Published: November 05, 2009 09:32 pm      

Judge considering summary decision in Villani lawsuit

By TESA CULLI

tesa.culli@register-news.com

MT. VERNON — Judge Mark Shaner is deciding whether to make a summary decision on the validity of votes from the 2008 Jefferson County State’s Attorney’s election after a motion hearing on Thursday.

The lawsuit was brought by Nicole Villani challenging the Nov. 4, 2008, election results and alleges voter fraud. Villani, who was a candidate for state’s attorney, filed an election contest petition after a discovery recount allegedly showed marked ballots and individual voters who were allegedly ineligible to vote. The lawsuit names Jefferson County State’s Attorney Jeff Bradley and Jefferson County Clerk Connie Simmons as respondents. In the election, Villani lost the race by 69 votes.

Villani filed for a partial summary judgment on about 165 votes cast, and Shaner listened to arguments from all three parties on whether he should make a summary judgment. According to Oran’s Dictionary of the Law, a summary judgment is made based on pleadings, depositions and other court case documents which show there are no questions about the facts in a case. The questions are regarding how to apply the law.

Those votes questioned in the partial summary judgment motion included 15 which allegedly were numbered by election judges; 68 ballots which allegedly don’t specify a reason the voter voted by absentee ballot claiming incapacity; three votes in which the voter was allegedly issued an absentee ballot but voted at the polls; 12 ballots in which the voter was allegedly assisted but did not list the reason they were assisted; and 42 ballots with alleged invalid residences.

According to Villani’s attorney Lane Harvey, when someone votes by absentee ballot claiming incapacity, they must state a specific reason for the incapacity. Among the examples he gave in court was a ballot which had “medical reasons” stated.

“There is no real reason given,” Harvey said. “The responsibility is on the voter to state the reason.”

Another ballot had “walking” listed as the reason for incapacity, and another “handicapped,” Harvey said.

“What is there about that that precludes them from coming to the polls,” Harvey said. “There are people in wheelchairs who come to vote.”

Another ballot allegedly gave the reason of “94 years” as the reason for incapacity.

“What is there about 94 years that specifies a disability?” Harvey questioned.

Harvey argued that everyone has “the right to vote, but they don’t have the right to vote absentee.”

In ballots cast with assistance, Harvey argued a specific reason and what the disability is must be included. Some of the reasons which were stated included “health,” and “handicapped” or no reason listed.

“What’s the handicap that keeps them from marking the ballot?” Harvey said. “Handicapped doesn’t tell us anything.”

In those questioned ballots that allegedly show an invalid residence, the motion uses driver’s license records, foreclosures, divorce records, Jefferson County Housing Authority lease agreements and affidavits requesting public defenders to make the claims. The records are used to allegedly show the voter registration address is the incorrect address, and Harvey said the public records used are the same records a county clerk can use to purge old voter records, and argued the documents should also be used to invalidate the ballots.

Attorneys for Bradley and Simmons disagree with the facts of the case as presented, they argued, therefore a summary judgment should not be awarded.

Shaner will be making a decision on whether to allow a partial summary judgment at a later date.

A second motion for partial summary judgment on additional votes has also been filed by Villani and a motion hearing has been scheduled on Nov. 19.

According to court information, up to this time, Simmons’ office has expended 150 man hours and provided more than 23,000 copies of documents for the lawsuit.