Nickelson v. Whitehorn

375 So.3d 1132

55,730 (La.App. 2 Cir. 12/12/23)

John NICKELSON, Plaintiff-Appellee,

v.Henry WHITEHORN and R. Kyle Ardoin, in His Official Capacity as Louisiana Secretary of State, Defendants-Appellants.

No. 55,730-CA

Court of Appeal of Louisiana, Second Circuit.

Judgment Rendered December 12, 2023

Appealed from the First Judicial District Court for the Parish of Caddo, Louisiana, Trial Court No. 647,419, Honorable E. Joseph Bleich (Ad Hoc), Judge

LAW OFFICES OF GRAY SEXTON By: R. Gray Sexton, Baton Rouge, Laura Blair Naquin Green, Counsel for Appellant

CARL HENRY FRANKLIN COOK, YANCY, KING, & GALLOWAY By: Brian Allen Homza, David Jonathan Hemken, Shreveport, Counsel for Appellee, John C. Nickelson

STERNBERG, NACCARI & WHITE, LLC By: Scott L. Sternberg, New Orleans, CHARLTON JOSEPH MEGINLEY State of Louisiana, Secretary of State, Counsel for Appellee, R. Kyle Ardoin, Secretary of State

Before STONE, COX, ROBINSON, HUNTER, and MARCOTTE, JJ.

ROBINSON, J.

₁This appeal concerns an election contest arising from the runoff election for the office of Caddo Parish Sheriff. Henry Whitehorn appeals the judgment of the trial court ordering a new election for the office of Caddo Parish Sheriff. For the following reasons, we affirm the judgment of the trial court.

FACTS

On November 18, 2023, a runoff election for the office of Sheriff of Caddo Parish was held between candidates John Nickelson ("Nickelson") and Henry Whitehorn ("Whitehorn"). A margin of one vote decided the election in favor of Whitehorn. Unofficial counts showed that of the total 43,241 votes, Whitehorn received 21,621 votes while Nickelson received 21,620. On November 27, 2023, a recount by the Caddo Parish Board of Election Supervisors ("Board") occurred. Of the 7,781 absentee-by-mail ballots, the number of accepted mail ballots increased by six (three for each candidate), but the one-vote margin remained the same.

On November 7, 2023, Nickelson instituted the present election contest under La. R.S. 18:1401(B), naming as defendants Whitehorn and R. Kyle Ardoin in his official capacity as the Louisiana Secretary of State.¹ Nickelson ₂alleged that irregularities existed in the in-person and absentee-by-mail ballots.² Nickelson asserted that these irregularities are significant, which given the one-vote margin, directly affected the outcome of the election. Specifically, regarding in-person voting, Nickelson alleged two instances of double voting and that four ineligible fully interdicted individuals voted in the election.³ Nickelson also requested judicial review of 51 duplicate absentee-by-mail ballots with distinguishing marks or other features susceptible of identification on grounds that they were not properly adjudicated. Nickelson argued that the complained-of conduct is consequential and could have affected the outcome of the election. He prayed in part for the declaration of a winner by the trial court or that a new election be called.

Whitehorn filed an opposition to Nickelson’s petition, arguing that he indisputably won the election for Sheriff because no timely challenges to the ballots had been raised and thus the recount ultimately confirmed his victory.

Procedural History

₃The trial commenced on November 30, 2023, and the matter was submitted on briefs on December 4, 2023.⁴ Five witnesses testified (three for Nickelson and two for Whitehorn), and through their testimony, 12 exhibits were introduced into evidence.

Sherri Hadskey, the Commissioner of Elections in the Louisiana Secretary of State’s Office, confirmed that two individuals voted twice, one in early voting and one by mail-in ballot, but both on the day of the election. Hadskey stated that there was no way to know whom these individuals voted for. Plaintiff's Exhibit A, introduced into evidence, documented the allegations that two individuals voted twice.

