Roe v. Mobile County Appointing, Board (904 F. Supp. 1315, 1995)

OPINION & ORDER

HOWARD, District Judge.

The United States Court of Appeals for the Eleventh Circuit remanded this action to this Court for a trial on the merits. Roe v. State of Ala. by and through Evans, 52 F.3d 300 (11th Cir.1995). Pursuant to the remand of the Eleventh Circuit, this Court held a bench trial of this action beginning on September 18, 1995 and ending on September 20, 1995. Based on the evidence introduced at the temporary restraining order hearing (November 17, 1994), the preliminary injunction hearing (December 5, 1994), and at the trial, the Court makes the following Findings of Fact and Conclusions of Law.

I. FINDINGS OF FACT

The Eleventh Circuit ordered this Court to make findings of fact on seventeen issues. Roe, 52 F.3d at 302-303.

A. AGREED FACTS

The parties have stipulated to findings of fact for several of the issues. The “Agreed Facts” section of the Joint Pretrial Document list the stipulated findings. Joint Pretrial Document, pp. 9-12. This Court adopts the agreed facts as the findings of the Court. Said findings supply the answers to the following issues raised by the Eleventh Circuit:

10. The number of votes initially certified to the Secretary of State of the State of Alabama from each of Alabama’s sixty-seven counties in favor of Sonny Hornsby, the Democratic candidate for Chief Justice of the Supreme Court of Alabama. Roe, 52 F.3d at 302.

Answer: The number of votes initially certified to the Secretary of State of the State of Alabama from each of Alabama’s sixty-seven counties in favor of Sonny Hornsby are set out in Plaintiffs’ Exhibit 20A with the exception of Wilcox County. The number of votes from Wilcox County are set out in Plaintiffs’ Exhibit 22.

11. The number of votes initially certified to the Secretary of State of the State of Alabama from each of Alabama’s sixty-seven counties in favor of Perry O. Hooper, Sr., the Republican candidate for Chief Justice of the Supreme Court of Alabama. Id.

Answer: See Plaintiffs’ Exh. 20A and 21.

12. The number of votes initially certified to the Secretary of State of Alabama from each of Alabama’s sixty-seven counties in favor of candidates for Chief Justice other than Sonny Hornsby or Perry O. Hooper, Sr., if any. Id. at 303.

Answer: See Plaintiffs’ Exh. 20A and 21.

13. The number of votes initially certified to the Governor of the State of Alabama from each of Alabama’s sixty-seven counties in favor of Lucy Baxley, the Democratic candidate for Treasurer of the State of Alabama. Id.

Answer: The number of votes initially certified to the Secretary of State from each of Alabama’s sixty-seven counties in favor of Lucy Baxley, the Democratic candidate for treasurer, are set out in Plaintiffs’ Exhibit 20B.

14. The number of votes initially certified to the Governor of the State of Alabama from each of Alabama’s sixty-seven counties in favor of James D. Martin, the Republican candidate for Treasurer of the State of Alabama. Id.

Answer: See Plaintiffs’ Exh. 20B.

15. The number of votes initially certified to the Governor of the State of Alabama from each of Alabama’s sixty-seven counties in favor of candidates for Treasurer other than Lucy Baxley or James D. Martin, if any. Id.

Answer: See Plaintiffs’ Exh. 20B.

17. If any of the vote totals initially certified from each county contained contested absentee ballots, whether those contested absentee ballots are in any way physically separable from the larger pool of ballots, and, if not, whether there exists any other method, short of obtaining the testimony of each voter who cast a contested absentee ballot, of identifying and counting contested absentee ballots for purposes of determining the effect of the contested absentee ballots on the elections for the offices of Chief Justice and Treasurer. Id.

Answer: The parties agree that the initially certified vote totals of four eounties included votes from “contested absentee ballots.” Those counties are: Covington County, 11 contested absentee ballots; Randolph County, 5 votes; Washington County, 14 votes; Marion County, 19 votes. The contested ballots included in the above-listed vote totals are not physically separable from the larger pool of ballots, and there does not exist any method of identifying and counting such ballots, short of obtaining testimony from each voter who cast such a ballot.

B. REGULAR PRACTICE

The Eleventh Circuit ordered the Court to make Findings of Fact on six issues that address the practice of the sixty-seven counties with respect to contested ballots prior to the November 8, 1994 election. See Roe, 52 F.3d at 302 (issues 1-6). The Court makes the following Findings of Fact with regard to the practice in Alabama Counties prior to the November 8 election.

In support of their contention that the regular practice of Alabama counties prior to the November 8 election was to exclude contested absentee ballots, Plaintiffs offered the answers to the interrogatories propounded by this Court and the testimony of voting officials for many of the counties of Alabama, both live and by deposition.

