d of the c i r c u i t c l e r k s h a l l be p e r f o r m e d by t h e town c l e r k , city c l e r k , or other o f f i c e r performing the d u t i e s of the clerk. I f such c l e r k or other o f f i c e r i s also a candidate i n such e l e c t i o n , the governing body of 3 as 1 1081708 Wolff in presented person absentee the testimony on O c t o b e r 7, 2 0 0 8 , vote F.D. t e s t i f i e d b u t t h a t someone to vote by absentee affidavit absentee 2. ballot T.M. runoff Fluker. that he was r e g i s t e r e d s i g n e d an a p p l i c a t i o n that because he was voting. F.D. f o r on s o m e o n e h a d come t o h i s testified t h a t he v o t e d He s t a t e d that On c r o s s - e x a m i n a t i o n , T.M. to vote on a S u n d a y n o t remember i f he r e g i s t e r e d or September f o r him him to vote. election. registered to e v e n t h o u g h he s i g n e d t h e t h a t h e d i d n o t know whom he v o t e d home a n d a s k e d he votes a n d t h r e e v o t e r s who v o t e d b y ballot affirming testified the v o t e r s who c a s t ballot: 1. his o f seven i n person i n he v o t e d f o r testified but that that he d i d on S e p t e m b e r 2 1 , 2008, 28, 2008. the c i t y o r town s h a l l a p p o i n t a q u a l i f i e d e l e c t o r of t h e c i t y o r town t o p e r f o r m t h e d u t i e s . Such person so a p p o i n t e d shall have a l l t h e powers, d u t i e s , and r e s p o n s i b i l i t i e s o f t h e c i r c u i t clerk u n d e r t h i s c h a p t e r a n d s h a l l be e n t i t l e d t o t h e compensation p r o v i d e d by S e c t i o n 17-11-14." The a b s e n t e e v o t e r s a s t o whom H o w e l l was q u e s t i o n e d w e r e : A.A., I . G . , S . L . , B . E . , P . L . , E . Z . T . , a n d E.T. 4 1081708 3. C.H. the runoff was correct that Main four He s t a t e d that C.H. t e s t i f i e d but that exhibit had the correct number. Fluker. Wolff's street P.C. 5. the N.G. runoff to vote, testified election. City's that list later one. that for i n person i n the exhibit and i d e n t i f i e d of state's stated list he v o t e d i n voter f o r her address counsel name was n o t on e x h i b i t voter h i s a d d r e s s was she v o t e d counsel date address. She s t a t e d one ( t h e s e c r e t a r y incorrect the that t o h e r by W o l f f ' s hisbirth that that showed a d i f f e r e n t election. i n person i n of state's He s t a t e d P.C. t e s t i f i e d runoff shown he v o t e d to him. Street, 4. that on t h e s e c r e t a r y four. district the election. was s h o w n district on testified that as list) b u t an she v o t e d f o r stated that P.C.'s 2 she v o t e d She s t a t e d h e r name was o n o n e l i s t that i n person i n when s h e w e n t b u t n o t on a n o t h e r F o l l o w i n g P.C.'s t e s t i m o n y , J . J . was c a l l e d t o t e s t i f y . Wolff's counsel i n d i c a t e d t h a t J . J . was n o t a v a i l a b l e b u t s t a t e d t h a t J . J . ' s name was h a n d w r i t t e n i n on t h e d i s t r i c t - t w o v o t e r l i s t a n d t h a t h e r name d i d n o t a p p e a r o n t h e s e c r e t a r y of s t a t e ' s v o t e r l i s t . 2 5 1081708 list s o s h e was t o l d from the board obtained of registrars. the card address t o g e t an i d e n t i f i c a t i o n registered to vote from name voter was t h a t she She s t a t e d that her when years e m e r g e n c y 9-1-1 s y s t e m . N.G.'s N.G. s t a t e d and v o t e d . had changed she had o r i g i n a l l y ago as a r e s u l t Wolff's n o t on counsel o f a new stated the secretary of that state's list. 6. runoff voter E.R. s t a t e d election. list married maiden when that She s t a t e d she went and t h e v o t e r name. she v o t e d secretary 7. of state's R.T. runoff election. because had her l i s t e d counsel voter testified i n person stated that list. 6 under h e r that neither 3 that i n person i n he v o t e d f o r A t t h e c o n c l u s i o n o f E.R.'s t e s t i m o n y , H o w e v e r , J . P . was n o t i n t h e c o u r t r o o m . i n d i c a t e d t h a t J . P . ' s name was h a n d w r i t t e n l i s t u s e d b y t h e C i t y b u t t h a t h i s name a l s o secretary of state's voter list, although d i f f e r e n t on t h a t list. 3 she had name w e r e o n t h e he v o t e d He s t a t e d i n the s h e was n o t o n t h e to vote list Wolff's that E . R . ' s m a i d e n name n o r h e r m a r r i e d the card J . P . was c a l l e d . Wolff's counsel i n on t h e v o t e r a p p e a r e d on t h e h i s a d d r e s s was 1081708 Fluker. not Wolff's appear 8. the runoff voter s t a t e d t h a t R.T.'s name d i d on t h e s e c r e t a r y B.W. B.W.'s counsel testified election. name was of state's that voter she v o t e d Wolff's list. i n person i n indicated the secretary n o t on counsel of state's list. 9. A.S. t e s t i f i e d ballot and application that he he v o t e d voted indicated as absentee f o r Fluker. h i s reason 10. K.C. ballot would him to vote. that he s t a t e d be w o r k i n g K.C. s t a t e d presented addresses and registered to vote. to whom a subpoena he v o t e d that by that absentee would o f two v o t e r s regarding Next, Wolff challenged 7 that he on e l e c t i o n d a y . voters to t e s t i f y that not permit i n his affidavit the testimony two but h i s on h i s a p p l i c a t i o n a shift w o u l d be o u t o f t h e c o u n t y Fluker town, voting on e l e c t i o n d a y . testified and t h a t out of for i n d i c a t e d t h a t he was w o r k i n g a s h i f t him from v o t i n g be A.S.'s affidavit he would by that kept he that absentee their that the regarding date 39 a b s e n t e e had n o t been issued. they voters The 1081708 overwhelming that ground t h e names secretary of f o r c h a l l e n g i n g the absentee b a l l o t s of those state's 39 absentee voter list Other reasons f o r the challenges voting i n t h e wrong incorrect failure addresses, t o have improper regarding on also alleged secretary issues, 19, and questionable on an regarding applications, that 106 He additional challenged v o t i n g by a b s e n t e e regarding Wolff. s i x absentee he c h a l l e n g e d postmarks 17 a b s e n t e e or issues, affidavit, inconsistent and questions ballot. one g r o u n d . were not Wolff on the t h a t had been cast list. challenged the voters 28 a b s e n t e e b a l l o t s identification; with on m o r e t h a n 2008. things, residency or a notary several votes challenged Wolff. problems