“My take is, we beat them at their own game and they had a fit,” said Diane Thomas, who won a seat on the school board and whose sister, Lula Smart, was the activist tried and acquitted as a result of the investigation.
Jared Thomas, spokesman for the Secretary of State’s office, said the investigators did their work “without regard for any political considerations. The facts are that a district attorney, a grand jury and a judge all thought that there was enough question for a trial to commence.”
But Smart said all she did was help people cast votes they wanted to cast. “We didn’t have to alter anybody’s vote,” she said. “They knew my sister. The people I dealt with are people that I know.”
The state has good reason to impose stiff penalties for mishandling of absentee ballots. When votes are cast outside of a polling station, it’s vital to ensure that voters are protected from frauds such as vote buying, intimidation or stealing and mismarking ballots.
However, the Georgia law that governs absentee voting is technical and, in at least one section crucial to this case, ambiguous. Some of the charges seemed to stem from actions expressly permitted by the law, such as helping a close relative who is disabled to vote. In other instances, the charges rest on confusingly worded code sections that can be interpreted in multiple ways.
In that light, the response of county and state officials raises questions of proportionality: Did the alleged offenses warrant the time, energy and resources devoted to the case, especially given the suspicion and ill-will it generated among black residents in the middle of an election season?
No secret but a surprise
It was no secret in Brooks County that a small group of African-Americans had set out to use a change in voting laws to their advantage. The change, passed in 2005 by the Republican-controlled Legislature, said voters in Georgia no longer need declare a reason for voting absentee.
Inspired by Barack Obama’s victory in 2008, the Brooks County women decided to focus on school board races. They first made waves with a special election victory for an empty seat in 2009. Then came the 2010 July primary.
Quitman's postmaster, John Boone, said Smart proudly told him that she intended "to help (black) people" boost their political impact by casting absentee ballots. Boone would later play a key, peculiar role in the investigation.
Whites make up 60 percent of Brooks County’s population, so it was still a surprise when black candidates unseated white board members, positioning the African-Americans to hold four of seven school board seats after the general election.
“Brooks County had almost 1,000 (absentee votes),” wrote one unhappy citizen, “and all were evident in races where blacks were on the ballot. This needs to be investigated asap.”
Larry Cunningham, a white school board member and one of those who called for the investigation, told the AJC the absentee campaigners “did away with the curtain” that protects voters at the polling booth.
Imagine someone shy, he said, in a small town who wants to vote privately. But an activist comes into their home, and “because of my position in the community, maybe I have some sway over them, maybe I’m just a dynamic personality, I say, ‘Didn’t you get an absentee ballot? Let me take a look at that.’
“In any world would that be right?”
In fact, a few of the people who actually voted absentee did lodge complaints. Johnny Parker's was one. Parker cast an absentee ballot marked only for the school board race, not the other contests.
He showed up on Election Day intending to vote in the other races and became angry when a poll worker told him he couldn’t. He filed a complaint, and told investigators Smart had urged him not to worry about the other races on the absentee ballot.
But at trial, he testified it was all a misunderstanding, according to Smart’s lawyer, Chevene King, Jr. Approached by the AJC for an interview, Parker refused.
The investigators unearthed additional problems. Mary Manning told investigators she was upset that two women had actually marked her ballot for her. When the AJC called Manning’s residence this fall, a woman who answered the phone said Manning did not want to talk about elections.
In moving to drop the charges, prosecutors lamented that their witnesses against Smart all recanted in court what they had told the state investigators. And they expected the others to recant, too.
Concerned by unusually heavy absentee ballot requests before the 2010 July primary, the county elections superintendent called the Secretary of State’s office. Similar complaints flowed in online from voters seeing the numbers and worried about fraud.
On Election Day, about 13 would-be voters at the polls, including Parker and four others prevented from voting, lodged complaints related to absentee ballots.
Cunningham, soon to be in a white minority on the board, contacted the local district attorney, who happened to be the employer of another white school board member. The DA called in the GBI.
The attorney for the old school board, Dick Mitchell, hired a private detective. According to King, the defense lawyer, Cunningham later testified that he might have helped pay for the investigator.
One person interviewed by the investigator was Boone, the postmaster, who revealed that he had taken it upon himself to temporarily set aside ballots that were mailed in batches and record the names of the voters. He became a star witness. (After his actions came out at trial he was briefly suspended with pay by the postal service, however.)
