The challenge to Tony Riley's run for Chatham County Commissioner:
"ARE YOU eligible to run for District 2 County Commissioner?" I asked Tony Riley, the Democratic candidate.
He said: “Yes I am.”
The Chatham County Elections Board disagrees, at least preliminarily. On October 12, 2020, the board voted 3-2 to challenge Riley’s eligibility. Chairman, Thomas Mahoney III, a local attorney, cast the tie-breaker, the other four board members having split the vote, 2-2. The Board will hold a formal hearing to determine Riley’s qualifications on October 27.
The basis for the Board’s initial ruling was that 10 years had not elapsed since Riley completed his sentence for a felony drug conviction.
“[Riley’s] sentence was November 1, 2011 and reduced to time served plus ten days, which makes it November 10, 2011 – less than the ten years required to be qualified,” Mahoney pointed out.
While Riley admits 10 years haven’t passed, he contends he was never convicted of a felony involving moral turpitude.
Democratic Board members Antwan Lang and Malinda Hodge voted “no.”
They told me that their concerns related to the precedential nature of the process and its fairness. Before voting, Lang sought legal advice on the meaning of “moral turpitude,” the ability of the Board to call witnesses and subpoena documents, and the effect of disqualification this late stage in the election. Hodge had unanswered legal questions too, stating that her lay reading of the law suggested that the Board’s ability to challenge candidacy existed only up until a candidate had been elected by their party. She realizes though that it’s her duty to consider the merits next go-around, when a county attorney will be present.
Mahoney was prepared to hold the hearing immediately, but agreed to give Riley and his attorney more time to prepare their defense.
Meanwhile, early voting in Chatham County started the same day the Board issued its ruling. For now, Riley remains on the ballot, opposite Republican candidate Larry “Gator” Rivers, a former Harlem Globetrotter.
The Qualification Process
Candidates for office qualified in early March by establishing residency in their district, paying a $750 fee, and filing a sworn affidavit with the local offices of the Democratic and Republican parties.
The sworn affidavit contains various representations, including an acknowledgement that the prospective candidate has not been convicted of any “felony involving moral turpitude.” And, if so, that the candidate’s civil rights have been restored and at least 10 years have elapsed since completion of the sentence, without a subsequent felony conviction. These eligibility requirements come straight from the Georgia Constitution and Georgia Code. (Similar provisions restrict the voting rights of felons.)
Rivers ran unopposed during the June 9 primary election. In a three-way race for the Democratic spot, no candidate – Clinton Edminster, Michael Hamilton, or Tony Riley – received at least 50% of the vote. So Edminster and Riley, the top two contenders, headed to an August 11 runoff. Riley won.
“I was surprised at how simple the process was, with the onus on the candidate to vet themselves,” Edminster said. “It’s a great example of why we should trust but verify.”
He assumed someone would check the veracity of his affidavit. Indeed, knowingly false statements subject candidates to criminal penalties.
Did the Democratic Party nonetheless conduct a background search on Riley? Chatham County Democratic Committee Chair James “Jay” Jones did not respond to requests for comment.
Riley claims he squared away his eligibility with Jones after filing his papers, but not specifically when. He said he got the green light from his attorney beforehand: “I did my due diligence. You think that I would throw away $750!”
Rivers has also had his run-in with the law. He was arrested in 2015 on charges of possessing a controlled substance and related offenses. District Attorney Meg Heap confirmed that the charges were dismissed in August 2019 because the traffic stop was questionable. Edminster brought River’s arrest to the attention of the Elections Board. But Mahoney declined to hold a hearing, saying there was no doubt the charges against Rivers had been dropped.
Don Hodges, chairman of the Chatham County Republican Party, said most local Republican candidates don’t need background checks because they’re already well-known to party members. And once applications are filed, they’re turned over to the Elections Board, putting the matter in their court. But Rivers came to him about a week after filing and disclosed his arrest. After he had Rivers meet with an attorney and confirmed dismissal of charges with the D.A.’s office, Hodges said he told Rivers he was in the clear.