for December i n c l u d e d , among o t h e r questions of state's voter Fluker testify n o t on t h e i n c o n s i s t e n t reasons f o r v o t i n g by absentee challenged for were of the City, two w i t n e s s e s affidavits Wolff improper dated postmark identification, signatures for district voters was on voters h i s residency. Fluker also called their Next, W.B. Patsy 8 for using 5 absentee voters f o r envelopes; for failing ballot. voters to state Fluker stated called that and a he reason W.B. he to voted C h a p m a n , a member o f t h e 1081708 Conecuh County testified Board of Registrars, as t o t h e c o m p i l a t i o n as a witness. of the v o t e r list Chapman f o r Conecuh County. On March hearing. that 26, At the the 2009, the circuit outset of purpose of hearing the the court held the court hearing, to determine second indicated the duties of the s e c r e t a r y of s t a t e ' s o f f i c e and r e s p o n s i b i l i t i e s was a i n the runoff election. E d P a c k a r d , who the secretary Alabama's those 67 of state's state's counties boards statewide i s employed has a has i n the e l e c t i o n s d i v i s i o n office, testified a board computer of r e g i s t r a r s and system that v o t e r - r e g i s t r a t i o n database office. registration potential form, voter information When the a is eligible i s then entered board to vote into state and relies update upon t h e the list local or she the a and, determines i f so, computer votes. board i n each of r e g i s t e r e d voters. 9 to completes lives he of voter a where each of system aids the board i n determining and of secretary computer voter linked each the first the is in potential local that of that i f the voter's system. i n what The county district secretary to The of maintain 1081708 Packard voters testified in a municipality, secretary does job of not of that the municipal not from state, input the election the in creating records or information input a list of state's statewide edit the registered from the office. The list records; registrars. i n t o the of originates secretary each county's b o a r d of t h a t the certified of that Packard l o c a l b o a r d i s done i n " r e a l time" so t h a t the is updated input. He secretary by that and could printed that not after was be a list October entered August 7, into 2008 December 2008. had an voter's asked is and "created" 2008, w o u l d the system voter that list had another log information to w e r e made b y the of state August one had lists any except any been list Packard request printed to Packard extrapolate compile in system and/or updates to 7, information date. a b o a r d member. could the f o r October s t a t e ' s computer 2008 l i s t s 10 that b e e n p r i n t e d by show when c h a n g e s secretary December 2008 and that by information because include after P a c k a r d noted t h a t the activity i f the produce voter f o r Conecuh County retroactively stated that a statewide in i t of s t a t e ' s o f f i c e d i d not request 2008, as the testified stated soon is s t a t e ' s computer system the as voters, a was from the a list of 1081708 registered voters on October 7, 2008. Packard stated in response: " I h a v e t o t h i n k a b o u t e x a c t l y how we c a n p r o v i d e i t . B e c a u s e o n e o f t h e o p t i o n s we w o u l d h a v e w o u l d be t o go b a c k a n d p r o d u c e a l i s t o f e v e r y o n e who h a d a r e g i s t r a t i o n d a t e u p t o O c t o b e r 7, b u t i f t h e r e w e r e a n y c h a n g e s , y o u k n o w , i t may n o t n e c e s s a r i l y a c c u r a t e l y r e f l e c t who was e l i g i b l e f o r t h a t city election. T h e o r e t i c a l l y , t h o u g h , we c o u l d go i n i f we h a d a b a s e p o i n t l i k e t h e A u g u s t l i s t , y o u k n o w , we could t r y to determine whether someone was changed. Given that there was a l o t of heavy r e g i s t r a t i o n d u r i n g t h a t p e r i o d , t h e r e c o u l d be a s i g n i f i c a n t amount o f c l e r i c a l w o r k t h a t w o u l d n e e d t o b e d o n e . A l t h o u g h we m i g h t b e a b l e t o t a l k t o t h e v e n d o r o f t h e s o f t w a r e t o see i f t h e y c o u l d h e l p us e x t r a c t s o m e t h i n g t h a t w o u l d be m o r e on p o i n t . " The three Registrars members testified. process of entering system linked to of the A l l three a voter's the members information secretary of testimony indicated w h i c h was connected to the secretary register voters. that Conecuh The the board testimony information i s entered information i s sent to the s e c r e t a r y testimony less also into indicated County testified into state's used Board the of state's indicated that, may properly t h a n 10 d a y s p r i o r t o an e l e c t i o n a n d s t i l l be The computer, once to the t h e same of s t a t e ' s computer. no o n e 11 computer computer, the county's computer, that as t o t h e office. i t s own of The register eligible 1081708 to vote board if a i n that election. registers the voter the voter's city requests election, voters address and t h a t i s within a list the county The t e s t i m o n y the City c l e r k the municipal of voters board i n the precincts sends that indicated i n the City county but outside We n o t e t h a t about f o r an u p c o m i n g the city a list and areas that by ballot as are p a r t i a l l y o n e o f t h e r e g i s t r a r s was a s k e d The o f T.M., i n the registrar specifically who testified indicated that the testimony ballot. o f C.C. a n d K.C., b o t h C.C. stated that at the T.M. had Next, Fluker o f whom voted he v o t e d b e c a u s e he w o r k e d a n 1 1 - h o u r s h i f t , to her limits. the C i t y . hearing. absentee of a l l the areas that are t i m e l y r e g i s t e r e d t o v o t e on S e p t e m b e r 2 6 , 2008. presented When municipal are within the municipal the r e g i s t r a t i o n date December determines limits. Some o f t h e p r e c i n c t s i n C o n e c u h C o u n t y i n c l u d e partially that the by a n d K.C. absentee testified residence. On A p r i l 6, 2 0 0 9 , t h e c i r c u i t court entered the following order: "This case i s r e - s e t AM on A p r i l 1 7 , 2 0 0 9 . for further hearing 12 a t 9:00 1081708 "The o f f i c e o f t h e S e c r e t a r y o f S t a t e o f A l a b a m a s h a l l p r o v i d e a copy of the l i s t of q u a l i f i e d v o t e r s of Conecuh C o u n t y a s n e a r a s p o s s i b l e t o