BRIEF OF APPELLEE

THAD COCHRAN
E-Filed Document Sep 24 2014 21:19:47 2014-EC-01247-SCT Pages: 62
IN THE SUPREME COURT OF MISSISSIPPI
No. 2014-EC-01247-SCT
______________________________________________
CHRIS MCDANIEL
Appellant
vs.
THAD COCHRAN
Appellee
On Appeal from the Circuit Court of Jones County, Mississippi,
Second Judicial District
Honorable Hollis McGehee - Special Circuit Court Judge in Cause No. 2014-76-CV08
______________________________________________________________________________
BRIEF OF APPELLEE THAD COCHRAN
EN BANC ORAL ARGUMENT GRANTED BY SUPREME COURT ORDER DATED
SEPTEMBER 9, 2014
______________________________________________________________________________
Phil B. Abernethy (MB #1023)
Mark W. Garriga (MB #4762)
Lem Montgomery III (MB #100686)
LeAnn W. Nealey (MB #8497)
BUTLER SNOW LLP
P. O. Box 6010
Ridgeland, MS 39158
Tel: 601-985-4581
Fax: 601-985-4500
ATTORNEYS FOR APPELLEE
THAD COCHRAN
ii
TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................................................. ii
TABLE OF AUTHORITIES...................................................................................................... iv
CERTIFICATE OF INTERESTED PERSONS..................................................................... viii
STATEMENT OF THE ISSUE................................................................................................... 1
STATEMENT OF THE CASE.................................................................................................... 2
A. Course of Proceedings, Statement of Facts Relevant to the Issue on Review,
and the Special Circuit Courts Disposition of the Case. ............................................. 2
SUMMARY OF THE ARGUMENT .......................................................................................... 7
LAW AND ARGUMENT........................................................................................................... 10
A. McDaniels State-Wide Election Contest was Required to be Filed Within
20 Days After the Primary Election. ............................................................................ 10
1. Themanifest intent of the1908Act wastoimposea20-dayfilingperiodfor all
primaryelectioncontests. ......................................................................................... 10
2. Kelluminterpretedthesesectionsinthe1942Codeasrequiringthat all primary
electionchallengesbefiledwithin20days. ............................................................. 12
3. Kellumappliestoday.................................................................................................... 15
B. Kellums 20-Day Deadline to File a State-Wide Election Challenge was
Engrafted upon Miss. Code 3144, now Miss. Code 23-15-923. ............................ 16
1. A judicial decisioninterpretingastatutebecomespart of that statutewhere
it isre-enactedbytheLegislaturewithout material change. .................................. 16
2. A judicial decisionalsobecomespart of thestatutewherethestatuteisrepealed
andthenrecodified. ................................................................................................. 17
3. Thelawsof 1970, 1979and1982attemptingtorevampMississippiselection
lawsdidnot gointoeffect........................................................................................ 18
C. The 1942 Code Election Statutes, Including Sections 3143 and 3144 In
Particular, Were Carried Forward Without Material Changes. .............................. 21
1. Thelegislativehistoryof theMississippi ElectionCode. ........................................... 21
2. Therewerenomaterial changestotherelevant current electioncontest statutes.... 23
D. Because There Were no Material Changes to the Election Statutes, Kellums
20-day Deadline to File a State-Wide Election Challenge, as Engrafted on
Miss. Code 23-15-923, Applies Today. ..................................................................... 25
E. The Doctrine of StareDecisisalso Shows that Kellums20-day Deadline to
iii
File a State-Wide Election Challenge Applies Today. ............................................... 26
F. The Plain Meaning Rule Does Not Apply Here. .......................................................... 28
G. The Statutory Changes Addressed by McDaniel are Immaterial.............................. 33
1. Theimmaterial changestothestatutorylanguage..................................................... 33
2. McDanielsargumentsregardingthetimetoreviewballot boxesdoesnot
followthestatutoryschemeor judicial precedent. ................................................. 34
H. Barbour v. GunnDid Not Overrule KellumBecause the 20-Day Deadline For
Filing a State-Wide Election Challenge was not Addressed in that Case................ 39
1. TheBarbour v. Gunndecision.................................................................................... 40
2. TheCourtssilenceinBarbour vGunndoesnot overruleKellum........................... 41
I. The Courts Application of Kellumwould not Overrule Barbour v. Gunnor
Lead to a Change in the Result. ................................................................................... 45
J. The Arguments Raised by Amicus Curiae and not by McDaniel are Not
Properly Before the Court. ........................................................................................... 46
