Jackson Jambalaya

Scroll down the page to read the update. Original post published on July 28. 

Earlier post with copy of request for injunction

A sea of black and gray swept upon the banks of Court Street last Thursday. It wasn't a convention of Oakland Raiders groupies, but lawyers, a whole mob of lawyers, dedicated to slugging it out over True the Vote's Lawsuit against Secretary of State (SOS) Delbert Hosemann, the Republican Party of Mississippi (MSGOP), and several counties. The Texas non-profit public interest group sought a preliminary injunction against the defendants over the issue of the redaction of birth dates from the poll books used in the Republican Senate primary and runoff elections last month. The court did not rule on the preliminary injunction but requested briefs in the next two to three weeks.

True the Vote seeks the un-redacted poll books as it argues they need them to detect voter fraud and illegal cross-over voting (a person votes in one party primary and then in another party's runoff election). The counties argued True the Vote must follow the public records laws and redact the birth dates from the poll books. The counties state True the Vote must pay for the cost of copying and redaction. Retired Fifth Circuit Court of Appeals Judge Nancy Atlas presided over the hearing as all judges in the Southern Mississippi U.S. District recused themselves.

Judge Atlas quickly stated "this is not a case about voter fraud. It's about what the application of the National Voter Registration Act (NVRA) should be and whether it pre-empts state law." Judge Atlas said the hearing was held only to decide whether to issue a preliminary injunction. The issue of pursuing a temporary restraining order was dropped by True the Vote. Judge Atlas said there was "an issue of voter privacy" and "True the Vote seemed to be on a mission.

Judge Atlas at times injected humor into the proceedings while at other times she took questioning of the witnesses away from the lawyers and did it herself, as she tried to expedite the hearing (she had a talent for crystallization and asking in one question what a lawyer would ask in five).

True the Vote President Catherine Engelbrecht was first to testify. She said the organization provides training to volunteers*, provides research, and provides support to people concerned with voter integrity in their communities. She said TTV came to Mississippi because "we received an onslaught of inquiries" about possible voter fraud in Mississippi. She said she personally only went to courthouses in Hinds, Rankin and Panola counties. She only asked to see absentee ballot applications, not poll books, in Hinds County.



Judge Atlas said the NVRA "focuses on voter eligibility". She asked Ms. Engelbrecht whether absentee ballot applications fell under the jurisdiction of the NVRA. (KF note: This question tells me she is probably going to rule against the plaintiffs. She shows a great deal of concern that what True the Vote requests has little to do with voter registration and instead is more concerned with actual voting and election day activities). Judge Atlas asked the TTV President what the poll book has to do with voter eligibility.

Ms. Englebrecht paused for several seconds and said if someone voted absentee, then he was not eligible to vote on election day. The poll books were needed to determine if he indeed voted. The judge said it was a weak argument. Attorney Harold Pizzetta (representing the SOS) said the plaintiffs already had a list of eligible Mississippi voters and voter ID numbers. He said they did not ask for the poll books from Hinds and Rankin counties. He argued that checking to see who voted in a primary and runoff election was not a federal matter. Judge Atlas grew impatient with Mr. Pizzetta as he fell into his usual habit of making his points after engaging in rather long-winded arguments. She then asked several questions of the witness but stopped herself and said "but I don't want to steal the thunder from the lawyers."

Mr. Pizzetta asked Ms. Englebrecht if there was a restriction on how the data could be used if True the Vote did obtain the voter birth dates. She said the organization does not disseminate such information. She said it was barred by law from giving it to candidates or using for commercial purposes. Judge Atlas asked if private individuals could obtain the same information (she brought this up again at the end of the hearing and spent some time delving into this area of concern). Ms. Englebrecht said such people could indeed obtain the information under her interpretation of the law. She also admitted under questioning from Pizzetta that True the Vote had no members, no shareholders, and does not require dues. Mr. Pizzetta then asked if her organization was ever accused of voter intimidation, but Judge Atlas cut him off after one attorney objected.