t h e c u t o f f d a t e f o r r e g i s t r a t i o n i n t h e O c t o b e r 2008 M a y o r a l r u n o f f f o r t h e C i t y o f E v e r g r e e n t o Ms. P e g g y W. Howell, Evergreen C i t y Clerk. "Ms. Howell will review this list and be prepared t o t e s t i f y a t t h i s h e a r i n g as t o which v o t e r s v o t e d i n the r u n o f f e l e c t i o n and i n which D i s t r i c t and whether they v o t e d i n person or by absentee ballot. She shall also be p r e p a r e d to t e s t i f y as to whether they l i v e d w i t h i n the C i t y l i m i t s and whether they l i v e d i n the D i s t r i c t i n which they voted. "The O f f i c e o f t h e A t t o r n e y G e n e r a l o f A l a b a m a shall provide Ms. Howell with a copy of any d o c u m e n t s he h a d s e i z e d f r o m t h e C i t y f o l l o w i n g t h e runoff e l e c t i o n which will a s s i s t Ms. H o w e l l i n making the d e t e r m i n a t i o n s e t f o r t h above. " T h e C i r c u i t C l e r k s h a l l i s s u e a s u b p o e n a t o Ms. H o w e l l t o a p p e a r a t t h e h e a r i n g on A p r i l 1 7 , 2 0 0 9 , duces tecum t h e above r e f e r e n c e d documents. "The C i r c u i t C l e r k s h a l l i s s u e a s u b p o e n a d u c e s tecum a l s o t o the O f f i c e of the S e c r e t a r y of S t a t e for t h e above r e f e r e n c e d documents. T h i s subpoena may be c o m p l i e d w i t h b y f u r n i s h i n g s a i d d o c u m e n t s t o Ms. H o w e l l a n d r e p o r t i n g t o t h e C l e r k t h a t i t h a s done s o . "The C i r c u i t C l e r k s h a l l i s s u e a s u b p o e n a d u c e s tecum a l s o t o the O f f i c e of the A t t o r n e y G e n e r a l f o r t h e a b o v e r e f e r e n c e d d o c u m e n t s . T h e s u b p o e n a may be c o m p l i e d w i t h b y f u r n i s h i n g s a i d d o c u m e n t s t o Ms. H o w e l l and r e p o r t i n g t o t h e C l e r k t h a t i t has done so. 13 1081708 "In a d d i t i o n to the above subpoenas, the C l e r k s h a l l c a u s e a c o p y o f t h i s O r d e r t o be s e r v e d on b o t h of the above o f f i c e s . " 4 The 2009. hearing At the testimony. had voted i n the the to create. to J u n e 5, list the runoff election secretary i n the she included could brought indicates ballots lieu of Wolff the to ballots. the office i f she she presented were not Dr. also entered with her not to ordered absentee the hearing, that Nothing presented Richard signatures that the in c a s t f o r F l u k e r and 22 the testimony of signatures applications supporting the ballots the record and the evidence. Roper, regarding on were the realize stated courtroom. into voters been brought did She had 5, Howell's whether those voters election that f o r June whether c e r t a i n state's asked runoff and reset t h a t the b a l l o t s were e v e r b r o u g h t t o c o u r t , Wolff expert, of was responded subpoena be 2 0 0 9 , was 2009, h e a r i n g , Howell 5 cast which 17, Howell t e s t i f i e d regarding on ballots set for A p r i l for affidavits. a handwriting or "marks" absentee in ballots Those v o t e r s were: N o t h i n g i n t h e r e c o r d i n d i c a t e s t h a t t h e C i t y and C o n e c u h C o u n t y had a c o n t r a c t p u r s u a n t t o § 11-46-4, A l a . Code 1975, for the county to p r o v i d e the C i t y a l i s t of v o t e r s r e g i s t e r e d to vote i n C i t y e l e c t i o n s . 4 5 Those voters were L.S., N.P., 14 and W.R. 1081708 C.B., R.C., E.D., D.D., V . F . , E.G., J . H . , S.H., M . I . , S.J., H.L., S . L . , E.M., S.M., F.M., M.T., F.T., a n d N.W. objected Fluker's R.S., M.S., counsel to h i s testimony K.T., S.T., cross-examined on t h e f o l l o w i n g Roper and grounds: "Your Honor, I would move to exclude the t e s t i m o n y o f M r . R o p e r on t h e g r o u n d t h a t h e d i d n o t o b s e r v e a n d was n o t p r e s e n t when a n y o f t h e s e p e o p l e g a v e o r made t h e s i g n a t u r e s t h a t h e e x a m i n e d . He d i d not take any sample w r i t i n g s from any o f these f o l k s i n t h e u s u a l way t h a t i t i s d o n e . A n d he d i d n o t examine the o r i g i n a l documents and that h i s testimony f o r that reason i s s p e c u l a t i v e . [ W o l f f ' s c o u n s e l ] s h o u l d be r e q u i r e d t o c a l l the actual v o t e r s and take t h e i r t e s t i m o n y about whether o r n o t t h e i r s i g n a t u r e [ i s ] on t h o s e t w o d o c u m e n t s o r n o t before any o f them a r e d e n i e d t h e r i g h t of a l l citizens to cast a vote." The circuit testimony. the court denied Roper's testimony application had been executed presented additional testimony that 24, 2009, 31 i l l e g a l t h a t 24 i l l e g a l tally evidence regarding exclude Roper's t h a t i n each instance and t h e s u p p o r t i n g writers. Wolff absentee v o t e r s and by absentee the c i r c u i t votes to ballot by d i f f e r e n t o f L . T . , who v o t e d On A u g u s t finding indicated f o r the absentee affidavit the the motion court had been then ballot. entered cast an order f o r F l u k e r and v o t e s had been c a s t f o r W o l f f , making t h e v o t e 1,002 i n f a v o r o f W o l f f a n d 997 i n f a v o r o f F l u k e r . 15 The 1081708 circuit the court that Wolff names o f a p p r o x i m a t e l y election list. the stated d i d not appear 400 v o t e r s on However, a f t e r a l i s t secretary discovered, of state's c a s t by v o t e r s ground. alleged of state's of registered voters dated by list 6, 2008, for failure to five. who v o t e d i n t h e w r o n g d i s t r i c t the parties would not be excluded also informed the p a r t i e s that on for nor would dates of voters on t h e i r With absentee had regard absentee voters of or the c i r c u i t who state's court had v o t e d i t i n v a l i d a t e the addresses or to the absentee birth ballots i n v a l i d a t e d the b a l l o t s of f o r Fluker the voters' voter reasons affidavits. to the challenges grounds: 2 b a l l o t s because secretary inconsistent applications brought by W o l f f , 30 who ballot that i t would not who g a v e i n c o n s i s t e n t ballots The o f t h e C i t y and i n v a l i d a t e the b a l l o t s of voters by was noted that i tinformed that p a r t i e s that b a l l o t s The c o u r t voting voter produced by October of state's voter that i n the runoff W o l f f r e d u c e d t h e number o f c h a l l e n g e s court challenged who v