Board of Elections shouldn’t have hired second attorney to defend use of paper ballots, ACC Commission says

The ACC Board of Elections did not have the authority to hire a second attorney to help defend their use of paper ballots during early voting last month. That’s according to ACC Attorney Judd Drake, who originally counseled board members against the switch to paper ballots, saying it would be a violation of state law.

The State Elections Board came to the same conclusion, ordering Athens to use the new state-approved voting machines instead of paper ballots in a hearing on March 11 that resembled a trial. Drake would normally have represented Athens in cases like this, but since he had already publicly stated his legal opinion in opposition to the Board of Elections’ action, he chose to recuse himself. Instead, he appointed Attorney Thomas Mitchell, who is an expert in local government issues.

The Board of Elections also hired a second attorney, Bryan Sells, but did so without the approval of the commission and without a legally-binding contract, according to Drake.

That means that the Board of Elections may have broken the law twice: once in the switch to paper ballots, and a second time by hiring Sells.

Michell's legal bill
Attorney Thomas Mitchell’s legal bill
Sell's legal bill
Attorney Bryan Sells’ legal bill

Sells and Mitchell are now billing the local government for a total of $41,633 ($23,618 for Sells and $18,015 for Mitchell). These bills include travel to and from Athens, legal research, preparation for the hearing and multiple phone conversations with Board of Elections Chairman Jesse Evans. It also includes $4,475 in fees coming after the hearing on March 11 had ended; their services were retained through April 1.

“A Terrible Precedent”

On Tuesday, the Mayor and Commission reluctantly agreed to pay these attorney fees accrued by the Board of Elections, which will come out of the county’s general contingency fund. This passed in a 9-1 vote.

Commissioner Jerry NeSmith was the lone ‘no’ vote, saying it “would be a terrible precedent.”

Despite their votes, other commissioners had serious reservations about the expense as well. Commissioner Tim Denson agreed with NeSmith, saying the Board of Elections didn’t “have the authority to spend taxpayer dollars.” Commissioner Russell Edwards blasted the decision not only to hire Sells, but also to switch to paper ballots, saying, “blowing up the entire system” was the “wrong move.”

Jesse Evans, Chair of the ACC Board of Elections
BOE Chairman Jesse Evans

Evans defended his vote to switch to paper ballots in a comment to APN, citing the concerns of several Athens residents who have spoken at Board of Elections meetings about the importance of securing the vote.

“We definitely did the right thing for our community,” said Evans. “Ballot secrecy is a fundamental aspect of our democracy. We are living up to our Oaths of Office, and we are continuing to do what is necessary to ensure free and fair elections in the community that we serve.”

Others have a different take. Director of Elections Charlotte Sosebee says that her office hadn’t received any complaints from citizens about ballot privacy as they were casting their votes. The Athens GOP has gone so far as to circulate a petition calling for Evan’s removal from the Board of Elections for “blatant interference in an ongoing Clarke County Election.”

Jesse Houle for ACC CommissionPaper ballots: still an option in an emergency

Despite the decision of the State Elections Board, paper ballots might still occasionally be used at Athens-Clarke county voting precincts in the election scheduled for May 19.

The local elections board recently passed a policy clarifying for poll workers that wait times longer than 30 minutes would be considered an emergency. In such a voting emergency, additional paper ballot voting stations could be opened if that would help reduce waiting times. Other emergencies allowing for paper ballots include power outages or voting machine malfunction. Use of these paper ballot stations could also help election staff include the required number of voting stations (i.e. one per 250 voters) in each precinct while still maintaining voter privacy.

The ACC Board of Elections has decided not to appeal the ruling of the state board which prevents the use of paper ballots generally.

COVID-19 Updates

At this same meeting, the mayor and commission ratified a decision by ACC Manager Blaine Williams to allow restaurants to sell beer and wine for takeout, suspending part of the Alcoholic Beverage Ordinance for the duration of the COVID-19 crisis. They also pushed the deadline for businesses to pay Occupation Tax and regulatory fees back to June 1, 2020. Likewise, Mayor Kelly Girtz was clear that there would be no eviction hearings in Athens until at least May 13.

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