1. Stipulated Interrogatories

Defendant Heliums Class (formerly Davis Class) stipulated to the admissibility of the answers to the interrogatories for twenty-four counties. The twenty-four counties are: Barbour (Plaintiffs’ Exh. 16.103), Bullock (Plaintiffs’ Exh. 16.106), Butler (Plaintiffs’ Exh. 16.107), Chilton (Plaintiffs’ Exh. 16.), Clarke (Plaintiffs’ Exh. 16.113), Cleburne (Plaintiffs’ Exh. 16.115), Coffee (Plaintiffs’ Exh. 16.116), Conecuh (Plaintiffs’ Exh. 16.118), Crenshaw (Plaintiffs’ Exh. 16.121), Cullman (Plaintiffs’ Exh. 16.122), Dallas (Plaintiffs’ Exh. 16.124), Dekalb (Plaintiffs’ Exh. 16.125), Geneva (Plaintiffs’ Exh. 16.131), Greene (Plaintiffs’ Exh. 16.132), Lee (Plaintiffs’ Exh. 16.141), Limestone (Plaintiffs’ Exh. 16.142), Lowndes (Plaintiffs’ Exh. 16.143), Madison (Plaintiffs’ Exh. 16.145), Mobile (Plaintiffs’ Exh. 16.149), Monroe (Plaintiffs’ Exh. 16.150), Morgan (Plaintiffs’ Exh. 16.152), Pickens (Plaintiffs’ Exh. 16.154), Russell (Plaintiffs’ Exh. 16.157), Shelby (Plaintiffs’ Exh. 16.159), and Walker (Plaintiffs’ Exh. 16.164). The Court has reviewed these counties’ answers to the interrogatories and, based on those answers, the Court makes the following findings:

1. The extent to which, if at all, ballots such as the ballots at issue in this case were regularly excluded from the vote count in Alabama counties prior to the November 8 election. Roe, 52 F.3d at 302.

The Court FINDS that for the above-listed, twenty-four counties the regular practice prior to the November 8 election was TO EXCLUDE ballots such as the contested absentee ballots.

8. Whether county voting officials charged with running the elections instructed prospective voters that ballots such as the contested absentee ballots might be counted and, if so, the extent of this practice on the part of county voting officials. Id.

The Court FINDS that NO county voting official charged with running the election in the above-listed, twenty-four counties instructed prospective voters that ballots such as the contested absentee ballots might be counted.

16. Whether any of the vote totals initially certified from any county contained any contested absentee ballots. Id. at 303.

The Court FINDS none of the vote totals initially certified from the above-listed, twenty-four counties contained any contested absentee ballots.

2. Contested Evidence

Defendant Heliums contested the evidence presented by Plaintiffs with regard to the remaining forty-three counties. Defendant Heliums raised the following general objections to the remaining answers to interrogatories: hearsay and not the best evidence. The Court overruled the Heliums objections to all of the answers except for the answers submitted on behalf of Sumter County. The Court did sustain some objections to the answers to certain questions submitted by some of the counties. However, the majority of the interrogatories were admitted in their entirety. The Court FINDS that such interrogatories are exceptions to the hearsay rule under Rule 803(24). The Court FINDS that the answers have “equivalent circumstantial guarantees of trustworthiness” and that Plaintiffs introduced the answers as evidence of a material fact, the answers are more probative on the point for which it is offered than any other evidence, and the general purposes of the Federal Rules of Evidence will best be served by the admission of the answers. The record is clear that Defendant Heliums contends that the best evidence to answer the Eleventh Circuit’s questions is the actual affidavit envelope. This Court explained its finding that the actual envelopes are irrelevant to the questions propounded by the Eleventh Circuit in this Court’s “Response to the Petition for Writ of Mandamus.” The Court adopts said Response as the holding of this Court on the issue of Heliums’s objection to the answers to interrogatories as not the best evidence. See Addendum A to this Opinion. In addition to the Court’s earlier reasoning, the Court notes that with the exception of Washington County, Heliums failed to produce a scintilla of evidence that any county regularly counted ballots such as the contested ballots prior to the November 8 election.

The Court makes the following findings with regard to the remaining forty-three counties:

1. Washington County: The only evidence introduced on the issue of the practice in Washington County was the answers to interrogatories as completed by Steven Grimes, Circuit Clerk of Washington County. (Plaintiffs’ Exh. 16.165). Mr. Grimes won his seat in the November 8 election and, therefore, relied on Sheriff William Wheat and absentee poll worker Dorothy Sheffield for information on the practice of Washington County. Based on the answers of Washington County, the Court FINDS

a. Washington County regularly COUNTED ballots such as the contested absentee ballots prior to the November 8 election.

b. Washington County COUNTED ballots such as the contested absentee ballots on November 8.

c. A reasonable voter WOULD NOT HAVE KNOWN that ballots such as the contested absentee ballots might be counted. The Court makes this finding based on the answer to interrogatory 13 that states that no officials charged with running the elections in Washington County instructed voters that unwitnessed or unnotarized ballots would or might be counted. Therefore, a reasonable voter would look to the affidavit on the absentee envelope, which reads: “Note: Your signature must be witnessed by either: A notary public or other officer authorized to acknowledge oaths or two witnesses 18 years of age or older.” Ala.Code § 17-10-7 (1975). The Court finds that a reasonable voter, without contrary official instruction, would have known that such language is a mandatory requirement and that their vote would not be counted unless their signature had been witnessed by two adult witnesses or notarized.

