Ophelia Ford will be a state Senator from District
29 at least through the weekend, while U.S. District Judge Bernice Donald
ponders the exhibits, evidence, and testimony elicited up to and through
Wednesday’s day-long special hearing on the status of Ford, whose narrow 13-vote
victory in a special election last fall is on the very brink of nullification by
a majority of her colleagues.
Though there had been a general expectation that the issue
might be resolved on Wednesday, Donald’s decision to postpone a ruling until lnext week was accepted for the most part in an outward show of good grace by the
defendants in the case, including the 13 Republican state senators and one
Democrat who showed up en masse for the hearing.
“That’s fair enough. She’s got a lot of material to work
through,” said Senate majority leader Ron Ramsey of Blountville. His
sentiment was echoed by Memphis lawyer John Ryder, attorney for the GOP
senators who, along with Democrat Don McLeary of Humboldt, were in the
majority last week on a preliminary 17-14 vote to void Ford’s election.
Finding it difficult to be as philosophical was Terry
Roland, the defeated Republican adversary who, in and out of court, has
challenged Ford’s election on the basis of several alleged frauds and
irregularities. Roland wondered aloud afterward if the extra several days
provided by Donald wouldn’t give Lt. Governor John Wilder, the venerable
Senate speaker who favors Ford’s seating, an opportunity to “twist arms and
change the vote.”
Promising to reach a decision sometime
between Monday at the earliest and Wednesday at the latest, Donald will
determine a plethora of questions – on the question of her own jurisdiction, on her need to hear further elements of the case, and on the possible permanent
continuation of her temporary injunction against a final – and definitive
–Senate vote.
Donald imposed the injunction on due-process grounds last
week after the Senate, acting as a “Committee of 33” for purposes of the ongoing
special session, voted to void the results of the September 15th special
election in District 29. The move came in response to a motion by Republican
majority leader Ron Ramsey of Blountville and reached the magic number of
17, a majority of the body, when Democrat McLeary broke ranks to join with 16
Republicans.
Before that vote on Tuesday
night of last week could be repeated in a scheduled vote by the Senate in
regular session on Thursday – when another majority would have made the outcome
irreversible — Donald had been petitioned by lawyers for Ford, reportedly via
telephone, and had granted the Temporary Restraining Order.
Legal teams representing the various parties to the action
were in Donald’s court on Wednesday. On hand to represent the Senate as a whole
were state Attorney General Paul Summers and two deputies. Ryder — like the AG, making a motion to dismiss Ford’s suit — was
there on behalf of the 17 Yea voters from last week, and Lang Wiseman,
aided by Richard Fields, represented Roland, whom Judge Roland later dismissed as a defemdamt. Memphis lawyer David
Cocke headed a three-member team representing Ford, who has invoked Civil Rights statutes in an effort to block further Senate action.
Witnesses heard from Wednesday included state Election Supervisor
Brook Thompson, several Ford co-plaintiffs who claimed to have ended up
improperly on Roland’s list of suspect voters, and state Senator Steve Cohen,
a Memphis Democrat who was called by Cocke to affirm his thesis that the Senate
had acted last week without appropriate information from the six-member Senate
special committee charged with offering recommendations on the seating question.
From the pont of view of content, the only truly startling
fact adduced in the testimony was Thompson’s admission, in reply to a question
from Ryder, that the final matching of District 29 voters against the Social
Sercurity Administration’s “master death list” had yielded 38 hits — not just
the two that were already known. The disclosure evaporated almost as soon as it
bubbled up, however, as Thompson went on to explain that 32 of these matches
were “keying errors” involving voters whose names and ages “weren’t even close”
to those on on the corresponding death file. Another four matches involved
surviving people continuing to use the social security number of a
deceased family member — as was once permitted by the SSA. Upon receiving this
explanation, Ryder did not press Thompson further, and the matter never
re-surfaced.
Wednesday’s proceedings were often dull and technical to the point of challenging the wakefulness of attendees. Cohen managed to liven things with a series of quips that were
both on and off the point of the moment. (Example: “If I can, I can get
around this,” Cohen said when his paraphrasing of a statement by Wilder was
objected to as hearsay evidence. Rephrasing the testimony from his own
perspective, the Memphis senator quipped about Wilder, who frequently speaks of the
“cosmos”: “What he said was cosmotic, anyway.”)
Cohen, who had tangled last week with Senate Democratic Leader Jim Kyle and others over the organizaton of the Senate into a “Committee of 33” for the special session also got the opportunity to complain that “they” had thereby “emasculated” the State and Local Government Committee, which he chairs. And, in response to a question in cross-examination from Assistant Attorney General Janet Kleinfelter about the duration of last week’s Senate discussion on seating Ford, Cohen had the satisfaction of referring to Kyle, a frequent antagonist, as having been “verbose.”
Ironically, Cohen’s appearance,
coupled with the presence of Ophelia Ford herself, brought to 16 the number of
senators on hand in Donald’s courtroom – almost enough to constitute a majority,
if still well short of the two-thirds majority needed to constitute a quorum.
The most anxious of the senators present Wednesday was Democrat McLeary, who
observed during a break in proceedings, “I feel intimidated about my vote, just
being made to come here.” He, along with Memphis Republicans Mark Norris
and Curtis Person, had received subpoenas for possible testimony –
presumably because their domiciles were within a hundred-mile radius of the
court and they could offer some background, if called upon, concerning last
week’s vote.
In the event, the three senators, who were meanwhile
bolstered by the show of support from their colleagues, were never called. Most
of the testimony that was heard concerned the technicalities of the voting
process and the alleged election irregularities, which included nine votes that
were ultimately found by the six-member special Senate committee to be invalid.
Two of those votes had been cast in the name of dead people, and several more
were cast by felons whose right to vote had never been legally restored.
Remaining at issue were multiple instances of improper
addresses and invalid election-day voter signatures alleged by Roland’s team. It
was largely on the basis of these that Ford’s team sought the injunction,
charging that any effort to void the election based on them would cause Ford
“irreparable harm” and result in mass disenfranchisement of District 29 voters,
as well as violation of constitutional due process.
Those are some of the issues Judge Donald will have to
consider, as well as the defendants’ claims that the federal court lacked
standing to adjudge the Senate’s historical right to determine its own
membership (“Let the Senate be the Senate,” as AG Summers put it Wednesday, employing a vintage Wilderism), that the results of the enjoined vote could not be predicted, in any
case, and, most simply and crucially, that the injunction should therefore be
dismissed – clearing the way for a final Senate vote.
As the courtroom was clearing, just after 6 p.m., and the
weary senators were making plans to return to Nashville for the week’s final
legislative day on Thursday, one of the Republicans who had voted against Ford
and argued strongly to void her election, Jim Bryson of Franklin, made a
point of smiling cordially at her. “See you tomorrow,” he said,
colleague-to-colleague.