Attorney Mike Wallace (MSGOP) next questioned her as he asked if she has been persecuted by the IRS. She admitted that True the Vote only had four board members, one of whom is Gregg Phillips, a former deputy DHHS director under Governor Fordice. Mr. Wallace then asked her if she had personal knowledge of anyone who was denied the ability to review absentee ballot applications. He then walked over to the witness stand until rebuked by the judge- "yes, you may approach witnesses without asking unless somebody gets threatened." Mr. Wallace stood chastised. Mr. Wallace told Ms. Englebrecht the MSGOP did not keep poll books, absentee ballot applications, or other materials in its possession. He said she twice sued the Republican Party even though she was repeatedly told the party had no absentee ballots or applications (they are kept at the Circuit Clerk's office). Indeed, True the Vote stated on page nine of its complaint:

In June 2014, in an effort to determine whether ineligible voters had been allowed to cast ballots in the Mississippi Republican Primary run-off election, True the Vote requested access to Mississippi's voters records from the Republican Party of Mississippi. True the Vote was denied access to those records.

Mr. Wallace then asked her if she signed a document that stated "I have personal knowledge theses facts are true."  She said she had personal knowledge of activities only in Hinds, Rankin, and Panola counties.  (KF note: Just one problem. She signed a  Verification for Motion for a Temporary Restraining Order and submitted it to the court on July 9). The motion states:

I, Catherine Engelbrecht, am an authorized agent for the purpose of executing this document on behalf of True the Vote; I have reviewed the Motion for Temporary Restraining Order; I hereby declare and verify that regarding the facts and allegations of which I have personal knowledge, I believe them to be true. More specifically, I have personal knowledge that the election commissions of Copiah County, Hinds County, Jefferson Davis County, Lauderdale County, Leake County, Madison County, Rankin County, Simpson County and Yazoo County refused to provide myself and other True the Vote volunteers access to complete voter records. Rather, we were informed that the birthdates of the voters must be redacted. True the Vote, and myself, believe this to be improper. I verify under penalty of perjury under the laws of the United States of America that the foregoing is true and correct. See 28 U.S.C. § 1746.

She said her "personal knowledge" of what took place in other counties was written by incident reports submitted by volunteers.  Mr. Wallace hammered her on this point.  He asked her about Copiah County, as she stated in her motion she had "personal knowledge" about the alleged refusal by the circuit clerk to provide un-redacted voter records, but testified she did not visit the county or contact the circuit clerk.  She said it was  her "understanding" that is what happened to the volunteers.  Mr. Wallace continued along the same line of questioning until Judge Atlas cut in and said  Ms. Englebrecht only had "limited amount of personal knowledge of what was in those papers."

Mr. Wallace then asked her if the Republican Party denied her access to any materials. She said the volunteers were told different things: some clerks said the parties had the information, some parties said the clerks did, and others said the Secretary of State did.  Mr. Wallace also said MSGOP Chairman Joe Nosef told her the information she sought was found in the Circuit Clerk's office. Mr. Wallace then asked her about a fundraising letter and a press release found on the True the Vote website.


He asked her about what her  personal knowledge of the claimed destruction of documents.  She said it was what she was told by volunteers.  The plaintiffs only submitted one affidavit from voter on the Gulf Coast.  (KF Note: Is Mr. Wallace pursuing sanctions or perjury with this line of questioning?)

Hinds County attorney Pieter Teeuwissen then picked up the gauntlet and proceeded to lacerate Ms. Englebrecht on the stand. He asked her where she went in Hinds County. She replied she went to the courthouse but could not provide an exact date. She said it was within a few days of the second election. She said she never asked for nor spoke to the circuit clerk but spoke to some nice lady behind the counter. She provided no notes or documentation. Mr. Teewussen asked her if she knew Hinds County had two courthouses and two judicial districts. She said she didn't know and could not state which courthouse she visited (KF note: I'll stipulate it was probably the main circuit courthouse if her testimony is to be believed).  It is no exaggeration to state that Ms. Englebrecht repeatedly fumbled her answers regardless of who the attorney questioning her was while she provided few specific details in her answers.  It was clear she documented little, if any, of her actions.  

Attorney Kristen McDanald & Roy Nicholson

Rankin County attorney Craig Slay then took his turn at bat and asked her the same questions: When did she visit Rankin County? Who did she meet, what took place. She said she went to an "annex-looking type building" and was directed to the Circuit Clerk. She said her name was Becky, she was white, and she wore glasses. She said she didn't remember her hair color (there are two Beckies: Becky Boyd, the clerk, and Becky Pouncey, the deputy circuit clerk. One has gray hair, one is a brunette). He asked her if she ever invoked the NVRA. Ms. Englebrecht replied she didn't remember.