Whitehorn’s Exhibit A, also introduced into evidence, showed that one of these voters voted in person because "it was not showing in the register that his absentee ballot was received." The exhibit showed that a commissioner spoke with an individual at the registrar of voter’s office who informed the commissioner that "she will pull his absentee mail in ballot."⁵ Hadskey could not confirm whether this in fact occurred and was not aware of any ₄timely complaint regarding the mail-in ballots. She did not know how anyone voted.⁶

Caddo Parish Clerk of Court Mike Spence confirmed that four fully interdicted individuals voted in the election. He stated that it would take very little time to "pull these four records together." He also testified that the records of interdiction would have been available long before the election. Spence confirmed that neither candidate sought the records of interdiction prior to the date they were certified by Spence on November 28, 2023, and received by Nickelson. Plaintiff's Exhibits C-F and H documented Spence’s testimony.⁷

The Caddo Parish Registrar of Voters, Dale Sibley, testified regarding the absentee-by-mail ballot allegations. Sibley went through multiple "redacted" ballots and confirmed that "some," "five to seven" of the accepted ballots had no witness signature and "just slipped through the cracks." He noted that such ballots are normally rejected. Sibley testified that fully interdicted individuals should be purged from the voter list. Sibley had "never seen ₅a single interdiction," and stated that the "only way we would know is if we are notified that there has been an interdiction." He testified that he did not believe that the mail-in ballots could be reviewed prior to the election (before the board counting), but noted that he "could be corrected."

Brenda Traylor, the governor’s appointee to the Board, oversaw the opening of the absentee ballots. She confirmed that she received no written challenges to the absentee or mail-in ballots.

R.J. Johnson, a four-year member of the Board, testified that Nickelson chose not to avail himself of the opportunity to be present at the verification, preparation, and counting process for absentee-by-mail and early voting ballots. Johnson confirmed that the time and date of that process was posted and that there would be a record of any challenge made by a candidate or his representative because the challenger would fill out a form stating the challenge.

At the conclusion of the one-day trial, the trial court requested post-trial briefs and took the matter under advisement. In his post-trial brief, Nickelson argued that the testimony and evidence clearly established double voting by two individuals, voting by four fully interdicted individuals, and multiple irregularities in mail-in ballots sufficient to ₆require a new election for Caddo Parish Sheriff.⁸ Notably, Nickelson challenged Whitehorn’s argument that he waived any objection to the ballots or votes on grounds that the law does not require objections to matters that could not have been reasonably objected to through the exercise of due diligence.

In his post-trial brief, Whitehorn argued that Nickelson’s failure to challenge mail-in ballots or voter qualifications either before the election or on election day, as required by La. R.S. 18:1434 and 18:1315, waived his right to do so under La. R.S. 18:1434. Whitehorn contended that had the objections been made, the issues could have been resolved before the election, rather than in a subsequent judicial challenge. Whitehorn also asserted that Nickelson failed to establish that any of the voters voted in the sheriff's race, pointing out that 120 of the adjudicated ballots omitted a vote for either candidate for sheriff, and therefore had not presented evidence "sufficient to change the result of the election."

On December 5, 2023, the trial court issued a written opinion and judgment voiding the November 18, 2023, election for the office of Caddo Parish Sheriff and ordering a new runoff election between Nickelson and Whitehorn. As it ₇relates to the merits of this matter, the trial court accepted the testimony of Hadskey, Spence, and Sibley to find that two individuals had double voted, four ineligible fully interdicted persons cast ballots in the election, and that at least five accepted mail-in ballots should have been excluded from the election count. Regarding the double votes, the trial court specifically found that, even with due diligence, Nickelson would not have known to challenge the mail-in or early voting ballots before the election because the double voting did not occur until election day. Likewise, the trial court determined that Nickelson would not have known that the ineligible interdicted individuals were going to vote, "precluding them from knowing the interdiction records would need to be obtained." Finally, relying on the testimony of Sibley that Nickelson could not have reviewed the mail-in ballots, the trial court found that Nickelson had not waived any challenge to these ballots and invalidated five of those improperly counted votes which the trial court had reviewed.

Specifically, the trial court ruled:

[A]s to the alleged failure of the plaintiffs to attack those votes before they were cast, Plaintiff could not have known, days before the election, who would attempt to vote on election day. Plaintiff could not have known, days before the election, that persons would be improperly attempting to vote. In that there could have been no evidence reviewed, nor made available, before the eleven so-called subject "votes" were cast, to require such review and objection prior to ₈the date of voting is totally illogical. That so-called eleven "votes" referenced herein which are at issue, and which were counted, were actually never votes at all. These were void ab initio.

….

It defies logic in this particular case to conclude that it is possible to determine the accurate results of the runoff election, especially considering the one-vote margin. Just one illegal vote could have affected the outcome, and here, multiple illegal votes were cast

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