o t e d the secretary office t o a p p e a r on t h e s e c r e t a r y circuit had o r i g i n a l l y l i s t ; on t h e f o l l o w i n g names w e r e n o t on t h e 18 ballots because a d i f f e r e n t person had executed the a p p l i c a t i o n f o r the absentee 16 1081708 b a l l o t a n d t h e s u p p o r t i n g a f f i d a v i t ; 1 b a l l o t b e c a u s e t h e same person not only signed also a signed as "incapacitated"; the affidavit, the application witness; 1 ballot n o r was 1 ballot because current; ballot City; the of 3 ballots because City. T.M., because cutoff he erroneously voted was no w i t n e s s e s on notarized; used t o vote of i n s u f f i c i e n t exemption the voter's the c i r c u i t i n person allegedly 2 ballots absentee was postmarks; claimed 1 outside the residency was outside court excluded the vote t h e day on registered appeals, arguing disqualified not on t h e v o t e r He further disqualified circuit because the voter of the election, to vote after the 10-day for registration. Fluker failure because Additionally, who was the a f f i d a v i t of a homestead and 1 b a l l o t because there b e c a u s e t h e means o f i d e n t i f i c a t i o n not and t h e a f f i d a v i t , b u t list that two v o t e r s the because circuit their maintained by t h e s e c r e t a r y argues that circuit voters based t o submit evidence court's the on the 17 of were state. wrongfully Wolff's " i n c a p a c i t y " ; ( 2 )the interpretation domicile; ( 3 ) i n c o n s i s t e n t evidence names following: (1) of a voter's incorrect court court regarding of the the date law of a voter 1081708 registered; and contradiction (4) to testimony of Alabama Rules the F l u k e r a r g u e s t h a t t h e r e w e r e no those in ballots the record stipulation and, admitted to as Wolff show the that there f i n d i n g s as d i d not to statute L o n g v. Evidence. that absentee voters how these Lastly, was entered support voters cast a ballots; the their of nothing into cast their to in or c o p i e s there parties i s nothing expert circuit ballots. cross-appeal. election governing construed. of absentee b a l l o t s the Standard "An handwriting evidence; that t o how therefore, court's into a contest the 992 is Review a election W a t t e r s v. Bryant, of statutory m u s t be L y o n s , 199 So. 2d 673, strictly A l a 525, 680 matter, 66 (Ala. So. and observed 436 the and (1914)." 2008). "In r e v i e w i n g a t r i a l c o u r t ' s f i n d i n g s of f a c t i n an e l e c t i o n c o n t e s t , we a p p l y t h e same s t a n d a r d u s e d b y a p p e l l a t e c o u r t s when t h e t r i a l c o u r t i n a n o n j u r y c a s e has t a k e n a m a t e r i a l p a r t o f t h e e v i d e n c e t h r o u g h ore tenus t e s t i m o n y ; t h a t i s , we w i l l n o t d i s t u r b t h e trial c o u r t ' s f i n d i n g s o f f a c t u n l e s s t h o s e f i n d i n g s a r e p l a i n l y and p a l p a b l y w r o n g and n o t s u p p o r t e d by t h e evidence." Williams v. "The fact,' Lide, [ore whether 628 So. 2d tenus] rule the dispute 531, 534 applies is 18 (Ala. to based 1993). 'disputed entirely issues upon of oral 1081708 testimony or documentary upon a combination evidence." State Univ., Clark, 662 778 So. So. 2d 2d 669, Reed v. of oral Board 791, 795 672 (Ala. of testimony Trs. ( A l a . 2000) for (citing and Alabama Born v. 1995)). "'[W]here the evidence had been [ p r e s e n t e d ] ore tenus, a presumption of c o r r e c t n e s s a t t e n d s the t r i a l c o u r t ' s c o n c l u s i o n on i s s u e s o f f a c t , a n d t h i s Court w i l l not d i s t u r b the t r i a l c o u r t ' s c o n c l u s i o n u n l e s s i t i s c l e a r l y e r r o n e o u s and a g a i n s t t h e g r e a t weight of the e v i d e n c e , but w i l l a f f i r m the judgment i f , u n d e r any r e a s o n a b l e a s p e c t , i t i s s u p p o r t e d by credible evidence.'" Reed, 778 358, 360 the So. trial at 795 (Ala. 1977)). court's witnesses and credibility 154, 2d 155 i t s (quoting Raidt The unique ore tenus position "better Crane, 342 presumption to directly opportunity of t h e i r t e s t i m o n y . " (Ala. v. to So. i s based observe pass Ex p a r t e P i e l a c h , on the upon 681 2d the So. 2d 1996). Discussion F l u k e r , who than whom was on contends appeal, the absentee election. r e p r e s e n t e d by d i f f e r e n t that nothing ballots were argues t h a t under Rule best evidence o f how the absentee the ballots themselves. He r e c o r d shows f o r voted 1002, trial in A l a . R. the runoff Evid., voters cast their ballots contends 19 i n the cast He counsel at that under Rule the is 1003, 1081708 Ala. R. Evid., photocopies Fluker argues disclosed further of the by the the record attorneys' recitation cannot be absentee b a l l o t s court's therefore, should In be votes returned response cast, there invalidation those to t h i s i s no subtracted to matters not on appeal. He to a t t r i b u t e way any i s nothing of those from sufficed. of considered argues t h a t , because there circuit tally that of the b a l l o t s w o u l d have to support votes and Fluker's the that, total vote Fluker. argument, Wolff states in his brief: "Finally, Fluker submits that there is no evidence other than the charts submitted by the p a r t i e s o f how t h e a b s e n t e e v o t e r s c a s t t h e i r v o t e s . That i s q u i t e s i m p l y because the lawyers f o r the p a r t i e s under the s u p e r v i s i o n of the Court looked at t h e a b s e n t e e b a l l o t s and t h a t i s why the record l i k e w i s e i s d e v o i d o f any e v i d e n c e o f any challenge to how a person voted absentee. The v o t e r s that v o t e d on s i t e w e r e a l l c a l l e d t o t e s t i f y l i v e and w e r e r e q u i r e d u n d e r s t a t u t e t o s t a t e how t h e y v o t e d . Code o f A l a b a m a § 1 7 - 1 6 - 4 2 . " 6 (Wolff's brief, Fluker's court's appears p. 15.) trial counsel attribution of votes that trial counsel did not object to to absentee v o t e r s . stipulated Nothing in the record indicates submitted to the c i r c u i t c o u r t a t a b l e v o t i n g by a b s e n t e e b a l l o t s v o t e d . 