d. The percentage of total votes for statewide office cast by absentee ballot (both contested and other) in the November 8 election: 2.9%

e. The percentage of total votes cast by contested absentee ballot in the November 8 election: 0.2%

f. The percentage of the total votes for statewide office cast by absentee ballot (whether the affidavit was complete or not) in the previous two elections for statewide office: 2.7%.

g. As stated above, the Court FINDS that no Washington County voting official charged with running the elections instructed prospective voters that ballots such as the contested absentee ballots might be counted.

h. The vote total initially certified from Washington County to the Secretary of State for the November 8, 1994 general election, included contested ballots. The Court FINDS that Washington County does not have a reliable vote total that does not include the contested ballots.

i. The Court FINDS that the number of contested absentee ballots contained in Washington County’s initial vote total is 14.

j. The contested absentee ballots are in no way physically separable from the larger pool of ballots and there is no method, short of obtaining the testimony of each voter who east such a ballot, of identifying and counting contested absentee ballots for purposes of determining the effect of the contested absentee ballots on the elections for the offices of Chief Justice and Treasurer.

2. Autauga County: Based upon the answers to the interrogatories completed by Fred Posey, Circuit Clerk of Autauga County from 1941 to present except for three years of military service in World War II, (Plaintiffs’ Exh. 16.101) and the live testimony of Rick Allen, absentee ballot official for the past twenty years including 1994, the Court FINDS:

a. Autauga County regularly EXCLUDED ballots such as the contested ballots from the vote count prior to the November 8 election.

b. Autauga County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

e. Autauga County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

3. Baldwin County: Based upon the answers to the interrogatories, as amended, completed and amended by Jackie Calhoun (Plaintiffs’ Exh. 16.102), Circuit Clerk of Baldwin County from 1989 to present, and upon Ms. Calhoun’s testimony at trial, the Court FINDS:

a. Baldwin County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Baldwin County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Baldwin County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

4. Bibb County: Based upon the answers to interrogatories completed by John H. Stacey, Circuit Clerk of Bibb County elected in 1994, (Plaintiffs’ Exh. 16.104), the testimony at trial of Merita Suttle, absentee official for ten years prior to 1994, and the testimony at trial of Kathleen Vanderford, absentee official for five years prior to and including 1994, the Court FINDS:

a. Bibb County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Bibb County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Bibb County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

5. Blount County: Based upon the answers to the interrogatories completed by Michael Criswell (Plaintiffs’ Exh. 16.105), Circuit Clerk of Blount County from 1989 to present, and upon the testimony at trial of John Green, absentee election manager for every election from 1977 to 1989, the Court FINDS:

a. Blount County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Blount County voting officials never instructed prospective votes that ballots such as the contested ballots might be counted.

c. Blount County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

6. Calhoun County: Based upon the answers to the interrogatories completed by Ted Hooks (Plaintiffs’ Exh. 16.108), Circuit Clerk of Calhoun County elected in 1994, and the testimony at trial of Maurice Forsyth, absentee election official for approximately ten years including the 1994 election, the Court FINDS:

a. Calhoun County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Calhoun County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Calhoun County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

7. Chambers County: The Court sustained Defendant Heliums’s hearsay objection to all of the answers to the interrogatories with the exception of answers to interrogatories 8, 9, and 10 (Plaintiffs’ Exhibit 16.109). Therefore, based upon the answers to interrogatories 8, 9, and 10 completed by Charles Story, Circuit Clerk of Chambers County elected in 1994, the testimony at trial of Julia Stewart, absentee counter for 1992 and 1994 elections, and the testimony at trial of Stella Pierce, Circuit Clerk of Chambers County from 1964 to 1991, the Court FINDS:

a. Chambers County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Chambers County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Chambers County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

8. Cherokee County: Based upon the answers to the interrogatories completed by Carolyn Smith (Plaintiffs’ Exh. 16.110), Circuit Clerk for Cherokee County from 1989 to present, the Court FINDS:

a. Cherokee County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Cherokee County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Cherokee County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

9. Choctaw County: The Court sustained Defendant Heliums’ hearsay objection to the answer to interrogatory 8 of the interrogatories propounded to the Circuit Clerk of Choctaw County. However, based upon the answers to all interrogatories except the answer to number 8, completed by Donald Gibson (Plaintiffs’ Exh. 16.112), Circuit Clerk for Choctaw County from 1979 to present and the testimony at trial of LeAndrew Woods, absentee election official since 1984, the Court FINDS:

a. Choctaw County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Choctaw County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

e. Choctaw County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

10. Clay County: Based upon the answers to the interrogatories completed by Jeff Colburn (Plaintiffs’ Exh. 16.114), Circuit Clerk for Clay County elected in 1994, and the testimony at trial of Pat Allen, absentee election official since 1984, the Court FINDS:

a. Clay County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Clay County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Clay County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

11. Colbert County: Based upon the answers to the interrogatories completed by C. Phillip Bowling (Plaintiffs’ Exh. 16.117), Circuit Clerk for Colbert County from 1988 to present, the Court FINDS:

a. Colbert County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Colbert County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Colbert County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