Note: I am going ahead and publishing this part of the post.  It is late and I will finish the rest of it tomorrow.  This post is plenty enough to keep those interested busy reading.  I will post the transcript when it is available. 

Update: Here is the rest of the post. Sorry for the delay. 

Plaintiff Roy Nicholson testified he thought his vote was canceled out by fraudulent "crossover votes".  He was sincere and earnest in his testimony- and didn't make claims he could not substantiate.  It was also amazing how efficient the attorneys became when Judge Atlas told them at 11:00 the court would recess for lunch at 1:00 - and the length of the lunch break depended on how many witnesses they examined before lunch.


Attorney Joe Nixon (Plaintiff) told the Judge later in the afternoon he did not bring all of his witnesses. Judge Atlas was not impressed and replied that if she was trying to keep a petition alive, she would have brought every credible witness she could.  The defense presented no witnesses.

One key moment took place when Judge Atlas told Mr. Nixon she was "not comfortable accepting" True the Vote incident reports because they were "not authenticated and filled with hearsay." She said they were not business records. She said "I'm not prepared to receive massive amounts of hearsay in these incident reports."

Attorney Joe Nixon

 Judge Atlas later said "I believe True the Vote can get what it wants without birthdates but the statute is written broadly."  There was one constant theme Judge Atlas stuck to throughout the hearing: This entire case is a question of the application of the NVRA.

Mr. Pizetta argued the poll books were not used to maintain voter rolls. Judge Atlas said after one round of Pizetta arguments (which as stated earlier, tend to be very long-winded) "For Southerners, they sure talk fast, don't they?"  He also said a Texas decision said NVRA did not give one access to birthdates.

Mr. Wallace then argued the Republican Party could not comply with the requests of True the Vote because it simply did not have any documents.  Mr. Wallace then stated that there was no Mississippi statute or case law that said someone who votes in a party primary can not vote in another party's runoff election.  He said the Attorney General said in 1978 voters could not "crossover" after voting in a party primary.  However, AG opinions are not binding law but can protect public officials who rely on them from liability.   What was rather amusing later in the hearing was when Mississippi Republican Party co-counsel Russ Nobile presented his arguments.  Mr. Wallace literally lip-synced his arguments as he made them.   Charlie McCarthy anyone?

Kimberly Turner (SOS) testifies

Judge Atlas said was worried that anyone could get the information requested under True the Vote's interpretation of the law.  She said anyone with money could come in, request the information, and get it.  She also said she was not worried about True the Vote misusing the information. She said she had not doubt the plaintiff would not distribute the information to other parties.  However, Judge Atlas said she was worried about other parties obtaining the information from the clerks and then using it for their own purposes.

Mr. Nixon then argued that a Mississippi voter would not know if the election and votes were valid.  She told him he was "undermining his earlier arguments and he should stop".  He continued with a policy-oriented argument but she stopped him again and said "You are wasting your breath. I am begging you to address the statutory issues."  (She did him a favor here. She wants to know how the federal law should be applied in this case. He was arguing everything but the application of the federal law.).

Mr. Nixon said how the information was used should not be a concern of the court or the defendants. He said the costs of obtaining the records meant only the "wealthy" can challenge the validity of the voter rolls. Judge Atlas again said "You are talking policy, policy, policy, but I want to hear about statutory construction."   Mr. Nixon said "All I heard was I had to sue 82 clerks."  Judge Atlas replied "What you heard today was all you had to do was ask."   Mr. Nixon said his plaintiffs did not mean to put a "burr under the saddle of the Mississippi Republican Party" and that the press release (see above) was "mis-worded."  He said "We haven't accused the Mississippi Republican Party of anything."

Judge Atlas left Mr. Nixon with a final warning: "Be careful what you wish for because you may get it."  She said the focus should be on preliminary relief and statutory construction. She ordered the defendants to submit their briefs on August 8 and the plaintiffs to submit their briefs on August 15. 


*True story. Several True the Vote volunteers appeared at the Hinds County Courthouse several days after the runoff election to review absentee ballot applications. They asked the election commission where to go and how to review the apps. The Election Commission referred them to the campaign representatives present. So, you got it, Pete Perry and Bill Billingsley trained the volunteers for several hours, as they had no clue how to review them. This story was verified by three sources.