6 20 that the circuit Instead, the i t absentee that the parties o f how the voters 1081708 ballots and i n question Wolff. reverse I t i s well a presented had been trial 2005). offer the appellate Fluker that judgment Additionally, Parker should attributed this based Court on t o how court not arguments not i t i s the appellant's a record v. W i l l i a m s , have amended certain absentee w o u l d h a v e h a d t o show t h a t was i n error. court erred ballots Accordingly, 977 sufficient So. 2d the record ballots and t o argues that d i s q u a l i f y i n g two v o t e s were we cannot burden to to support 476 on a p p e a l cast. the s t i p u l a t i o n in i t s attribution to Fluker Fluker Fluker will R u l e 1 0 , A l a . R. A p p . P., t o i n c l u d e t h e p u r p o r t e d as to L l o y d N o l a n d H o s p . v . D u r h a m , 906 S o . 2 d 157 (Ala. reversal. settled court's to i t . correctly ( A l a . 2007). pursuant of the votes cast Then, Fluker the by votes circuit absentee Wolff. the circuit court erred in a t t r i b u t e d t o F l u k e r on t h e b a s i s that t h o s e v o t e r s ' names w e r e n o t on t h e s e c r e t a r y o f s t a t e ' s list. Fluker argues that the c i r c u i t upon t h e C i t y ' s was e l i g i b l e list to vote to stipulation as t o t h o s e say that a court of r e g i s t e r e d voters i n the runoff 21 should have voter relied i n determining election. who 1081708 At at the outset, times we different counties; election that may residency note from a voter's differ, that municipal elections held eligibility e.g., by to vote concerning i n the m u n i c i p a l i t y p r i o r e l e c t i o n s are held length the State in a municipal of the voter's t o t h e e l e c t i o n ; and the p h y s i c a l l o c a t i o n of the p r e c i n c t a t which the v o t e r may b e d i f f e r e n t f o r a m u n i c i p a l govern municipal Ala. Code 1 9 7 5 . special, in the elections that votes e l e c t i o n . The p r o v i s i o n s that e l e c t i o n s a r e s e t o u t a t § 11-46-1 e t s e q . , Title and g e n e r a l event and of applies. 17 o f t h e A l a b a m a C o d e g o v e r n s elections. a conflict, 7 In Section the response primary, 17-1-1 p r o v i d e s law governing to the f e d e r a l that municipal legislation entitled the "Help America Vote A c t , " the Alabama L e g i s l a t u r e amended i t s election 1975, laws, w h i c h now p r o v i d e s registration list including that i s t o be § 17-4-33, A l a . Code a computerized statewide maintained by the voter- secretary of state. Section 17-4-33 p r o v i d e s , i n pertinent part, as f o l l o w s : S e c t i o n 1 7 - 1 - 1 , A l a . Code 1 9 7 5 , p r o v i d e s i n pertinent p a r t : " A l l o f t h e p r o v i s i o n s o f t h i s t i t l e s h a l l a p p l y t o ... e l e c t i o n s b y ... m u n i c i p a l i t i e s h e l d i n t h i s s t a t e , e x c e p t i n cases where t h e p r o v i s i o n s of t h i s t i t l e a r e i n c o n s i s t e n t o r in conflict with the p r o v i s i o n s of a law governing ... municipal elections." 7 22 1081708 "The S t a t e of Alabama s h a l l p r o v i d e , through the Secretary of State, a nondiscriminatory, single, uniform, official, centralized, interactive computerized statewide voter registration list defined, maintained, and administered by t h e Secretary of State, with advice from the Voter Registration A d v i s o r y Board and t h e P r e s i d e n t o f the Alabama Probate Judges Association, which c o n t a i n s t h e name a n d r e g i s t r a t i o n i n f o r m a t i o n o f every l e g a l l y r e g i s t e r e d v o t e r i n t h e s t a t e . The computerized l i s t s h a l l comply w i t h t h e f o l l o w i n g requirements: "(9) I t s h a l l s e r v e as t h e o f f i c i a l voter r e g i s t r a t i o n l i s t f o rthe conduct of all elections." Section 11-46-36 provides: "(a) The mayor o r o t h e r c h i e f e x e c u t i v e o f f i c e r o f t h e c i t y o r t o w n s h a l l c a u s e t o b e made a l i s t o f t h e q u a l i f i e d v o t e r s who r e s i d e w i t h i n t h e c o r p o r a t e l i m i t s o f s u c h c i t y o r t o w n a n d who a r e r e g i s t e r e d to vote regular ballots, dividing t h e same into separate a l p h a b e t i c a l l i s t s of the q u a l i f i e d voters of each ward where such c i t y o r town has been d i v i d e d i n t o wards and a l l q u a l i f i e d v o t e r s t h e r e o f v o t e a t one b o x o r v o t i n g m a c h i n e , o r d i v i d i n g s u c h list into separate alphabetical lists of voters a u t h o r i z e d t o vote at each r e s p e c t i v e box or v o t i n g machine i f t h e l i s t o f q u a l i f i e d v o t e r s has been d i v i d e d a l p h a b e t i c a l l y and each a l p h a b e t i c a l group a s s i g n e d a b o x o r m a c h i n e a t w h i c h t o v o t e . He s h a l l have such l i s t s compared w i t h t h e o f f i c i a l l i s t o f e l e c t o r s q u a l i f i e d to vote during the current year on f i l e i n t h e p r o b a t e o f f i c e o f t h e c o u n t y i n w h i c h t h e m u n i c i p a l i t y i s s i t u a t e d a n d s h a l l c e r t i f y on each l i s t prepared pursuant t o t h i s s e c t i o n that i t i s a c o r r e c t l i s t o f t h e v o t e r s who a r e q u a l i f i e d t o vote regular ballots i n t h e m u n i c i p a l i t y , ward, 23 1081708 ballot box, or voting machine to which i t appertains. He shall have full access to a l l r e g i s t r a t i o n l i s t s of the c o u n t y f o r t h i s p u r p o s e . A c o p y o f e a c h l i s t so p r e p a r e d s h a l l be f i l e d w i t h t h e m u n i c i p a l c l e r k , who s h a l l f i l e and r e t a i n e a c h s u c h l i s t as a p u b l i c r e c o r d i n h i s o f f i c e , on or b e f o r e the t h i r d Tuesday i n J u l y b e f o r e a regular m u n i c i p a l e l e c t i o n . The c l e r k s h a l l prepare a copy of the l i s t of q u a l i f i e d v o t e r s a u t h o r i z e d to vote at each of the respective p o l l i n g places in the m u n i c i p a l i t y , and, p r i o r t o the o p e n i n g of the p o l l s on e l e c t i o n d a y , he s h a l l f u r n i s h t o t h e inspectors, o r one o f t h e m , o f e a c h b a l l o t b o x o r v o t i n g m a c h i n e at each p o l l i n g place a copy of the list of q u a l i f i e d voters authorized to v o t e at the box or voting machine for which he was appointed an i n s p e c t o r . The c l e r k s h a l l a l s o p u b l i s h t h e l i s t o f q u a l i f i e d voters authorized to v o t e at the ensuing e l e c t i o n a t l e a s t f i v e d a y s p r i o r t o t h e e l e c t i o n by posting copies thereof i n at least three public p l a c e s i n the municipality." It is well settled that in determining legislative intent: of "Our i n q u i r y i s g o v e r n e d by statutory construction: settled principles "'"The f u n d a m e n t a l r u l e o f statutory construction i s that t h i s Court is to a s c e r t a i n and effectuate the legislative i n t e n t as e x p r e s s e d i n t h e s t a t u t e . L e a g u e o f Women V o t e r s v . R e n f r o , 292 A l a . 