Cunningham also wrote a campaign letter on behalf of two defeated primary candidates, urging voters to write them in in November.
The victors and their campaigners, he wrote, "do not share the values of the majority of the current board," and won by "excessive use of the absentee voter ballot. The evidence of their voter fraud is so apparent it has prompted one of the largest GBI investigations in the history of Brooks County."
It certainly was large. Investigators set their sights on interviewing all 1,352 citizens who had voted absentee in the 2010 primary, according to the lead investigator. Eventually, they called it a day at 402.
Cunningham said it’s irrational to think the state would have investigated without evidence of illegality. He said race had nothing to do with the complaints.
As for the officials involved in the probe, some were reluctant to talk about it for this article.
GBI director Vernon Keenan directed questions to prosecutors. The original DA recused himself from the case, and the one who brought the charges, Joe Mulholland, directed questions about the investigation back to the GBI.
About the prosecution, however, he said there was enough evidence to make the case even larger. But as it was, it was so big and complicated that he was led to hand it off in the hopes someone else could get it finished: "This is the most frustrating case I've ever handled," he said. "I don't think there's a question this case could have been handled better. By everyone."
The prosecutor in Smart’s final trial, Lalaine Briones, emphatically stood up for the prosecution in a written statement to the AJC, citing witnesses’ changing stories and recounting alleged irregularities by the defendants. She noted that two of the defendants were defeated “by large margins” in this year’s November school board election. (Which means that the board will once again be majority-white.)
Parsing the law
Debra Dennard, a nursing student in the Brooks County seat of Quitman, helped her father complete his absentee ballot for the primary and took it to the post office for him.
"I wasn't going to roll down that ramp and take it," David Dennard said recently from his wheelchair, which he has used since he lost both feet to diabetes.
For those acts, Debra Dennard was indicted on two felony charges, although the law permits close relatives to help a disabled person to vote.
When it comes to just mailing the ballot, the defendants argue that the law allows any voter to accept help, disabled or not. But that depends on how one interprets the statement in the law: The voter “shall then mail or personally deliver” the ballot. The word “personally” does not appear to apply to the word “mail,” but the intent is arguable.
Neil Bradley, a recently retired ACLU lawyer on voting rights cases, calls the law “largely indecipherable.”
(Another example: The oath for assistants printed on the absentee ballot envelope cited a specific part of the law, but that section pertains to rules for assisting at a polling station.)
"I think this was an incredibly important case in that it shows there need to be some major reforms in the electoral process as far as ballots are concerned in Georgia," said Mulholland, the prosecutor. "It's clear, and from the jury's verdict it's clear, that there's some serious ambiguity that needs to be cleared up."
Chris Williams, the secretary of state’s lead investigator in the Brooks County case, brushed aside suggestions that the law is murky on who may mail a ballot. In his testimony, he said that if a husband, child or neighbor takes your completed absentee ballot to the mailbox for you, that is a felony. “They know they can’t do this,” he said of the defendants.
Eye of the beholder
However, some residents of Brooks County view the investigation itself as a violation.
“All they did is get people who wouldn’t normally vote to stand up and vote,” said black resident Patricia Little, whose interactions with Lula Smart formed the basis for two counts in Smart’s indictment. Prosecutors claimed Little received help from Smart in completing her ballot, but she disputed their account and said she voted the way she wanted. “The only thing that intimidated me is those GBI people, making me feel like I’m in trouble.”
The AJC’s review of investigators’ notes showed that most people whose interviews became the basis for criminal charges said they voted how they wanted to vote and were not pressured. There was no charge of vote-buying.
For example, Sherona Tennyson said Smart offered her a stamp to make sure she mailed her ballot after she filled it out. Tennyson said she asked Smart to mail the ballot instead. Possessing Tennyson’s ballot was the basis for one of Smart’s felony charges.
Over the years, the case hanging over their heads both devastated and steeled the accused.
“I block it out mostly,” Brenda Monds said one Saturday prior to this November’s election, as some of the organizers gathered at a park for another campaign drive. “Until I talk about it. Then when I talk about it it’s real again. You don’t want nothing like this to be real.”
She and some of the other defendants said reaction within the community hasn’t fallen strictly along racial lines, that they’re received some support, much appreciated, from whites.
“They do it privately,” said Monds. “Which I understand.”