K. The Elections Clause is Consistent with Kellumv. J ohnson. ...................................... 47
L. The Court Cannot Adjudicate the Present Case on the Merits. ................................ 48
M. There Is No State or Federal Authority to Support a Delay of the November
General Election. ............................................................................................................ 49
CONCLUSION ........................................................................................................................... 50
APPENDIX.................................................................................................................................. 52
Certificate of Service................................................................................................................... 53
iv
TABLE OF AUTHORITIES
Cases
Abbay v. Bd. of Levee Commrs, 83 Miss. 102, 35 So. 426 (1903) .............................................. 18
Accord Land Commr v. Hutton, 307 So. 2d 415 (Miss. 1974).................................................... 27
Ariz. Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011) .............................................. 44
Barbour v. Gunn, 890 So. 2d 843 (Miss. 2004)..................................................................... passim
Branch v. Smith, 538 U.S. 254 (2003) .......................................................................................... 48
Burnside v. Burnside, 86 So. 2d 333 (1956) ................................................................................. 46
Bush v. Gore, 531 U.S. 98 (2000)................................................................................................. 47
Caves v. Yarbrough, 991 So. 2d 142 (Miss. 2008) ........................................................... 17, 26, 27
Childress v. State, 188 Miss. 573, 195 So. 583 (1940)................................................................. 27
Choctaw, Inc. v. Wichner, 521 So. 2d 878 (Miss. 1988) .............................................................. 17
City of Natchez v. Sullivan, 612 So. 2d 1087 (Miss. 1992) ........................................ 28, 30, 31, 32
Cockrell v. Pearl River Valley Water Supply District, 865 So. 2d 357 (Miss. 2004)................... 46
Crosby v. Alton Ochsner Medical Foundation, 276 So. 2d 661 (Miss. 1973).................. 17, 27, 44
Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131 (Miss. Ct. App. 1999) ............................... 15
Doe v . Tangipahoa Parish Sch. Bd., 494 F.3d 494 (5
th
Cir. 2007).............................................. 44
Doe, et al. v. Attorney W., 410 So. 2d 1312 (Miss. 1982) ............................................................ 18
Drummond v. State, 184 Miss. 738, 185 So. 207 (1938)........................................................ 42, 43
Evers v. State Board of Election Commrs, 327 F. Supp. 640 (S.D. Miss. 1971) ........................ 19
Forest Prod. & Mfg. Co. v. Buckley, 107 Miss. 897, 66 So. 279 (1914)...................................... 27
Foster v. Harden, 536 So. 2d 905 (Miss. 1988) ......................................................... 41, 42, 44, 45
Gadd v. Thompson, 517 So. 2d 576 (Miss. 1987)............................................................. 41, 44, 45
Harpole v. Kemper County Democratic Exec. Comm., 908 So. 2d 129 (Miss. 2005) ................. 38
Harris v. Stewart, 187 Miss. 489, 193 So. 339 (1940) ................................................................. 39
Holmes v. Griffin, 667 So. 2d 1319 (Miss. 1995) ......................................................................... 46
Illinois Cent. R. Co. v. Wales, 177 Miss. 875, 171 So. 536 (1937) .............................................. 39
Jones v. Moorman, 327 So. 2d 298 (Miss. 1976) ............................................................. 19, 20, 22
Kellum v. Johnson, 237 Miss. 580, 511 So. 2d 147 (1959) ................................................... passim
Lopez v. Holleman, 69 So. 2d 903 (Miss. 1954)........................................................................... 32
Marlow, L.L.C. v. BellSouth Telecomms., Inc., 686 F.3d 303 (5th Cir. 2012) ............................. 15
McDaniel v. Beane, 515 So. 2d 949 (Miss. 1987) ................................................................. passim
McDonald v. State Tax Commn, 158 Miss. 331, 130 So. 473 (1930) ......................................... 18
Mississippi Dept. of Transportation v. Allred, 928 So. 2d 152 (Miss. 2006)............................... 30
v
Mississippi State and School Employees Life and Health Plan v. KCC, Inc., 108
So. 3d 932 (Miss. 2013)........................................................................................................... 28
New York Life Ins. Co. v. Nessossis, 189 Miss. 414, 423, 196 So. 766 (1940) ............................ 27
Noxubee County v. Russell, 443 So. 2d 1191 (Miss. 1983) ................................................... passim
Pearson v. Jordan, 186 Miss. 789, 192 So. 39 (1939) ................................................................. 25
Pittman v. Forbes, 186 Miss. 783, 191 So. 490 (1939) ................................................................ 25