12. Coosa County: Based upon the answers to the interrogatories completed by Gerald Parker (Plaintiffs’ Exh. 16.119), Circuit Clerk for Coosa County from 1977 to present, and the testimony introduced by deposition of Mr. Parker, Cordelia Gandy, an employee of the Circuit Clerk’s Office who has worked in ten elections over the last twenty-one years, and Melinda Brown, Probate Judge of Coosa County since 1985, the Court FINDS:

a. Coosa County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Coosa County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

e. Coosa County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

13. Covington County: Based upon the answers to the interrogatories completed by Roger Powell (Plaintiffs’ Exhibit 16.120), Circuit Clerk for Covington County from 1989 to present and the testimony introduced by deposition of Mr. Powell, the Court FINDS:

a. Covington County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Covington County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Covington County INCLUDED eleven (11) contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election,

i. Covington County does not have a reliable vote total that does not include votes from contested ballots.

d. The contested absentee ballots are in no way physically separable from the larger pool of ballots and there is no way, short of obtaining the testimony of each voter who east a contested ballot, of identifying and counting contested absentee ballots for purposes of determining the effect of the contested ballots on the elections for the offices of Chief Justice and Treasurer.

14. Dale County: Based upon the answers to the interrogatories, as amended, completed and amended by Mary Bludsworth (Plaintiffs’ Exh. 16.123), Circuit Clerk for Dale County elected in 1994, and the testimony at trial of Celeste Sneed, absentee ballot official for Dale County since 1975, the Court FINDS:

a. Dale County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Dale County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Dale County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

15. Elmore County: Based Upon the answers to the interrogatories completed by Larry Dozier, Circuit Clerk for Elmore County elected in 1994, and the testimony at trial of Joy Hill, absentee ballot official since 1988, the Court FINDS:

a. Elmore County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Elmore County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

e. Elmore County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

16. Escambia County: Based upon the answers to the interrogatories, as amended, completed and amended by James Taylor (Plaintiffs’ Exh. 16.127), Circuit Clerk of Escambia County elected in 1994, the testimony at trial of Marquettia Chapellia, absentee ballot official for the past ten years not including 1994, and Vera Wilkerson, absentee ballot official for 1994, the Court FINDS:

a. Escambia County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Escambia County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Escambia County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

17. Etowah County: Based upon the answers to the interrogatories completed by Billy Yates (Plaintiffs’ Exh. 16.128), Circuit Clerk for Etowah County from 1983 to present, and the testimony at trial by Zane Smith, absentee ballot clerk for the 1994 general election, the Court FINDS:

a. Etowah County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Etowah County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Etowah County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

18. Fayette County: Based upon the answers to the interrogatories completed by J. Eddy Smith (Plaintiffs’ Exh. 16.129), Circuit Clerk for Fayette County elected in 1994, and the testimony at trial of Jesse Cotton, an election official since 1934 and an absentee election official since 1975, the Court FINDS:

a. Fayette County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Fayette County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

e. Fayette County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

19. Franklin County: Based upon the answers to the interrogatories completed by J.T. Newton (Plaintiffs’ Exh. 16.130), Circuit Clerk for Franklin County from 1991 to present, and the testimony at trial of Danny Brown, absentee ballot inspector for the 1992 and 1994 elections, the Court FINDS:

a. Franklin County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Franklin County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Franklin County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

20. Hale County: Based upon the answers to the interrogatories, as amended, completed and amended by Betty Gayle Pate (Plaintiffs’ Exh. 16.133), Circuit Clerk for Hale County from 1989 to present, and the testimony at trial of Ruth Gates, absentee official since 1970, the Court FINDS:

a. Hale County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Hale County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Hale County did not include any contested ballots in their initial certification to the Secretary of State, for the November 8, 1994, general election.

21. Henry County: Based upon the answers to the interrogatories completed by Connie Burdeshaw (Plaintiffs’ Exh. 16.134), Circuit Clerk for Henry County from 1983 to present, the Court FINDS:

a. Henry County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Henry County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Henry County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

22. Houston County: The Court sustained Defendant Heliums’ “improper conclusion” objection to the answer to interrogatory 8 of the interrogatories propounded to the Circuit Clerk of Houston County. However, based upon the answers to the interrogatories, with the exception of answer 8, completed by Judy Byrd (Plaintiffs’ Exh. 16.135), Circuit Clerk for Houston County from 1993 to present, and the testimony at trial of Quay Fortner, absentee ballot official for the last forty years including 1994, the Court FINDS:

a. Houston County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Houston County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Houston County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

23. Jackson County: The answers to interrogatories turned in by Jackson County are incomplete. Circuit Clerk Leonard Griggs, Clerk from 1983 to present, did not answer any of the interrogatories. The Court makes no findings based upon Plaintiffs’ Exhibit 16.136. However, based upon the testimony introduced by deposition of Polly Long, an absentee official for approximately seven years including 1994, and of Judge Robert Gentry, Probate Judge for Jackson County for the last thirty-six years, not including 1994, the Court FINDS:

a. Jackson County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Jackson County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Jackson County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

