Oct. 13-TUPELO - Nettie Davis, a 20-year member of the Tupelo City Council, and Charles Penson, the chairman of the Democratic municipal executive committee, have both been indicted on misdemeanor charges of violating state election laws, according to documents obtained by the Daily Journal.
Davis and Penson stand accused of proposing or conducting an unlawful lottery as a voting incentive.
Mississippi statute makes it illegal for anyone to "put up or in any way offer any prize, cash award or other item of value to be raffled, drawn for, played for or contested for in order to encourage a person to vote or to refrain from voting in any election."
Neither Davis nor Penson have yet made an appearance in court related to the indictments, which are still under seal.
District Attorney John Weddle had no comment.
Jim Waide, a defense attorney representing both defendants, told the Daily Journal on Wednesday afternoon that he has not yet seen the indictments.
The charges lodged against Davis and Penson are only misdemeanors and carry no possibility of jail time. Instead, both could face maximum fines of $5,000 if convicted.
However, the political stakes for Davis could not be higher. If convicted, state statute appears to require that she be removed from office, though her defense counsel has suggested in civil court filings that the relevant criteria for her removal from office have not been met.
An indictment only means that a grand jury believed there was reasonable cause to believe that a crime has been committed, but it does not determine guilt or innocence.
Only prosecutors present a case to the grand jury. Very rarely are defense counsel or other representatives of the potential defendants present. A grand jury met in early September in Lee County, during which Davis and Penson were both indicted.
Municipal campaign rally at root of criminal charges
The indictment of Davis stems from a June 5 campaign rally, which occurred just days before the general election for municipal offices in Tupelo. In a video of that rally that first appeared on the social media platform Facebook, Davis solicited donations for a raffle intended to award cash prizes to people who voted in the general election.
"We'll pull names after they have voted, and what we'll do is give this money away the day after the voting is over," Davis said on the video.
The raffle never actually took place, according to court filings and people who attended the rally.
Penson's indictment is likewise linked to evidence that originated on Facebook. In a May 29 Facebook post, Penson said that local clergy were using financial incentives to encourage voting.
"Stay tuned for details on cash prizes to church with most absentee voters, church with most voters, oldest voter and youngest voter for the June 8 election," Penson wrote at the time.
On the eve of the municipal general election, Weddle and Secretary of State Michael Watson both released public statements indicating that investigations were ongoing into these remarks.
"These actions will not be tolerated," Weddle said at the time. "I am dedicated to handling this matter and any other violations aggressively."
Controversy has rallied Davis allies, Democratic Party offers muted response
With two prominent local Democrats now under indictment, local and state party leaders are largely holding their silence.
Jim Newman, the chairman of the Lee County Democratic Party, did not wish to comment in detail on the charges set out in the indictments, but said that Penson and Davis "are well represented by counsel."
Newman, who was present when the election raffle comments occurred, said on a previous occasion that he believes Davis has been targeted in order to advance a partisan agenda.
Tyree Irving, the chairman of the Mississippi Democratic Party and a former Mississippi Court of Appeals judge, did not immediately returns calls on Wednesday afternoon seeking comment.
In recent months, as expectations mounted that Davis would face criminal prosecution, local ministers, progressive activists and local Democratic Party leaders have rallied around her.
Some voices have accused the district attorney, a Republican, of carrying out a "political vendetta" against Davis, a Democrat, and believe the charges should be dropped.
"There is a day of reckoning coming for the DA," the Rev. Jeffrey Gladney previously said at a press conference. "He has an election coming up, and I will do everything in my power to get every vote against him. We want to stand with Ms. Davis."
Davis and Penson have long history in local politics
Davis and Penson are both prominent figures within local politics and the city's Black community. A longtime elected representative of the city's Ward 4, Davis was the first Black woman elected to the Tupelo City Council.
She was active in the Civil Rights movement and was one of around 200 students who participated in a mass sit-in protest at a lunch counter in the Nashville area to advocate for desegregation and for voting rights for Black citizens.
Penson is a minister and has sought elected office on several occasions, including a state House of Representatives seat and an at-large seat on the Tupelo City Council. He was also worked for 10 years as the personnel director for the City of Tupelo.
He was also a plaintiff in a lawsuit that eliminated the city of Tupelo's two at-large seats on the City Council on the basis that they diluted Black voting power.
Davis claims law against election lotteries unconstitutionally restricts free speech
In anticipation of her indictment, Davis already brought suit in August initially asking a Hinds County Circuit Court judge to find unconstitutional the law she is accused of violating.
That civil claim, which is seeking a declaratory judgment, is now pending in federal court rather than state circuit court.
In filings on behalf of Davis, Waide claims the statute in question is unconstitutionally vague and that it violates the free speech protections of the U.S. Constitution. In support of this argument, he cites U.S. Supreme Court precedent finding that campaign contributions are constitutionally protected free speech.
"The offering of a possibility of obtaining a small 'item of value' if a person votes constitutes speech," Waide wrote in court filings. "The United States Supreme Court has held that even large campaign contributions made in order to encourage persons to vote for a particular candidate are protected by the First Amendment to the United States Constitution."
This civil lawsuit names Watson as a defendant. He has requested that the case be dismissed.