Porter v. Porter, 23 So. 3d 438 (Miss. 2009) ............................................................................... 17
Public Citizen Inc. v. Miller, 992 F.2d 1548, 1993 U.S. App. LEXIS 13641
(11
th
Cir. 1993)......................................................................................................................... 50
Pyron v. Joiner, 381 So. 2d 627 (Miss. 1980) .............................................................................. 38
Roe v. Alabama by & Through Evans, 52 F.3d 300 (11
th
Cir. 1995) (Roe II) .............................. 48
Roe v. Alabama, 43 F.3d 574 (11
th
Cir. 1995) (Roe I).................................................................. 48
Roe v. Alabama, 68 F.3d 404 (11
th
Cir. 1995) (per curiam) (Roe III) .......................................... 48
Roe v. Mobile County Appointment Bd., 676 So. 2d 1206 (Ala. 1995) ........................................ 48
Smith v. Clark, 189 F. Supp. 2d 548 (S.D. Miss. 2002)................................................................ 47
State ex rel Holmes v. Griffin, 667 So.2d 1319 (Miss. 1995) ....................................................... 48
State ex rel Moore v. Molpus, 578 So.2d 624 (Miss. 1991) ..................................................... 9, 27
State Tax Commn v. Miss. Power Co., 172 Miss. 659, 160 So. 907 (Miss. 1935)...................... 18
State v. Hill, 70 Miss. 106, 11 So. 789 (1892).............................................................................. 18
Thomas v. McDonald, 667 So. 2d 594 (Miss. 1995) .................................................................... 17
Tillis v. State, 43 So. 3d 1127 (Miss. 2010).................................................................................. 28
Tolbert v. Southgate Timber Co., 943 So. 2d 90 (Miss. Ct. App. 2006) ...................................... 17
United States v. L. A. Tucker Truck Lines, Inc, 344 U.S. 33 (1952)................................... 9, 43, 44
Waters v. Gnemi, 907 So. 2d 307 (Miss. 2005) ..................................................................... passim
Westmoreland v. State, 246 So. 2d 487 (Miss. 1971) ................................................................... 27
Yazoo & Miss. Valley R.R. Co. v. Adams, 32 So. 937 (Miss. 1902) ............................................. 49
Laws, Constitutions and Statutes
1908 Miss. Laws Ch. 136 1 ................................................................................................... 8, 11
1908 Miss. Laws Ch. 136 2 ................................................................................................... 8, 11
1908 Miss. Laws Ch. 136 3 ....................................................................................................... 11
1970 Miss. Laws Ch. 506, 34 .............................................................................................. 19, 22
1979 Miss. Laws Ch. 452, 40-42....................................................................................... 19, 20
1982 Miss. Laws Ch. 477, 7-9................................................................................................. 20
Miss. Code 1-1-25...................................................................................................................... 18
Miss. Code 5-23-937.................................................................................................................. 50
vi
Miss. Code 21-29-139................................................................................................................ 31
Miss. Code 23-3-23.................................................................................................................... 36
Miss. Code 23-15-597......................................................................................................... passim
Miss. Code 23-15-599.................................................................................................... 24, 35, 37
Miss. Code 23-15-71.................................................................................................................. 24
Miss. Code 23-15-911.......................................................................................... 9, 24, 31, 34, 35
Miss. Code 23-15-921......................................................................................................... passim
Miss. Code 23-15-923......................................................................................................... passim
Miss. Code 23-15-925.................................................................................................................. 8
Miss. Code 23-15-927......................................................................................................... passim
Miss. Code 23-15-929............................................................................................................ 9, 30
Miss. Code 23-15-933.......................................................................................................... 26, 47
Miss. Code 23-15-937......................................................................................................... passim
Miss. Code 23-15-951................................................................................................................ 14
