VALDOSTA -- Superior Court Judge Joe C. Bishop, after six hours of testimony Wednesday, said he will decide on a verdict in the declaratory judgment action sometime today or Friday afternoon.

The annex courtroom at the Lowndes County Courthouse was packed with lawyers, election supervisors from other counties and concerned citizens, ready to hear the City of Valdosta's case.

The declaratory judgment action came after former Mayor James H. Rainwater died on Oct. 12. The city filed the suit to determine the election proceedings after Rainwater's death left a vacancy in the three-person mayoral race.

Present were city attorney George Talley and his partner, Ed F. Preston, who served on behalf of petitioners the City of Valdosta, Mark Barber, superintendent of elections, and Guyton O. Terry III and J.R. Sessions. Terry and Sessions did not attend the hearing Wednesday.

"In lieu of being here, the petitioners Guy Terry and J.R. Sessions submit that if James H. Rainwater is on the ballots they will vote for him and if he is not, they will write in his name," Preston said.

Respondents named in the suit, mayoral candidates Benny Mitcham and John Fretti, and the Lowndes County Board of Elections were also present. Representing Fretti was attorney Carol Sherwood, while Jim Elliott represented the Board of Elections.

The hearing began at 10 a.m. with opening statements from the attorneys. Talley asserted Barber should determine who qualifies, not the Board of Elections or Deb Cox, supervisor of elections for Lowndes County, and by taking Rainwater off the ballots the Board of Elections was taking away "precious" voting rights. He said that letters sent to absentee voters could influence them to change their votes. Talley also asked Bishop to rule on the six questions outlined in the suit. Those six questions are:

1. Whether a vote for James H. Rainwater, who died Oct. 12, is a legal vote.

2. Whether votes for Rainwater should be counted.

3. Whether the Lowndes County Board of Elections can instruct prospective voters that a vote for Rainwater would not be counted and would be null and void.

4. Whether the actions of Deb Cox, elections supervisor, and/or the Lowndes County Board of Election have irreparably tainted the Nov. 4 election.

5. Whether the qualification period for the office of mayor should be reopened so that new candidates can qualify and run for the office in a special election.

6. Whether the Nov. 4 mayoral election should be canceled and a special election held in its place.

"You can't win or lose this kind of case," Talley said. "We come to you today for guidance because we have unclear evidence and are in unfamiliar waters."

Sherwood then took the floor, outlining the events leading to Wednesday. He said that because Rainwater died, the mayor was no longer qualified as a candidate under Georgia election law or the rules for qualification. Those rules are:

1. Candidate must be a registered voter

2. Candidate must be a citizen of Valdosta

3. Candidate must be fit to hold the position of mayor

4. Candidate must be a county resident for 12 months prior to the mayoral election

5. Candidate must be qualified

"We don't care who determines the qualification of a candidate," Sherwood said. "But the Board of Elections said his name should be taken off the ballot, and we agree that his name should be taken off the ballots. We are asking for an interim order that would direct Mr. Barber to disqualify Jimmy Rainwater, or, to confirm the Board of Election's decision."

Elliott started by saying the qualification requirements had to be followed, and by dying, Rainwater did not meet any of the qualifications. He said a new election could not be held because Georgia law states the election must be held on the first Tuesday in November. Elliott also said it is illegal to keep a non-qualifying person on the ballot and to reopen qualifying.

"There is no reason to do this, because if you rule with the petitioners, you are asking for an invalid election," Elliott said. "There is only one issue -- should James H. Rainwater's name be withheld from the ballot. The answer is a resounding yes. There are two other people running, and there is no law to authorize the court to leave Mr. Rainwater's name on the ballot."

Four people were called to testify -- Barber, Cox, Linda Beazley, supervisor of elections for the state, and John Adams, Board of Elections chairman.

Barber testified he was the supervisor for elections. He said after Rainwater's death and questions about the election surfaced, many people called him confused or angry about the election.

Barber did admit that Rainwater did not meet the qualifications for being a candidate, but did not want to make the decision to take him off the ballot.

"I want to make sure I am not infringing on the voters' right to vote for who they wish," he said.

Taking the stand next, Cox said the order to take Rainwater's name off the ballots and send letters informing absentee voters of Rainwater's death and the change in the ballots came from the Secretary of the State's office and Beazley.

When Talley asked her who she thought was the superintendent of elections, Cox said the Board of Elections was, because in a letter, dated Jan. 6, 2003, Barber wrote, "Due to the high degree of satisfaction with past services from your organization, I respectfully request that your office conduct the upcoming November 2003 election." The letter also said the city of Valdosta will qualify candidates at City Hall.

After a lunch break, Preston called Adams to the stand. He asked Adams to clarify what would happen if some absentee voters did not receive word their vote would be invalid for Rainwater. Adams would not comment on the situation.

Beazley was called last by Elliott. She testified she had been working with elections for 35 years. She said that when Barber called her about requalifications, she said it could not be done. When Cox called about the ballots, Beazley said a vote for Rainwater would be null and void. She received her information on the matter from her office and the Secretary of State. Beazley also said a person who is dead is not entitled to votes. When Talley asked her opinion if the court ruled otherwise, she said, "If that is their prerogative, so be it."

Throughout the hearing, the audience gasped, murmured, laughed and even clapped. At one point, the laughter was so loud, Bishop threatened to call the bailiff to escort disruptive people out of the courtroom.

Audience members included Lowndes County Sheriff Ashley Paulk, City Council District 3 candidate Henry Gosier, Councilmen Dexter Sharper, Willie T. Head and Robert Yost, City Manager Larry Hanson and the Rev. Floyd Rose.

Court adjourned at 4:15 p.m.

Commenting about the suit, Rose said, "This is a disgrace. It insults the taxpayer, the voter and the memory of Mayor Rainwater. It is time to let him rest."



To contact reporter Michelle Taylor, please call 229-244-3400, ext. 245.

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