The Official Challenge to Riley’s Candidacy
Enter Carry Smith, a resident of District 2, political science professor, and member of the People’s Agenda, an Atlanta-based, non-partisan non-profit, which serves as an election watchdog and voter advocacy group. She’s also completing her Ph.D. with a dissertation on the Georgia Voting Rights Act.
Noting she’s an Independent, Smith said she voted for Edminster in the run-off. His loss prompted her to dig into the backgrounds of Riley and Rivers beginning August 15, when she also began researching candidates for other offices. Smith said she’d previously interviewed Riley on her WRUU political radio show and had been inclined to support him. After a quick Google search, however, she discovered a 1998 federal court appellate decision, U.S. v. Riley, which alarmed her. She also mentioned that the date Riley completed his sentence – November 10, 2011 – was readily available on the website of the Federal Bureau of Prisons.
The appellate court decision denied Riley’s appeal from the Southern District of Georgia and upheld his conviction. Riley had been indicted for “aiding and abetting” a “conspiracy to possess with intent to distribute cocaine in both powder (hydrochloride) and ‘crack’ (base) forms.” According to the Eleventh Circuit, Riley and his co-conspirator were “involved in a large organization that provided powder, processed it into crack, and then distributed it in the Savannah Georgia area.”
The Court noted that Riley was also a crack addict and right-hand man to the alleged leader of the organization.
After comparing her findings against the requirements to hold office in Georgia, along with Riley’s affidavit, Smith decided to present her evidence to the Elections Board.
“I had this big burning question as a resident of District 2, why a person running for office didn’t disclose this,” she said. She turned over her findings on October 11, the night before the Board voted, sending the materials to Mahoney, with a copy to Rauers, who she knew from working on voting issues.
Who Knew What When
Why did Smith wait nearly two months to notify the Board? Smith said she was assembling her research, vetting it, studying the Georgia Constitution and Code, and examining other candidates. She maintained she’d heard talk in the community about Riley’s conviction, too.
“I didn’t want to incriminate anyone. I just wanted to give Mr. Riley the opportunity to answer questions to the public,” she explained.
The next day the Elections Board voted to hold a disqualification hearing.
“The timing of it stinks. It’s horrible,” Mahoney said, claiming the March qualification period is the best time for opposing candidates and members of the public to assert challenges. If the question of Riley’s eligibility had come up then, he believes Riley never would have made the June ballot.
This qualifying period only lasted five days, from March 2-6.
Who’s in a better position to vet the candidates during this window, the political parties, the Elections Board, or the citizens?
Hodges told me the Republican Party requested a background check on Riley on or about September 1. After learning of Riley’s conviction, he said he put the Elections Board on notice through Rauers, giving her the information “somewhere between the 11th and 17th of September,” a month before Smith sent her emails. Rauers could not be reached for comment.
The month before, the Elections Board had voted to censure Rauers for her pattern of interfering with elections workers, her second such censure.
Irate, Riley claims the drug conspiracy laws under which he was convicted are a relic of Jim Crow, orchestrated decades ago by the Democrats –“Joe Biden did that” – which disproportionately affect African Americans. Laws still on his back despite his working to change his life by getting married and holding a number of respectable jobs.
He blamed the current dispute, though, on a Republican Party “plot” to force him out, a conspiracy of its own devised by Rauers.
Although Board member Hodge acknowledged that the optics of the Board’s vote appeared to be along party lines, she believes her colleagues are fair-minded. Republican Board member Marianne Heimes agreed, but has heard rumors of a plot, as well. If there is one, she stated she’s not part of it. Hodge did, however, express reservations about one Board member who remained nameless.
“I think it should be investigated,” she added.