24. Jefferson County (Birmingham Division and Bessemer Division): Based upon the answers to the interrogatories completed by Polly Conradi (Plaintiffs’ Exh. 16.137A), Circuit Clerk for the Jefferson County Birmingham Division from 1976 to present, and the answers to the interrogatories completed by Earl Carter, Jr. (Plaintiffs’ Exh. 16.136B), Circuit Clerk for Jefferson Count Bessemer Division from 1989 to present, the Court FINDS:

a. Jefferson County (Birmingham and Bessemer Divisions) regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Jefferson County (Birmingham and Bessemer Divisions) voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Jefferson County (Birmingham and Bessemer Divisions) did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

25. Lamar County: Based upon the answers to the interrogatories completed by Curtis Graham (Plaintiffs’ Exh. 16.138), Circuit Clerk for Lamar County elected in 1994, and the testimony at trial of Alex Brown, attorney for the Lamar County Appointing Board since 1978, the Court FINDS:

a. Lamar County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Lamar County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Lamar County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

26. Lauderdale County: Based upon the answers to the interrogatories completed by Kenneth Austin (Plaintiffs’ Exh. 16.139), Circuit Clerk for Lauderdale County from 1983 to present, the Court FINDS:

a. Lauderdale County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Lauderdale County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Lauderdale County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

27. Lawrence County: The Court sustained Defendant Hellums’s hearsay objection to all of the answers to interrogatories completed by Lawrence County. However, based upon the testimony at trial of Joyce Sanford, absentee election official for approximately twenty years including 1994, and Edwina Jackson, absentee election official for approximately twenty years including 1994, the Court FINDS:

a. Lawrence County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Lawrence County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Lawrence County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

28. Lowndes County: Based upon the answers to the interrogatories completed by Naomi Gibson-Pritchett (Plaintiffs’ Exh. 16.143), Circuit Clerk for Lowndes County, elected in 1994, Ms. Gibson-Pritehett’s letter to Deputy Attorney General William Pryor, Jr. (Defendant Hellums’s Exh. 23), the testimony at trial of Voncile Strickland, absentee ballot official since 1982, and the testimony at trial of Mattie Taylor-Peterson, absentee ballot official prior to and including 1994, the Court FINDS:

a. Lowndes County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Lowndes County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Lowndes County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

29. Macon County: Based upon the answers to the interrogatories completed by Eddie Mallard (Plaintiffs’ Exh. 16.144), Circuit Clerk for Macon County from 1977 to present, the Court FINDS:

a. Macon County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Macon County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Macon County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994 general election.

30. Marengo County: Based upon the answers to the interrogatories completed by Rusty Nichols (Plaintiffs’ Exh. 16.146), Circuit Clerk for Marengo County, elected in 1994, and the testimony at trial of Vicki Barnes, absentee election official for 1994, the Court FINDS:

a. Marengo County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Marengo County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Marengo County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

31. Marion County: Based upon the answers to the interrogatories completed by James Garrard (Plaintiffs’ Exh. 16.147), Circuit Clerk for Marion County from 1989 to present, and the testimony introduced by deposition of Mr. Garrard, the Court FINDS:

a. Marion County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Marion County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Marion County INCLUDED nineteen (19) contested ballots in their initial certification to the Secretary of State for the November 8, 1994 general election,

i. Marion County does not have a reliable vote total that does not include votes from contested ballots.

d. The contested absentee ballots are in no way physically separable from the larger pool of ballots and there is no way, short of obtaining the testimony of each voter who cast a contested ballot, of identifying and counting contested absentee ballots for purposes of determining the effect of the contested ballots on the elections for the offices of Chief Justice and Treasurer.

32. Marshall County: Based upon the answers to the interrogatories completed by Sherry Ussery (Plaintiffs’ Exh. 16.148), Circuit Clerk for Marshall County, elected in 1994, and the testimony at trial of Louise Sahag, absentee election official since 1970, the Court FINDS:

a. Marshall County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Marshall County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Marshall County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

33. Montgomery County: Based upon the answers to the interrogatories completed by Debra Hackett (Plaintiffs’ Exh. 16.151), Circuit Clerk for Montgomery County from 1983 to present, and the testimony introduced by deposition of Ms. Hackett, the Court FINDS:

a. Montgomery County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Montgomery County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Montgomery County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

34. Perry County: The answers to the interrogatories propounded to Perry County and completed by Mary Moore (Plaintiffs’ Exh. 16.153), Circuit Clerk for Perry County, are incomplete. However, based upon the answers that are complete, the Court FINDS:

a. Perry County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Ms. Moore did not answer interrogatory 13, therefore, the Court makes NO FINDING with regard to what Perry County voting officials may or may not have instructed prospective voters with regard to ballots such as the contested ballots.

c. Perry County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

35. Pike County: Based upon the answers to the interrogatories, as amended, completed and amended by Brenda Peacock (Plaintiffs’ Exh. 16.155), Circuit Clerk for Pike County from 1989 to present, and the testimony at trial of Rudolph Shelly, absentee election official for twelve years prior to and including 1994, the Court FINDS:

a. Pike County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Pike County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Pike County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

86. Randolph County: Based upon the answers to the interrogatories completed by Kim Benefield (Plaintiffs’ Exh. 16.156), Circuit Clerk for Randolph County from 1988 to present, the Court FINDS:

a. Randolph County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Randolph County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Randolph County INCLUDED five (5) contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

i. Randolph County does not have a reliable vote total that does not include votes from contested ballots.

d. The contested absentee ballots are in no way physically separable from the larger pool of ballots and there is no way, short of obtaining the testimony of each voter who cast a contested ballot, of identifying and counting contested absentee ballots for purposes of determining the effect of the contested ballots on the elections for the offices of Chief Justice and Treasurer.