128, 290 So. 2d 167 (1974). In this a s c e r t a i n m e n t , we m u s t l o o k t o t h e e n t i r e Act i n s t e a d of i s o l a t e d p h r a s e s or c l a u s e s ; O p i n i o n o f t h e J u s t i c e s , 264 A l a . 176, 85 So. 2d 391 (1956)."'" 24 1081708 Bright City v. Calhoun, of Bessemer 2006), quoting 988 So. 2d v. M c C l a i n , i n turn 957 Darks Comm'n, 367 S o . 2 d 1 3 7 8 , 1380 To look determine 492, legislative i s unambiguous, construction. 2001). Ex p a r t e between municipal-election election creates laws o r more 11-46-38. t o 10 unless have Alabama (emphasis i s no 827 So. states Court the must manner statutory that room judicial 2d that provisions first conclude of i n which for 789, the 794 ( A l a . i n the event of general-election the Dairy omitted)). I f , g i v i n g the there statutes also support m u n i c i p a l i t i e s create who 1074-75 ( A l a . I n c . v. the (quoting laws the a and the municipal- municipality list. election that persons days control 1061, m e a n i n g , we Waddail, laws, i t svoter Other intent then the 2d intent, B e c a u s e § 17-1-1 e x p r e s s l y conflict ( A l a . 2008) ( A l a . 1979) to the language of the s t a t u t e . language up So. Dairy, l a n g u a g e i t s p l a i n and o r d i n a r y a 497 been residents are e l i g i b l e Although days b e f o r e persons their of to vote i n municipal list. Only f o r 30 elections. § to r e g i s t e r to vote as p r o v i d e d the p e r s o n has been a r e s i d e n t 25 own v o t e r the m u n i c i p a l i t y can c o n t i n u e the e l e c t i o n the l e g i s l a t u r e ' s in § 17-3-50, of the m u n i c i p a l i t y f o r 1081708 30 or more election. expand days, or she Additionally, their through limits he corporate -187, and through alteration may a vote municipalities limits through municipalities de-annexation, of not §§ municipal annexation, can reduce corporate and §§ their 11-42-200 t h r o u g h municipality's limits the have the a u t h o r i t y to eligible voters in a municipal election, of i t s c o r p o r a t e in 11-42-1 corporate -213. limits the The affects determination is peculiarly within a municipality's control. In accordance secretary of The that board system l i n k e d the language state maintains voters. the with testimony of a to the statewide presented registrars at the i n every form, and in determining primary, voting location special, of r e g i s t e r e d hearings has that voter's aids the and The or p r e c i n c t where 26 indicates a computer database i n fills elections. the The i f information computer i n what d i s t r i c t general the of r e g i s t r a r s determines i n t o the computer system. and list county i s then entered board 17-4-33, When a p o t e n t i a l v o t e r the board the p o t e n t i a l v o t e r i s e l i g i b l e , the § statewide v o t e r - r e g i s t r a t i o n the s e c r e t a r y of s t a t e ' s o f f i c e . out a r e g i s t r a t i o n of a voter system lives voter votes in secretary of 1081708 state relies upon update the l i s t . register vote i n each county for municipal provided e l e c t i o n s . C i t i z e n s wanting election who we i t s own circuit a reside Although creates by t h e c o u n t y b o a r d of r e g i s t r a r s , prepare list list court of registered i n s i d e the municipal agree with Fluker's in disqualifying secretary of state's voter l i s t . court's voter held list the court list, created genesis of relied from October on O c t o b e r City's list order, 7, but the were one information input discrepancy i s incongruous registered voters at the the two not day secretary by The two of votes f o r the to the c i r c u i t county unless time 27 the those voter of two City's state's names w e r e However, board of election the secretary state's City say that a secretary earlier. the w e r e n o t i n c l u d e d on voters' on each that 2008, and t h e r u n o f f 2008. they just 6, for cannot According upon Using limits. argument reason that the persons c a s t i n g the votes to municipal voters o f r e g i s t e r e d v o t e r s , we erred and c o u n t y do n o t must r e g i s t e r w i t h t h e c o u n t y b o a r d o f r e g i s t r a r s . officials the to maintain Municipalitiesin a particular voters the l i s t the the board of on t h e state's because list is registrars, voters list was was (1) the the this were printed 1081708 (presumably at registering some to vote f o r whatever list of voters before the was after i n the runoff had, 6, 2 0 0 8 , point reason, election), been deleted or example (1) a b o v e that i s no evidence make to be t r u e , two voters election person such i t would based including a runoff to vote indicated that the maintained by registrars enter municipal election the less than municipality with the l i s t statewide of October that i n that board of held, t h e argument deleted, to Fluker nor does 10 vote days election. state's 28 (2) because the i n this I t i s clear that prior The a t o an voter testimony list i s o f r e g i s t r a r s and t h a t the on the the voter voter. board determines When provides of registered voters and t h e m u n i c i p a l i t y on supports e l e c t i o n , even though t h a t information is names to the City's to l e g a l l y cutoff. secretary the county for i f we a s s u m e e x a m p l e be i n e l i g i b l e t h e 10-day w o u l d be i n e l i g i b l e precincts, wrongfully and even can r e g i s t e r to vote election, the supporting b e o f no b e n e f i t still on from somehow a d d e d less had been argument, would b u t whose i n the record a t a l l , much t h e two v o t e r s Fluker cutoff (2) a c t u a l l y r e g i s t e r e d t o v o t e day o f t h e e l e c t i o n and were There 10-day the secretary of state's l i s t created, list. the a the i n the various who among those 1081708 voters resides record the before that thec i r c u i t voter list on t h e l i s t . argues to vary that thecircuit and c o n s e r v a t o r s h i p , H.M., w h o s e v o t e Fluker. Fluker argues that H.M. indication of mental counsel; the