Adding another twist, while admitting he had no proof, Mahoney opined that it “smells an awful lot like it was orchestrated to prevent having Clinton Edminster or Michael Hamilton from being a candidate.”
But do politics even much matter if the law’s the law?
Smith feels caught in the middle – after all, the burden of contesting qualifications is primarily on citizens. She asserted that she’s been unfairly labeled a racist and secret Republican with something to gain from merely performing her civic duty.
Last week I received a call from an individual who asked to weigh in – another “concerned citizen.”
Having heard about the backlash against Smith, this individual agreed to speak with me on the condition of anonymity. “X” told me the question of Riley’s eligibility had been in the wind for some time, so X made an anonymous call to the Elections Board and spoke with Supervisor Russell Bridges, sometime between September 16-20. X told him all about Riley, X said, and learned only then that the Board didn’t conduct background searches: “I had the sense that the burden of finding proof was 100% with the people.”
Repeated attempts to reach Bridges throughout the week went unheeded.
The October 27 Hearing
Although 10 years haven’t expired since completion of Riley’s sentence, have his civil rights nevertheless been restored? And was his felony one of moral turpitude? These – and perhaps other matters we don’t yet know about – will be aired during the Board’s hearing.
Although the Georgia Code doesn’t define “moral turpitude,” it’s generally understood to mean baseness, vileness or depravity, acts that are contrary to justice, honesty, good morals, and duties that individuals owe each other. A guide to holding elected office in Georgia published by the Secretary of State’s office has extensive commentary on the law.
According to Walter Jones, Communications Manager for Voter Elections with the Georgia Secretary of State’s office, the Georgia Supreme Court has ruled that all felonies in Georgia are considered felonies of moral turpitude. Still, in the first instance, it’s a question to be answered by the Elections Board in accordance with state law.
Savannah attorney Robert Persee concurs. Now in private practice handling criminal cases and appeals, Persee served as Chatham County’s Chief Public Defender for 15 years. Per his research of Georgia law, the cases indicate that the definition of crimes of moral turpitude is broad enough to encompass any felony conviction, including Riley’s offense.
If the Board disqualifies Riley, signs will be placed at polling places letting voters know – it’s too late to remove his name from the ballot or replace him with another candidate. Riley’s next recourse would be an appeal to the Chatham County Superior Court, which has discretion whether or not to stay the Board’s ruling, while voting continues.
“I’m going to run. I’m going to fight. I’m not going to back down,” Riley told me.
What does all the hoo-ha mean for voters?
The questions are many, the answers few.
What does this mean for those who have already voted for Riley? Are they somehow disenfranchised if Riley is removed from the ticket this late in the game?
But what about fairness to Rivers? If Riley is in fact ineligible, state law prevents him from taking the oath of office.
And what effect does this situation have on voters continuing to cast their vote? Is it fair to those who have already voted not to have had full disclosure of the facts before casting their vote in the first place? Or do voters assume the risk because they are the designated watchdogs to begin with?
What if the Elections Board disqualifies Riley, but he appeals and the Superior Court grants a stay, allowing voters to continue voting for Riley? What if he wins and is later disqualified? Does Rivers win automatically or would there be a special election? Edminster said he’s keeping his expectations wide open and looking to the Democratic Party for direction. (Again, they could not be reached for comment.)
Is there an intersection of fairness where the letter of the law and its spirit meet?
On the other hand, isn’t there another way altogether of looking at this, by appreciating the grand privilege we as Americans have to participate in the decision-making process – together, however divided we may be?
Maybe candidates should be required to attach police background searches to their candidacy affidavits, Hodges suggested, an easy fix through amendment of the elections laws. Until then, why can’t our political parties perform searches of their own? (They receive half the $750 filing fee from every candidate – and searches are inexpensive.) They don’t need a state legislative mandate to do that.
Sadly, none of this helps voters in the current election.
The last word goes to Hodge: “It’s a classic conundrum.”
Certainly that’s something on which everyone can agree.