37. St. Clair County: Based upon the answers to the interrogatories, as amended, completed and amended by Jean Browning (Plaintiffs’ Exh. 16.158), Circuit Clerk for St. Clair County from 1989 to present, the Court FINDS:

a. St. Clair County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. St. Clair County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. St. Clair County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

38. Sumter County: The Court sustained Defendant Heliums’s hearsay objection to all of the answers to the interrogatories completed by Sumter County. However, based upon the testimony introduced by deposition of Carole Smith, Circuit Clerk of Sumter County from 1991 to January, 1995, Deputy Circuit Clerk from 1978 to 1991, the Court FINDS:

a. Sumter County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Sumter County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Sumter County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994 general election.

39. Talladega County: Based upon the answers to the interrogatories, as amended, completed and amended by Clarence Haynes (Plaintiffs’ Exh. 16.161), Circuit Clerk for Talladega County, elected in 1994, and the testimony at trial of Joanna Johnson, absentee election official for fifteen years prior to and including 1994, the Court FINDS:

a. Talladega County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Talladega County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Talladega County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

40. Tallapoosa County: Based upon the answers to the interrogatories completed by Frank Lucas (Plaintiffs’ Exh. 16.162), Circuit Clerk for Tallapoosa County from 1989 through 1994, the testimony at trial of Wade Acton, the current Circuit Clerk and an absentee election official for three elections pri- or to 1994, the affidavit of Wade Acton signed on June 2,1995 (Defendant Heliums’s Exh. 47), and the testimony at trial of Wayne Thompson, absentee election official for approximately twenty years including 1994, the Court FINDS:

a. Tallapoosa County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Tallapoosa County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Tallapoosa County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

41. Tuscaloosa County: Based upon the answers to the interrogatories, as amended, completed and amended by Doris Turner (Plaintiffs’ Exh. 16.168), Circuit Clerk for Tuscaloosa County from 1977 to present, and the testimony at trial of Ike Espy, absentee election official since 1974, the Court FINDS:

a. Tuscaloosa County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Tuscaloosa County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Tuscaloosa County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

42. Wilcox County: Based upon the answers to the interrogatories completed by Willie Powell (Plaintiffs’ Exh. 16.166), Circuit Clerk for Wilcox County from 1983 to present, and the testimony at trial of Sandra Henderson, absentee election official for approximately twelve years including 1994, the Court FINDS:

a. Wilcox County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Wilcox County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

c. Wilcox County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

43. Winston County: Based upon the answers to the interrogatories completed by W.F. Bailey (Plaintiffs’ Exh. 16.167), Circuit Clerk for Winston County from 1989 to present, the Court FINDS:

a. Winston County regularly EXCLUDED ballots such as the contested absentee ballots from the vote count in elections prior to the November 8 election.

b. Winston County voting officials never instructed prospective voters that ballots such as the contested ballots might be counted.

e. Winston County did not include any contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election.

The Court FINDS that it was the regular practice of the counties of Alabama, except for Washington County, to regularly EXCLUDE ballots such as the contested absentee ballots from the vote count in elections prior to November 8, 1994. The Court FINDS that four counties included a total of forty-nine (49) ballots such as the contested ballots in their initial certification to the Secretary of State for the November 8, 1994, general election. The Court FINDS that none of the four counties that included contested ballots have reliable vote totals that do not include votes that came from contested ballots. Finally, the Court FINDS that no voting official in any of the sixty-seven counties of Alabama ever instructed any prospective voter that a ballot such as the contested absentee ballots might be counted.

C. POSITIONS OF STATE OFFICIALS

7. Whether state officials such as the At torney General of Alabama or the Secretary of State of Alabama have taken consistent positions regarding whether ballots such as the contested absentee ballots are to be counted or excluded and, if so, the form in which such positions were communicated to the average voter or county voting official and the time at which such positions were taken.

Roe, 52 F.3d at 302.

The Court makes the following findings of fact with regard to the positions taken by the Secretaries of State and Attorneys General of Alabama from 1980 through November 8, 1994.

1. Jim Bennett

a. Secretary of State 1993 to present

Secretary Bennett testified at the hearing on the Preliminary Injunction held on December 5, 1994. Secretary Bennett testified that it is his practice to rely on opinions of the Attorney General and that to his knowledge Secretaries of State previous to his term also relied on opinions of the Attorney General. (R. at 50). Secretary Bennett testified that previous Secretaries relied on the opinion of Attorney General Charles A. Grad-dick, dated September 12, 1980 (Plaintiffs’ Exh. 7). (R. at 50). Said opinion states in pertinent part:

If, upon examination, the affidavit obviously does not comply with Alabama law; that is, if it is not properly witnessed or notarized, is not signed by the voter, or does not otherwise contain sufficient information to determine that the person is a qualified elector and is entitled to vote absentee, the ballot should not be counted.