t h e ground ground that witness voted also that to exclude based nothing i s mentally t h e same on i n c a p a c i t y . was m e n t a l l y person who may h a v e b e e n and submitted The only of Wolff's letters of i n t o e v i d e n c e s t a t e o n l y t h a t H.M. i s H.M. witnessed Wolff was a t t r i b u t e d t o incompetent. papers vote i n c l u d i n g t h a t he i n the papers At the hearing, Wolff that the absentee incapacity i sthe allegation admitted "incapacitated." Fluker papers, and l e t t e r s o f a n d H.M.'s v o t e guardianship conservatorship we c a n n o t s a y e r r e d b y r e l y i n g on on s e v e r a l g r o u n d s , incompetent, indicates on was e x c l u d e d H.M.'s v o t e mentally the City's t h e two v o t e s court guardianship was on t h e basis. and p r o t e c t i v e proceeding challenged from Accordingly, guardianship of Based t o be a n y r e a s o n f o r court erred i n excluding on t h a t Fluker limits. does n o t appear of state's a s t o t h e names challenges the municipal us, there secretary list within who s i g n e d the signatures challenged incompetent, on t h e H.M.'s a f f i d a v i t of other i n c a p a c i t a t e d a n d whose 29 H.M.'s v o t e persons as a who c a p a c i t y was 1081708 questioned, a n d on t h e ground reasons f o r v o t i n g by absentee. Wolff presented that conservatorship which were Fluker's court, that into by by a guardian In h i sb r i e f , incompetency should Fluker's t r i a l inconsistent reasons on h i s a n d on h i s a f f i d a v i t . vote on t h e ground trial or to papers regarding review. (Ala. 1985)(a on t h e p a p e r s incapacity See D a v i s party 30 The circuit he was and l e t t e r s was any e r r o r not to prevent of of proof or Wolff's v. Southland seeking application that sufficiency as s e t o u t i n t h e l e t t e r s , court's reliance on t h e c o u n s e l d i d not o b j e c t t o of the guardianship at ballot counsel n o t be d i s q u a l i f i e d H.M.'s conservatorship H.M. h a d on h i s a p p l i c a t i o n f o r an a b s e n t e e Because F l u k e r ' s t r i a l admission and t h a t ballot excluded incompetent. 397 objection was r e p r e s e n t e d an a b s e n t e e appellate a l l of on t h e g r o u n d s t h a t he gave statements without of c h a l l e n g e d H.M.'s v o t e ground circuit letters counsel t h a t H.M.'s b a l l o t the and to the circuit on h i s a f f i d a v i t . court evidence In a brief argued for papers submitted i n c o n s i s t e n t reasons and inconsistent f o r H.M. a l o n g w i t h H.M.'s a f f i d a v i t , counsel. Wolff's H.M. had In support of t h i s challenge, guardianship admitted trial H.M. i n the counsel's preserved Corp., of for 465 So. 2 d the admission of 1081708 e v i d e n c e must o b j e c t the failure t othe offering t o object Next, Fluker attrial of Specifically, Fluker disqualifying the vote ground the challenge, Wolff claimed homestead contestant, was illegally (Ala. have cast. failed (Ala. t o make cast."). fixed, cast. t o do. case, without court erred i n the City. her vote on In support outside the City. the of his As 913 S o . 2 d 1 0 8 3 , a prima Wolff ofa party facie the words, Fluker See H a r r i s v . M c K e n z i e , domicile that the then place intention 31 hadt o present h e r home, which 703 So. 2d 309, i n determining i sthat any present showing e v i d e n c e i n d i c a t i n g t h a t W.M.H.'s In other that, 1089 seeking t o d i d so, andthe burden o f W.M.H.'s i n t e n t t o make t h e C i t y 1997)(holding election challenged Waltman v . R o w e l l , s h i f t e d t o Fluker t opresent he voters. W.M.H.'s a b s e n t e e v o t e w a s i s the r e s p o n s i b i l i t y v o t e was i l l e g a l l y evidence several i ni t s e v i d e n c e i n d i c a t i n g t h a t W.M.H. h a d exemption excluded v o t e was l e g a l l y erred h a d t h e b u r d e n o f s h o w i n g t h a t W.M.H.'s v o t e 2005)("[I]t a vote outside court of because objection). thecircuit and Wolff presented Wolff that o f W.M.H. sher e s i d e d a that domicile argues to Fluker, that waives contends that the c i r c u i t determination attributed of that evidence domicile 313 i n an i n which h a b i t a t i o ni s of removing). 1081708 Next, Fluker determination because, of that Fluker because C.T. residency C.T. L.T. challenged claimed stepson's intent counsel Accordingly, L.T.'s t e s t i m o n y a reviewing time on (Ala. court as to reside failed we E.T.'s, to consider appeal. CSX Transp., J.C.'s outside votes address presented the Fluker argues that son's, L.T.'s whether the the City, However, to constituted error. cannot consider and husband's, object J.C., reside i nthe Wolff i n the City. to cannot her and a t t h e same On a p p e a l , in i t s i n accepting intent to to the challenge, testify erred E.T., erred as r e s i d i n g o f L . T . , C.T.'s w i f e . not C.T., court C.T.'s, court a homestead exemption In response could trial of the c i r c u i t E.T. a n d J . C . w e r e l i s t e d testimony the and Fluker's testimony. admission I t i s well settled of that a r g u m e n t s made f o r t h e f i r s t I n c . v. Day, 613 So. 2d 883 1993). Fluker argues that the a l l o w i n g T.M.'s v o t e t o s t a n d , timely register person during for the c i r c u i t o f L.T. as t o t h o s e v o t e r s ' City. as the he a r g u e s , testimony and argues Fluker. to vote. the runoff On circuit court erred i n not on t h e g r o u n d t h a t T.M. T.M. testified election. He cross-examination, 32 that stated T.M. he that testified d i d not voted he in voted that he 1081708 registered if to vote on a S u n d a y , b u t t h a t he d i d n o t r e m e m b e r he r e g i s t e r e d on S e p t e m b e r 2 1 , 2008, o r S e p t e m b e r 28, 2008. Board of registrar testified that members T.M.'s entered there 26, 2008, into was election, exclude T.M.'s than say that vote September evidence more we c a n n o t was as 10 plainly 628 S o . 