Wednesday, February 1, 2006


Posted By on Wed, Feb 1, 2006 at 4:00 AM

Here comes the judge: Now what did she say? Apparently something disappointing to the ears of challenged state Senator Ophelia Ford. But there's a catch or two that may be reassuring to the beleaguered Democrat.

A fully parsed, definitive answer will surely come soon from the relative horde of lawyers who began going over Judge Bernice Donald’s somewhat perplexing ruling on the disputed District 29 state Senate seat just after 3 p.m. Wednesday when Donald emailed copies of it to the various contending parties.

But State Attorney General Paul G. Summers, for one, seemed sure that the ruling represented a victory for those (including, formally, the state of Tennessee) who wanted to validate the potential voiding of state Senator Opehlia Ford's election. Said Summers: "The motion clears the way for the State Senate to void or affirm Sen. Ford's election....Our argument that the court should let the Senate be the Senate was well founded. The court has rendered advice about how the Senate might proceed. I am studying the 31 page opinion thoroughly before I advise the Senate leaders as to the procedure to be used in the election contest."

What that means is that, though Judge Donald may have given half a loaf to each of the principal parties, the challengers to Democrat Ophelia Ford’s election as well as her defenders, only the half given to her opponents seems readily edible.

Highly uncertain is the effect of Donald's grant of “declaratory relief” to Ford in her effort to forestall a final Senate vote voiding her election. More immediately relevant is Donald's denial of the “injunctive relief” Ford also sought.

Donald's lift of her temporary injunction of two weeks ago means that the state Senate may proceed to vote Ford’s tenure (provisional to this point) up or down. The ruling also asks the Senate, in judging, to employ voting standards that are “uniform’ throughout Tennessee.

A key part of her ruling calls for ground rules that, Ford's partisans say, ultimately favor her:

“The Senate must apply uniform, non-arbitrary, objective standards for determining and defining a legal vote. Such standard must be applied uniformly across each of Tennessee’s ninety-five (95) counties....

"Again, the Senate may not apply post-election standards to assess ballot validity that differ from pre-election standards. Voters whose right to vote is challenged must be afforded minimal, meaningful due process to include, notice and opportunity to be heard before they can be disenfranchised.

“The Senate, in its wisdom may vote to void an election, but only after it has developed and applied statewide uniform standards that govern which votes will be counted, practicable procedures to implement them, with an orderly mechanism for judicial review of disputed matters that may arise.”

Since Donald expressly disclaims “jurisdiction to decide an election dispute,” the bottom line would seem to be that the Senate, which she acknowledges to be “the final arbiter of the election contest,” can vote on the District 29 issue at its own risk, outlined above.

Acting as a “Committee of 33,” the Senate in special session voted 17-14 two weeks ago to void the special election of last fall, which saw Ford beat Republican Terry Roland by 13 votes; the body was prevented from finalizing that vote in regular session two days later because of the temporary injunction granted by Judge Donald at Ford’s request.

The new ruling, in response to arguments by all parties at a hearing last week, clears the air to the extent that it frees the Senate to vote, but Donald is explicit that the Senate cannot take into consideration the various challenges made by Roland and his legal team on the basis of voters’ addresses and the disputed manner by which some of them were signed in by registrars.

That leaves the number of recognized invalid votes – including those of deceased voters and felons -- at 10, still three votes short of Ford’s 13-vote lead, but it is unclear what degree of legal restraint is incumbent upon the Senate, whose previous vote ipso facto declared the election as tainted.

The bottom line: Though various nuances remain to be sorted out, it would indeed appear that Judge Donald has conditionally licensed the Senate process to complete its vote to void the disputed election -– a fact which could bring the matter of an interim appointment to the Shelby County Commission next week in the event of a quick Senate vote.

But -- and this is a very real "but" -- the ruling establishes possible pitfalls that could open the way for further legal challenges.

David Cocke, Ford's lawyer, had this to say: “I’m very happy with the decision. She has essentially told the Senate they must apply standards consistent with due process, and she has spelled these out. Unless they apply her criteria, any vote of the Senate’s will be invalid, and I’ll be back in her court the next day to contest it.”

Cocke said Donald’s use of the term “without prejudice” in denying Ford ‘s injunction means that the case can be reheard in her court at any time if her conditions are violated. As Cocke saw it further, Donald “essentially states that the Senate has no legitimate grounds for unseating Senator Ford.”

A Democratic member of the Senate, speaking for background Wednesday night, suggested that the terms of Donald's declaratory judgment tie the hands of the Republican majority and that the Senate's freedom to void the District 29 election would prove to be more theoretical than pragmatic.

"I'm a lawyer, and I can't understand it," the legislator said of Fonald's ruling.

In any case, indications late Wednesday were that no vote would occur on Thursday, after all. And all parties would have the weekend to further digest Donald's complex judgment.


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