Henry Whitehorn files response to John Nickelson's brief in Caddo sheriff election lawsuit
Henry Whitehorn filed a response Monday to a brief John Nickelson and his legal team filed Saturday, Dec. 2, in a lawsuit over the contested election results for Caddo Parish sheriff.
Retired Louisiana Supreme Court Justice Bleich asked for a briefing of arguments during the court hearing Nov. 30.
Whitehorn and Nickelson participated in the runoff election Nov. 18. Whitehorn won with one vote, receiving 21,621 votes while Nickelson received 21,620.
A recount was performed Nov. 27 on the absentee ballots for the runoff due to the one-vote margin. The recount resulted in an additional three votes given to both candidates, ultimately leaving the outcome unchanged with Whitehorn ahead by one vote.
Shortly after the recount, Nickelson filed a lawsuit outlining a number of allegations of irregularities in votes during the runoff election.
Nickelson named Henry Whitehorn and Louisiana Secretary of State Kyle Ardoin in the lawsuit. Nickelson asked the Caddo District Court to declare a victor or order a new election.
Bleich asked Nickelson on Nov. 30 to provide a brief for the petition and for it to be filed by noon Dec. 2. Following that filing, Whitehorn's counsel was granted two days to respond.
On Dec. 4, Whitehorn's counsel filed a brief in response.
Learn more: Caddo Sheriff candidate files lawsuit following one-vote margin
Here's Nickelson's brief
Opening statement in the brief, states:
This suit concerns a “highly unusual” result: just a single vote separates two run-off candidates in an election where, among other irregularities, it is uncontested that two voters voted twice. This alone requires a new election under the Louisiana Supreme Court’s decision in Adkins v. Huckabay, 1999-3605 (La. 2/25/00), 755 So. 2d 206. John Nickelson (“Petitioner”) proved at trial that the substantial irregularities far outnumber and outweigh the margin between Petitioner and Defendant Henry Whitehorn (“Defendant”). A new election should be ordered.
Nickelson's brief was a nine-page argument that highlighted three claims.
These claims included the Louisiana Supreme Court ruling in Adkins v. Huckaby, burden of proof and waiver, and substantial irregularities require a new election.
According to the brief, Adkins v. Huckaby is a case in which the Louisiana Supreme Court ruled a new election was necessary when two voters voted twice. In that case, there was a three-vote margin.
The brief stated, "with a one-vote margin between the candidates, a finding that even one voter voted twice (i.e., two improperly cast votes) mandates a new election under Adkins."
Nickelson's second claim was that Whitehorn's counsel misconstrued the burden of proof when it repeatedly reminded the court that Nickelson had to prove whom each improperly casted vote was for.
According to the brief, Nickelson is not required, and in fact is constitutionally prohibited, from attempting to prove for whom the improper voter voted.
The third claim noted the substantial irregularities found in the election required a new election. In this claim Nickelson's counsel highlighted two key points.
The Board of Election Supervisors failed in its duty to examine ballots in accordance with the law.
During the trial, Nickelson found and offered evidence of four ballots that lacked the witness’ name and signature and two ballots that lacked the voter’s name and signature.
And despite rejecting 51 similarly unlawful ballots, the staff assigned to work under the Board of Election Supervisors overlooked the deficiencies on the ballots and counted those votes.
"The law is crystal clear on this matter—they should have been flagged as noncompliant and presented to the Board of Election Supervisors to adjudicate. However, the Board was not notified of those ballots’ deficiencies and permitted to examine them," the brief stated.
The Board of Election Supervisors failed to conduct a hand recount, and the results are otherwise unreliable.
Nickelson requested a hand recount, but his request was rejected. During court Nov. 30, the Board of Election Supervisors said this request was rejected due to the holiday.
Instead, a machine recount was ordered.
"The recount’s ability to materialize six new ballots highlights the unreliability of a machine recount — the type of recount the Board insisted upon. The Board’s failure to perform a hand recount, despite numerous requests and the obvious statistical problems, is itself irregular and the error revealed therein also supports this Court’s ordering a new election," the brief stated.
In conclusion, Nickelson's counsel is requesting a new election. "This court must order a new election."
Read: Caddo Sheriff's Race recount is underway. Here's what you need to know.
Here's Whitehorn's response
Whitehorn's counsel filed his response Dec. 4. His response was a nine-page post-trail brief.
In opening statements, Whitehorn's response states that Nickelson did not produce any evidence that the votes cast for Sheriff were inaccurately recorded, nor did he produce evidence.
Response stated:
"No one-not the Caddo Parish Clerk of Court, Louisiana Secretary of State Commissioner of Elections, or members of the Caddo Parish Board of Elections Supervisors-could provide any evidence suggesting the Mr. Nickelson even attempted to challenge an absentee ballot prior to or during the election. Rather, Mr. Nickelson chose to wait and see if he won the election. Only after he lost the vote-twice-has he challenged the process."
Whitehorn's counsel argued that the laws controlling the integrity of elections and the overturning of elections results are clear. This argument was made in five claims.
These claims include lack of challenge for absentee ballots by Nickelson prior to election day, absentee ballots and voter qualifications are under the Louisiana Election code, Nickelson has not met the burden of proof, Nickelson's brief conflates his burden and Adkins v. Huckabay involved timely challenges to ballots.
According to the response, to challenge an absentee or early voting ballot, a candidate must challenge the vote by the fourth day before the election or on the election day.
Whitehorn's response stated, "it is of paramount importance that no testimony was offered suggesting that Mr. Nickelson complied with this requirement."
The response continued by stating that Nickelson's challenge to the absentee ballots and voter qualification was untimely under the Louisiana Election Code and interpretative jurisprudence.
Whitehorn's counsel argued that although Whitehorn is not an attorney he has 40 years of qualifying law enforcement experience. The argument further claimed that Nickelson has been elected to other offices and was waiting to see who won the vote before complaining about the process.
The response also argues that Nickelson did not introduce any evidence that would result in different outcomes with the twice confirmed votes.
"Mr. Nickelson has introduced no evidence suggesting that the issues of which he complains would have been sufficient to change the result had they not occurred, he cannot establish that the November 18, 2023, election should be nullified," the response stated.
In conclusion, Whitehorn's counsel stated no election for public office should be overturned in the absence of clear and compelling reason.
What happens now?
Bleich will take both briefs under consideration and is expected to make a ruling later this week.
Upon a decision, this case could be filed with the 2nd Circuit Court of Appeal then the Louisiana Supreme Court.
More: First day of court hearings for Caddo Parish Sheriff's election lawsuit ends. What’s next?
Makenzie Boucher is a reporter with the Shreveport Times. Contact her at mboucher@gannett.com.
This article originally appeared on Shreveport Times: Whitehorn files response to Nickelson's suit in Caddo sheriff election
