[StBernard] Supreme Corut Ruling on District A Vote Challenge

[Westley Annis]

http://is.gd/103T1Q

RUPP v. SCHEDLER

PETER A. RUPP
v.
J. THOMAS "TOM" SCHEDLER, IN HIS OFFICIAL CAPACITY AS THE LOUISIANA
SECRETARY OF STATE, VELMA BOURG, IN HER OFFICIAL CAPACITY AS THE REGISTRAR
OF VOTERS FOR ST. BERNARD PARISH, RAY A. LAUGA, JR., IN HIS OFFICIAL
CAPACITY, AS A CANDIDATE FOR ST. BERNARD PARISH COUNCIL, DISTRICT "A"

No. 2011-CA-1716.

Court of Appeals of Louisiana, Fourth Circuit.


December 9, 2011.

Kurt C. Garcia, GARCIA LAW FIRM, 909 W. Esplanade Avenue, Suite 204, Kenner,
LA 70065.
Marion D. Floyd, 2214 Third Street, Suite A, Kenner, LA 70062, COUNSEL FOR
PLAINTIFF/APPELLANT/PETER A. RUPP.
James D. "Buddy" Caldwell, Attorney General, William P. Bryan, III,
Assistant Attorney General, Erin C. Day, Assistant Attorney General,
Department of Justice, Civil Division, P. O. Box 94005, Baton Rouge, LA
70804-9005, COUNSEL FOR VELMA BOURG, REGISTRAR OF VOTERS, ST. BERNARD
PARISH.
William E. Crawford, Jr., LOUISIANA DEPARTMENT OF STATE, 8585 Archives
Avenue, Twelve United Plaza, Baton Rouge, LA 70809, COUNSEL FOR J. THOMAS
"TOM" SCHEDLER, LOUISIANA SECRETARY OF STATE.
Richard A. Tonry, Michael C. Ginart, Jr., Cullen A. Tonry, Kim C. Jones,
Joyce D. Young, LAW OFFICE OF TONRY & GINART, LLC, 2114 Paris Road,
Chalmette, LA 70044-0032, COUNSEL FOR DEFENDANT/APPELLEE/RAY A. LAUGA, JR.
Court composed of Judge James F. McKay, III, Judge Dennis R. Bagneris, Sr.,
Judge Max N. Tobias, Jr., Judge Roland L. Belsome, Judge Daniel L. Dysart.
 
