Opinion
No. 2011–CA–1716.
2011-12-9
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”.
Kurt C. Garcia, Garcia Law Firm, Marion D. Floyd, Kenner, LA, for Plaintiff/Appellant/Peter A. Rupp. James D. “Buddy” Caldwell, Attorney General, William P. Bryan, III, Erin C. Day, Assistant Attorneys General, Department of Justice, Civil Division, Baton Rouge, LA, for Velma Bourg, Registrar of Voters, St. Bernard Parish.
Kurt C. Garcia, Garcia Law Firm, Marion D. Floyd, Kenner, LA, for Plaintiff/Appellant/Peter A. Rupp. James D. “Buddy” Caldwell, Attorney General, William P. Bryan, III, Erin C. Day, Assistant Attorneys General, Department of Justice, Civil Division, Baton Rouge, LA, for Velma Bourg, Registrar of Voters, St. Bernard Parish. William E. Crawford, Jr., Louisiana Department of State, Baton Rouge, LA, 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, Chalmette, LA, 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) . 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:
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.
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.]
(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.
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, § 10 1 is not superseded by La. Const. art. XI, § 1, 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.
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.”
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.
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.
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.)