Get ready for another round

Judge's ruling sets up second vote on liquor by the drink
Jan. 10, 2013 @ 06:58 PM

Pigeon Forge voters will have to vote one more time on whether they want liquor by the drink to be legal in their city, and it will happen sometime in the next 45 to 60 days.

Chancellor Telford Forgety tossed the results of the Nov. 6 election Thursday after the Sevier County Election Commission acknowledged that poll workers at the Pigeon Forge City Hall voting precinct allowed 289 ineligible voters to cast ballots in the election, rendering the real outcome of the vote “incurably uncertain.”

The election commission instructed its attorney Wednesday to stipulate that it couldn’t account for those votes and that it couldn’t verify the outcome of the election, which it had certified in November with a result of 1,232 to 1,132. Because the number of illegal votes was greater than the margin of victory and there was no way to determine which way the illegal voters cast their ballots, Forgety said he had no choice but to toss the election.

“It is clear to the court that this election has to be set aside, must be voided, and that a new election must be ordered,” he said, later adding “The court finds the results of the election are without question incurably uncertain.”

He said there was no evidence of fraud, but ample evidence of errors by election workers that led to the illegal votes.

Concerned Churches and Citizens of Pigeon Forge, the group that campaigned against the referendum, filed the contest of election after learning that there were about 300 votes cast in the election that officials could not confirm came from eligible voters. The complaint named the Sevier County Election Commission as the only defendant, but Forging Ahead — the group that campaigned in favor of the referendum — intervened as a second defendant.

Thursday morning, the attorneys for the election commission and CCCPF announced they had reached an agreement that the election commission would acknowledge the election should be overturned because of the illegal votes, and CCCPF would drop all claims of fraudulent votes in the contest.

“The plaintiff and the defendant, Sevier County Election Commission, have come to an agreement resolving the dispute between those parties pursuant to which the plaintiff hereby amends it complaint to delete any allegations of fraud against the Sevier County Election Commission,,” CCCPF attorney Lewis Howard announced. “The Sevier County Election Commission agrees ...an incurable uncertainty exists with respect to the number of votes for and against the referendum, and accordingly the election should be voided by the court.”

Forging Ahead still argued the case should not be overturned, and that Forgety had other options besides voiding it, but after hours of arguments the chancellor ruled he didn’t have another option.

“We would strongly object to the court considering any such agreement that has been reached between the plaintiff and the election commission,” attorney Greg Isaacs told Forgety.

He said the agreement had not been submitted to the court before proceedings were set to start, calling the agreement a last-minute bombshell

The judge noted the election commission had the right to drop its defense at any time.

Isaacs told the judge that Forging Ahead was the only group representing the people who voted legally — CCCPF just wasn’t happy with the results, he said, and the election commission abandoned that position when it conceded that its poll workers made errors.

“Nobody is here except Forging Ahead to speak for the voters.” he told Forgety.

He said that the number of illegal votes didn’t justify tossing the results entirely. Instead, he should take 289 votes, which amounts to 12 percent of the votes, and then reapportion the votes based on the percentage of votes that went to each side.

“What the court should do is take the 289 votes out, apply the apportionment rule ... and uphold or validate the election,” he said.

Forgety would later note the court had no way of determining which way those 289 people cast their votes.

Francis said the election commission was protecting the voters and the sanctity of the vote by acknowledging its poll workers made errors and it could not longer verify the outcome of the election. “He says no one speaks for the voters. The Sevier County Election Commission ... yesterday spoke for the voters and said this election was incurably flawed.”

Howard said upholding the election would actually disenfranchise the voters. “The best way to disenfranchise the voters would be to uphold an admittedly flawed election,” he said.

Isaacs earlier tried to argue the complaint should be tossed because CCCPF didn’t sue the City of Pigeon Forge as well as the election commission, arguing that the election commission was acting as a paid agent of the city for the purposes of the referendum and that the city. He said the city might have tried to join the lawsuit if city officials had known in advance that the election commission would reach an agreement that called for the results to be voided.

Forgety said that, even if he agreed Pigeon Forge should be a party to the suit, that would not be grounds to dismiss the compliant — it would have meant he should order them to join the lawsuit.

However, he said he couldn’t find grounds to force Pigeon Forge to take that action when it didn’t do so itself. The city could have intervened at any time, he noted, in the same way as Forging Ahead did last week.

Francis dropped a motion to dismiss the case in which he had argued CCCPF didn’t’ have standing to file the suit.

jfarrell@themountainpress.com