2 d a t 534 findings of fact standard used by a p p e l l a t e c o u r t s nonjury ore tenus findings and case those not supported argues testimony 21, whether days before court's and p a l p a b l y ("In r e v i e w i n g election Because T.M. the decision to wrong. the t r i a l c o n t e s t , we a p p l y when the t r i a l that i s , we will findings areplainly was runoff See court's t h e same court a m a t e r i a l part of the evidence testimony; unless Fluker the has taken September 29, 2008. to the c i r c u i t Willams, i n this dated Brock T.M.'s name was n o t o f f i c i a l l y t h e computer u n t i l to vote was and Paula " s i g n e d o f f " on t h e a p p l i c a t i o n o n but that conflicting registered Chapman application 2008, a n d t h a t an e m p l o y e e September Patsy i na through not disturb those and p a l p a b l y wrong by t h e e v i d e n c e . " ) . that the c i r c u i t of a handwriting 33 expert court erred i n allowing to disqualify 18 v o t e s 1081708 cast f o r him by argues that, absentee i n order t o make t h e r e must be e v i d e n c e out i n Rule At 44(j), trial, Wolff the persons affidavit excluded Specifically, 8 a comparison o f a t r u e and genuine presented expert. signed by t h e c i r c u i t Roper court were signatures writings the from original that he testimony that he any o f t h e v o t e r s ; the person handwriting should their 18 votes t o F l u k e r and trial the grounds on Fluker's that give d i d not o r make t h e take any sample a n d t h a t he d i d n o t e x a m i n e Fluker's contesting trial counsel the b a l l o t s the testimony on also argued the ground The c i r c u i t c o u r t a l l o w e d f o u r of t h e votes the b a s i s of Roper's testimony t o stand. 8 on of the voters of are d i s q u a l i f i e d . votes take absentee and The attributed any o f t h e v o t e r s examined; documents. to vote count. Richard indicated that of the a p p l i c a t i o n . to Roper's d i d not observe o f Dr. Roper's testimony the application i n support objected handwriting, s i g n a t u r e as s e t the testimony u l t i m a t e l y deducted from h i s t o t a l vote counsel of Fluker A l a . R. C i v . P. Roper, a h a n d w r i t i n g different voters. 34 before challenged 1081708 Section "manually" Section 17-11-4 sets determine whether affidavit and that that an absentee sign h i s a p p l i c a t i o n to vote 17-11-10 witnessed provides out the § 17-11-4 a by absentee procedure absentee whether the voter's the voter notary ballot. or or two s i g n a t u r e on t h e a f f i d a v i t . require marked an a b s e n t e e and rule affidavit. construction is legislature. I f the language then there to The 1 0 i s no clearly Taylor room expressed effect. presented expert give on Cox, 710 testimony the to the the of voter ballot statutory intent of the of the s t a t u t e i s unambiguous, for judicial of the a p p l i c a t i o n s of these signatures effect intent v. first to It i s clear by absentee her 9 witnesses to sign both h i s or her a p p l i c a t i o n to vote h i s or must for officials signed public and § 17-11-10 e a c h voter construction, the l e g i s l a t u r e So. 2d indicating 40 6 i s t o be ( A l a . 1998 ) . that the given Wolff the signatures 18 a b s e n t e e v o t e r s d i f f e r e d supporting and affidavits. on from the Once Wolff " [ I ] f he o r s h e s i g n s b y m a r k , t h e name o f t h e w i t n e s s h i s o r h e r s i g n a t u r e s h a l l be s i g n e d t h e r e o n . " § 1 7 - 1 1 - 4 . 9 to The information required on t h e a f f i d a v i t i s : residence i n f o r m a t i o n and b i r t h d a t e ; (2) t h e r e a s o n v o t i n g by a b s e n t e e b a l l o t ; (3) t h e v o t e r ' s o a t h t h a t i n f o r m a t i o n i s c o r r e c t ; a n d (4) t h e v o t e r ' s s i g n a t u r e required witnessing. 1 0 35 (1) for the and 1081708 presented evidence have p r e s e n t e d as evidence the testimony conditions that the signatures d i f f e r e d , to rebut of the voters that might have the expert's or testimony impacted counsel testimony. failed to present i t sdiscretion Fluker's tally a apply handwriting both based on t h e h a n d w r i t i n g had case, of two to be and of a s i n g l e handwriting, to rebut handwritings, signed by an the exemplar of expert's where, same from testimony. analysis, case by concern law, person. then Rule signature both I f the t h a t t h e same p e r s o n the voter's court 4 4 , A l a . R. C i v . P., i n this and t h e a f f i d a v i t , the t h e 18 v o t e s handwriting and t h e f a c t s expert had determined the application apply i n disqualifying the v a l i d i t y i n this comparison documents health However, F l u k e r ' s any e v i d e n c e t h a t i t does n o t appear t h a t Rule which concerns would regarding such A c c o r d i n g l y , we c a n n o t s a y t h a t t h e c i r c u i t 1 1 exceeded We n o t e could testimony, the voter's a s F l u k e r ' s a p p e l l a t e c o u n s e l now s u g g e s t s . trial Fluker 44 signed would would be Although Fluker's trial counsel objected to the h a n d w r i t i n g e x p e r t ' s t e s t i m o n y on t h e g r o u n d s s e t o u t a b o v e , i t a p p e a r s t h a t t r i a l c o u n s e l d i d n o t know t h a t a h a n d w r i t i n g e x p e r t w o u l d be t e s t i f y i n g . However, F l u k e r ' s t r i a l counsel d i d n o t o b j e c t t o t h e t e s t i m o n y on t h e g r o u n d t h a t W o l f f was presenting a surprise witness. 1 1 36 1081708 n e c e s s a r y t o c o m p a r e i t w i t h t h e s i g n a t u r e s on t h e a p p l i c a t i o n and affidavit. Conclusion We circuit judgment have reviewed court's the record, a n d we d e c i s i o n was p l a i n l y cannot say that and p a l p a b l y wrong. the The i s affirmed. AFFIRMED. Lyons, JJ., Stuart, Smith, Bolin, Parker, concur. Woodall, J . , concurs specially. Cobb, C . J . , r e c u s e s h e r s e l f . 37 Murdock, and Shaw, 1081708 WOODALL, J u s t i c e I concur point out court's fully another judgment It is (concurring i n the factor i s due i s t r u e , as no evidence submitted majority that to Fluker that ballots" and the evidence] only that their ballots." Court cannot "charts question votes, evidence considered evidence court's (Ala. of by considered judgment." 3d trial "when the was Parker n.6. by the at trial there Williams, 2007). 38 parties how the However, the absentee Larry [absentee] [provided voters cast Therefore, this allocation record court, the parties 35-36. sufficient v. the court's the trial that examined how brief, the the summarizing at submitted exactly because court parties Fluker's absentee the So. "the to that opinion, indicating trial voted. that only affirmed. record the I write i n d i c a t e s t o me t o be the absentee voters admits opinion. s t a t e d i n the m a j o r i t y in charts specially). is of silent we support as must presume to 977 So. 2d the the 476, to that trial 482

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