Attorney General’s opinion 80-0051, p. 3. Secretary Bennett relied on the above-cited Opinion to help prepare the Sixth Edition of the Alabama Election Handbook (Plaintiffs’ Exh. 8). (R. at 51-52). The Manual quotes the above language from opinion 80-0051 on page 257 of the Manual. Secretary Bennett testified that the Manual is meant to be distributed to county election officials. (R. at 53) . Secretary Bennett testified that “[i]t is my understanding that ballots that are not witnessed by two people over the age of 18 or notarized are not counted____” (R. at 54) .

Significantly, Secretary Bennett testified:

Q. So is it your testimony, Mr. Bennett, that the practice with regard to the counting of absentee ballots that neither have notarized signatures or witnessed signatures has been consistent since at least 1980 until the announcement of the order by Judge Reese in the ease of Odom versus Bennett in the Montgomery County Circuit Court?

A. It is my understanding that ballots that are not witnessed by two people over the age of 18 or notarized are not counted prior to the Montgomery County court case.

(R. at 54). Judge Reese entered his Order on November 17, 1994, six days after the November 8, 1994 general election.

The Court FINDS that the position of Secretary of State Bennett is and was that ballots such as the contested absentee ballots were not to be counted. The Court FINDS that the source for the distribution of such information was the Sixth Edition of the Alabama Election Handbook.

Secretary Bennett ran as a Democrat in the General Election of November 8, 1994, along with Democrats Sonny Hornsby and Don Siegelman, and although he was placed in an awkward position in this litigation, and was subjected to lengthy examination and cross-examination, the Court was impressed with the candor and straightforwardness of Secretary Bennett in responding to all questions, including those posed to him by the Court. In short, the Court found Secretary Bennett’s testimony to be entirely credible.

2. Charles Graddick

a. Attorney General 1979-1987

Former Attorney General Charles Grad-dick testified at trial. General Graddick confirmed the position stated in his Attorney General opinion 80-0051. General Graddick testified that it was his understanding that ballots such as the contested absentee ballots should not be counted. Graddick testified that he distributed this information by means of his opinion and by a memorandum prepared by General Graddick and Secretary of State Don Siegelman dated August 12, 1980 (Plaintiffs’ Exh. 65).

The Court FINDS that Attorney General Graddick’s unequivocal position is that ballots such as the contested absentee ballots were not to be counted. The Court FINDS that General Graddick distributed this information through both his Attorney General’s opinion and the memorandum of August 12, 1980 authored jointly with then Secretary of State Don Siegelman.

3. Don Siegelman

a. Secretary of State 1979 to 1987

b. Attorney General 1987 to 1991

Defendant Heliums called Lieutenant Governor Don Siegelman to testify as to the position his office took when he was Secretary of State and when he was Attorney General. Governor Siegelman testified that he had no knowledge of the practice of any of the election officials in any of the counties of Alabama as such practice related to absentee ballots such as the contested absentee ballots. Lieutenant Governor Siegelman testified that his understanding of the law was that an absentee ballot accompanied by an affidavit envelope that lacked the voter’s signature or that was signed but either: (1) was not properly notarized; or (2) was not properly witnessed by two adult witnesses was as follows:

1. The absentee voting official who discovered the incomplete affidavit would first determine whether the putative voter was on the absentee voter register. If not the ballot should have been discarded.

2. If the voter’s name was on the register the absentee ballot official should stamp the ballot “Challenged” and then place the ballot in the box to be counted.

3. Any counted ballots stamped “Challenged” should be forwarded to the county’s district attorney’s office for an investigation.

Lieutenant Governor Siegelman had no recollection of ever instructing any voting official to take the above-listed actions when faced with an unsigned or unnotarized or unwitnessed ballot.

On August 12, 1980, then Secretary of State Siegelman and Attorney General Charles Graddick sent a memorandum to “all Circuit Clerks and Registers” concerning absentee voting. (Plaintiffs’ Exh. 65). Page 3 of the memorandum states in pertinent part:

If the ballot does not comply with Alabama law, i.e., it is not properly witnessed or notarized; not signed by the voter, or does not otherwise contain sufficient information to determine that such person is a qualified elector and entitled to vote absentee, the ballot should not be counted. In most other eases, when a ballot is challenged, the ballot should be counted; the affidavit, however, should be marked challenged with the basis of the challenge listed and turned over to the District Attorney for investigation.

Lieutenant Governor Siegelman testified that such language expressed his understanding and is not contradictory to his present position. The Court FINDS his testimony to be diametrically opposed to the instructions he issued to election officials while he was Secretary of State and there is no credible evidence he ever communicated his current position to anyone while he was Secretary of State. He failed to provide a rational explanation of his present position and the Court found his testimony to be unworthy of belief. The memorandum instructs “Circuit Clerks and Registers” not to count ballots that do not comply with Alabama law, that is, ballots which are not signed by the voter, are not witnessed by two witnesses or notarized, and Lieutenant Governor Siegelman’s efforts to change the import of such instructions are incredible.

