In a recent story in the Tyler Paper, Judge Joel Baker’s position was summarized as follows: 

“County Judge Joel Baker said the county is proceeding correctly and will implement the judgment rendered, be it calling another election or overturning the previous results.”

Judge Baker was responding to an allegation that the County was not even trying to defend the election or argue that a new election should not take place.  In responding, Judge Baker set out the position above.  This is very telling.  It says that Judge Baker saw only two possible results from the contest:  (1) calling a new election; or (2) declaring Winona wet.  He fails to even recognize that the court had a third option and that was to dismiss the election contest on the grounds that the contestant did not establish by clear and convincing evidence that the result would have changed.  Judge Baker seems to agree that was not an option which was in fact the exact criticism that was offered.

Judge Baker as representative of Smith County was the defendant in the case.  It was his job to defend the election result.  Stated another way, if the County wanted to have the result that reflected what actually happened then the county should have ensured that all of the available arguments were made to the visiting judge so that he could make an informed decision.

There were seven people identified.  Of the 7, three said they voted FOR the wet side.  The remaining four refused to say how they voted.  Of the four, one was registered at a residence in Winona.  He testified that he lived a lot with his girl friend, but he considered his permanent address as in the City limits of Winona.  He also testified that he still stayed there from time to time.  The Plaintiff asked that the court compel him to say how he testified, and the judge ruled that they had not met the statutory prerequisite to compel the witness to say.  The objection was not even made by the County.  Instead, it was made by the witness’ attorney.  The trial court asked the county if it had a position on the issue, and the county’s attorney said no. 

After a break, another witness was called to question where the witness lived at the time of the election.  However, no one argued to the court that an individual can have multiple residences.  It appeared that this voter did not break the law and voted properly. 

That left three voters who may have voted improperly.  The county presented no argument regarding these three witnesses and whether they may have voted properly.  Even though two of the witnesses formerly lived in Winona and then moved outside the city and a provision of the election code authorized them to continue to vote in their old precinct until their voter registration was updated, this argument was not presented to the trial court. 

Nevertheless, even it is assumed that all three voted AGAINST (which cannot be assumed), the result would have been three votes removed FOR and three votes removed AGAINST resulting in a continued tie again and the election contest should have failed because there was not clear and convincing evidence that the election result would have changed.

But these arguments were not presented by the county.  It was almost like the County wanted Winona to go WET.  The County Judge argued that the county was not taking a position, but it was incumbent on the County to ensure that all the facts were presented to the trial court.  It was almost like the County was working with the WET people not the City of Winona. 

Judge Baker’s position in the paper does nothing but underscore this conclusion.  By our review of the witnesses and their alliances before the election, our best guess is that of the 7 witnesses:  5 voted FOR and 2 voted AGAINST which would have been a victory for the DRY side.  But since no one was even arguing to ensure that all the facts were presented, the result was a new election.  It is a sad day for Winona when they cannot even get their elected officials to ensure that all of the facts are presented to the visiting judge so that he can make an informed decision.

Finally, there will be much talk about the 4 witnesses who took the 5th.  However, there is a procedure for forcing them to testify.  First, you get the D.A. or the Attorney General (in this case) to grant testimonial immunity for their testimony in the Election Contest case.  Second, you order them to then testify.  No one even attempted to do this.  The plaintiff did not because the WET people probably knew that if they did then they would risk losing (we believe based upon alliances before the election and because everyone knows everyone in the Winona area that 5 of the 7 ultimately voted FOR).  Additionally, it was the WET side that filed a criminal complaint in this case.  Therefore, it was the WET side that was putting these people in the position that they were forced to take the 5th.  So the WET side was rewarded for doing exactly what they did.  They forced the people to take the 5th and then got a new election out of it.