 
ROLAND L. BELSOME, Judge.
Appellant, Peter Rupp, an unsuccessful candidate for the St. Bernard Parish
Council District "A" requests review of the trial court's decision finding
the appellant's voter challenges were untimely pursuant to the Election Code
and dismissing appellant's Petition to Contest Election. For the following
reasons we affirm.
The issue that must be determined by this Court is whether there were timely
challenges made in accordance with the mandates of the Election Code. The
Election Code, Title 18 of the Louisiana Revised Statutes provides the
exclusive procedures by which elections may be challenged. Mr. Rupp's sole
basis for contesting the election is the qualifications of the voters as set
forth in La. R.S. 18:565(A)1. The forty-four voters that Mr. Rupp contended
were unqualified to vote in his race all voted during the early election
period of the general election. The Election Code specifically addresses
this type of challenge and the procedure to be followed when pursuing such a
claim. A candidate seeking to challenge an absentee by mail or early voting
ballot, may do so "by personally filing his written challenge with the
registrar no later than the fourth day before the election for which the
ballot is challenged." La. R.S. 18:1315(A)(1). The challenge must be
presented on the proper form which can be obtained from the Secretary of
State's office. Id. The statute further specifies that the form include:
(a) The ground, specified in R.S. 18:565(A), on which the challenge is made.
(b) The election involved.
(c) The specific reason for which the challenge is made.
(d) The name, address, and telephone number, if any, of the person
challenging the ballot, all of which shall be written by the person
challenging the vote.
La. R.S. 18:1315(A)(2).
At trial, Mr. Rupp testified that he did acquire and submit the form
mandated by La R.S. 18:1315, but not until November 21, 2011. Prior to that
time he asserts that on two separate occasions he attempted to challenge the
qualifications of the voters with the registrar of voters, Velma Bourg. He
claims he presented hand written notes with a list of names to the registrar
of voters, which he claims Ms. Bourg rejected. This is disputed by the
testimony of Ms. Bourg, who stated she had not seen the hand written
documents. She did acknowledge receiving an official challenge form on
November 21, 2011. At that time, Ms. Bourg advised Mr. Rupp that the form
should have been in her office four days prior to the election.
Under similar circumstances, courts have found that a candidate's failure to
follow the mandated procedure of the Election Code to raise concerns
regarding voting prior to or during the election resulted in a waiver. See,
Lipsey v. Dardenne, 07-1487 (La.App. 3 Cir. 11/29/07), 970 So.2d 1237; Davis
v. Malveaux, 06-2096 (La.App. 1 Cir. 10/24/06), 945 So.2d 70. Additionally,
La. R.S. 18:1434 states that:
An objection to the qualifications of a voter,..., or to an irregularity in
the conduct of the election, which with the exercise of due diligence could
have been raised by a challenge of the voter or objections at the polls to
the procedure, is deemed waived.
La. R.S. 18:1434.
After hearing the testimony and reviewing the evidence, the trial court
found the challenges were registered on November 21, 2011. These challenges
were found to be untimely and thus waived. This is a factual finding that
will not be disturbed unless it is manifestly erroneous or clearly wrong.
Rosell v. ESCO, 549 So.2d 840, 845 (La. 1989).
We find no error on the part of the trial court and therefore affirm.
AFFIRMED
TOBIAS, J., CONCURS IN THE RESULT.
I respectfully concur in the result because I do not find that the majority
has gone far enough to address all relevant issues in this case.
La. Const. art. I, § 101 is not superseded by La. Const. art. XI, §1,2 and,
accordingly, as long as an individual is a citizen of Louisiana and eighteen
years of age, an individual citizen must be allowed to determine where he or
she should vote because he or she has a meaningful relationship to the place
where he or she is registered to vote.
The concept of "permanent registration of voters" in La. Const. art. XI, § 1
is a term of art. The "permanent registration of voters" was originally set
forth in the former La. R.S. 18:231-261; following the adoption of the 1974
constitution, many of those statutes were spread throughout various sections
of the mandated new Louisiana Election Code, and others were repealed.3
Taking into account La. R.S. 18:193 G, 197, 565, 1313, 1315, and 1432, the
evidence in this case, including the proffered evidence, does not
demonstrate that the voters in question were disqualified from voting in the
St. Bernard Parish election. Putting aside the timeliness of Mr. Rupp's
objections as correctly analyzed by the majority, because someone filed for
a homestead exemption in a parish other than St. Bernard on a specific date
does not prove that the person did not thereafter change his domicile and
residence back to St. Bernard Parish by returning to St. Bernard Parish
after the date of filing for the homestead exemption. Moreover, I am not
convinced that La. R.S. 18:101 is not in part irreconcilably in conflict
with La. Const. art. I, § 10 (the constitutional provision undermines and/or
supersedes the statutory provision). Further, La. R.S. 18:101 does not stand
for the proposition that Mr. Rupp wins and is entitled to the relief he
seeks if he can show that a sufficient number of voters had a domicile in
another parish because those persons filed for a homestead exemption in
another parish. (After all, we do not know whether those alleged
non-domiciliaries voted for or against Mr. Rupp.)
Footnotes

1. La. R.S. 18:565(A) — Grounds for challenge. A commissioner, watcher, or
qualified voter may challenge a person applying to vote in a primary or
general election on the ground that:
(1) The applicant is not qualified to vote in the election,
(2) The applicant is not qualified to vote in the precinct, or
(3) The applicant is not the person whose name is shown on the precinct
register.
Back to Reference
1. Section 10 reads:
(A) Right to Vote. Every citizen of the state, upon reaching eighteen years
of age, shall have the right to register and vote, except that this right
may be suspended while a person is interdicted and judicially declared
mentally incompetent or is under an order of imprisonment for conviction of
a felony.
(B) Disqualification. The following persons shall not be permitted to
qualify as a candidate for elective public office or take public elective
office or appointment of honor, trust, or profit in this state:
(1) A person who has been convicted within this state of a felony and who
has exhausted all legal remedies, or who has been convicted under the laws
of any other state or of the United States or of any foreign government or
country of a crime which, if committed in this state, would be a felony and
who has exhausted all legal remedies and has not afterwards been pardoned
either by the governor of this state or by the officer of the state, nation,
government or country having such authority to pardon in the place where the
person was convicted and sentenced.
(2) A person actually under an order of imprisonment for conviction of a
felony.
(C) Exception. Notwithstanding the provisions of Paragraph (B) of this
Section, a person who desires to qualify as a candidate for or hold an
elective office, who has been convicted of a felony and who has served his
sentence, but has not been pardoned for such felony, shall be permitted to
qualify as a candidate for or hold such office if the date of his qualifying
for such office is more than fifteen years after the date of the completion
of his original sentence. [Emphasis supplied.]
Back to Reference
2. Section 1 states: "The legislature shall adopt an election code which
shall provide for permanent registration of voters and for the conduct of
all elections."
Back to Reference
3. See Dowling v. Orleans Parish Democratic Committee, 235 La. 62, 96, 102
So.2d 755 767 (1958), and the concordance tables for specific placement of
the relevant sections of the former law in the Louisiana Election Code