Lieutenant Governor Siegelman also testified about the instructions contained in the State of Alabama Election Officials’ Handbook produced by Dr. Robert S. Mountjoy, Office of Public Service and Research, Auburn University (Plaintiffs’ Exh. 64). Governor Siegelman testified that his office worked with Dr. Mountjoy in preparing the Handbook and that the Secretary of State’s Office distributed the Handbook to the election officials' in all sixty-seven counties. The Handbook states on p. 7-6 in pertinent part:

If, upon examination, the affidavit obviously does not comply with Alabama law; that is, if it is not properly witnessed or notarized, is not signed by the voter, or does not otherwise contain sufficient information to determine that the person is a qualified elector and is entitled to vote absentee, the ballot should not be counted.

Again, he testified that the above-cited language does not mean what it clearly states, but insisted that it matched his present interpretation. However, he pointed out that he had no idea how the election officials interpreted such Handbook. The Court FINDS Siegelman’s testimony with regard to the Alabama Election Officials’ Handbook, prepared by Dr. Mountjoy to be unbelievable.

Finally, Lieutenant Governor Siegelman testified about the Alabama Election Handbook prepared by the Alabama Law Institute. The Third and Fourth Editions of the Handbook were published and distributed during Governor Siegelman’s terms as Secretary of State and the Fifth Edition was published and distributed during his term as Attorney General. See Plaintiffs’ Exh. 23. The Third Edition went to all probate judges and to each member of the Legislature and the Fourth and Fifth Editions were distributed to all sheriffs, in addition to probate judges and members of the Legislature. The “Foreword” to the Third Edition states that “the reorganization of this book emanated from a suggestion of Don Siegelman, Alabama Secretary of State----” (Plaintiffs’ Exh. 24). All three editions distributed during Siegelman’s tenure state in pertinent part:

NOTE: ALL PERSONS VOTING BY ABSENTEE BALLOT MUST HAVE THEIR BALLOTS NOTARIZED BY A NOTARY PUBLIC OR ANYONE AUTHORIZED TO NOTARIZE DOCUMENTS OR TWO WITNESSES 18 YEARS OR OLDER. OTHERWISE, THE BALLOT WILL NOT BE COUNTED.

(Plaintiffs’ Exhibits 24, 25, and 26) (uppercase in original).

Lieutenant Governor Siegelman testified that he had no recollection of ever having seen any of the three Handbooks. He testified that his office worked closely with Dr. Mountjoy and Lieutenant Governor Siegelman “did not trust” the work coming out of the Alabama Law Institute. Lieutenant Governor Siegelman testified that had anyone asked him about the Handbooks prepared by the Alabama Law Institute, he would have instructed them not to rely upon them. However, he never told any election official not to rely on the Handbook. Furthermore, Lieutenant Governor Siegelman claimed to have no knowledge that the Alabama Law Institute is a body created by statute “as an official advisory law revision and law reform agency of the state of Alabama.” Ala.Code § 29-8-1 (1975). In addition, he was on the governing body of the institute as the Attorney General of Alabama. Id. The Court FINDS Lieutenant Governor Siegelman’s testimony with regard to the Alabama Election Handbook bizarre. While the Court recognizes that as an elected official Governor Siegelman has been a part of many organizations that may not have come to his attention, it stretches credibility to assert that, as Chief Election Official of the State of Alabama, he was completely unaware of this publication.

The Court FINDS that as Secretary of State and Attorney General, Siegelman took the position that unnotarized or unwitnessed absentee ballots should not be counted. The Court further FINDS that he communicated this information by way of Dr. Mountjoy’s Handbook, the memorandum dated August 12, 1980, and by the three editions of the Alabama Election Handbook.

4. Billy Joe Camp

a. Secretary of State 1991-1993

Billy Joe Camp’s testimony was introduced through deposition. Mr. Camp testified that the position his office maintained was the same as that testified to by Lieutenant Governor Siegelman. However, Mr. Camp could cite no instructions to any voting official that ballots not properly witnessed or notarized should be counted. The Court FINDS that even if Billy Joe Camp took the position he claims to have taken as Secretary of State, such position was not communicated to the average voter or to county voting officials. The Court FINDS that voting officials were guided by the written instructions distributed by the Office of Secretary of State Camp and not by his subsequent testimony concerning unwitnessed, unnotarized ballots.

5. Glenn Browder (Secretary of State 1988-1989)

Perry Hand (Secretary of State 1989-1991)

No evidence was introduced to indicate that Mr. Browder or Mr. Hand held positions inconsistent with that of Mr. Bennett. The only evidence introduced with respect to either of these Secretaries were the Alabama Voter Information Guides (Defendant Hellums’s Exh. 48, 49). Both Guides state in pertinent part: “sign your name or make your mark (which must be witnessed) on the absentee ballot application.” The Court FINDS that Secretaries Browder and Hand took positions consistent with the position of Secretary of State Bennett.

6. Jimmy Evans (Attorney General 1992-1994)

No evidence was introduced concerning the position taken by General Evans and the Court makes no finding with regard to such.

7. Further Evidence of Officials’ Positions

The deposition testimony of Judge Robert Gentry provided further evidence of the consistent position taken by the Secr