Miss. Code 23-15-961...................................................................................................... 8, 15, 16
Miss. Code 3142 (1942)............................................................................................................. 38
Miss. Code 3143 (1942)...................................................................................................... passim
Miss. Code 3144 (1942)...................................................................................................... passim
Miss. Code 3146 (1942)............................................................................................................. 37
Miss. Code 3169 (1942)............................................................................................................. 32
Miss. Code 3182 (1942)............................................................................................................. 24
Miss. Code 3187 (1942)....................................................................................................... 25, 32
Miss. Code 3287 (1942)................................................................................................. 14, 15, 32
Miss. Const. art. 1, 1 and 2 (1890)........................................................................................... 44
Miss. Const. art. 4, 38 (1890)..................................................................................................... 45
Miss. Const. art 6. 146 (1890)..................................................................................................... 49
U.S. Const., art. I, 4, cl. 1........................................................................................................... 47
Voting Rights Act of 1965, 52 U.S.C. 10301.......................................................... 19, 20, 22, 23
Rules
Miss. R. App. P. 10......................................................................................................................... 3
MISS. R. APP. P. 14........................................................................................................................ 49
Other Authorities
20 Am Jur 2d Courts 134........................................................................................................... 42
Blacks Law Dictionary, 1173 (8
th
ed. 2004)................................................................................ 26
vii
R. Andrew Taggart & John C. Henegan, The Mississippi Election Code of 1986: An
Overview, 56 Miss. L.J. 535, 537 n.12 (1986)............................................................. 20, 21, 22
viii
CERTIFICATE OF INTERESTED PERSONS
The undersigned counsel of record for Respondent-Appellee Thad Cochran certifies that
the following listed persons have an interest in the outcome of this case. These representations
are made in order that the justices of the Supreme Court and/or judges of the Court of Appeals
may evaluate possible disqualification or recusal.
1. Chris McDaniel, Appellant
2. Thad Cochran, Appellee
3. Mitchell H. Tyner, Sr., TYNER LAW FIRM, P.A., Counsel for Appellant Chris
McDaniel
4. Steve C. Thornton, Counsel for Appellant Chris McDaniel
5. Phil B. Abernethy, Mark W. Garriga, Lem Montgomery III, and LeAnn W. Nealey,
BUTLER SNOW LLP, Counsel for Appellee Thad Cochran
6. Thomas A. McKnight, Jr., WALLACE, JORDAN, RATLIFF & BRANDT, LLC, Counsel
for Amicus Curiae Conservative Action Fund
So certified this the 24
th
day of September, 2014.
/s/ Phil B. Abernethy
Phil B. Abernethy
ONE OF THE ATTORNEYS FOR APPELLEE
THAD COCHRAN
1
STATEMENT OF THE ISSUE
This expedited appeal arises from the Special Circuit Courts Order granting Respondent
Thad Cochrans Motion to Dismiss the Petition for Emergency Hearing Injunctive Relief and
Judicial Review (Judicial Review Petition) filed by Chris McDaniel, the losing candidate in
Mississippis June 24, 2014 Republican primary runoff election for the office of United States
Senator. A condition precedent to a persons right to challenge a district or state-wide primary
election contest as here requires that the challenge be initiated within 20 days of the election.
Kellum v. Johnson, 237 Miss. 580, 115 So. 2d 147 (1959), interpreting Miss. Code 23-15-921,
923. McDaniel did not initiate his challenge until 41 days after the primary runoff election, on
August 4, 2014. He missed the 20-day jurisdictional deadline. Because McDaniels petition to
challenge the election was untimely, the Special Circuit Courts decision granting Cochrans
Motion to Dismiss on this basis should be affirmed, and McDaniels Petition be dismissed, with
prejudice.
The issue on appeal is:
I. Whether the 20-day period for filing primary election contests recognized in Kellum v.
Johnson, 237 Miss. 580, 115 So. 2d 147 (1959) and ratified by repeated reenactment
should be abandoned on the theory i) that the 1908 legislature intended to allow an
unlimited time to file such a contest, or ii) that immaterial changes in 1986 void the
Kellum decision, or iii) that this court overruled Kellum in Barbour v. Gunn, 890 So. 2d
843 (Miss. 2004), a case in which the 20-day filing deadline was not raised and Kellum
was never cited.
2
STATEMENT OF THE CASE
A. Course of Proceedings, Statement of Facts Relevant to the Issue on Review, and the
Special Circuit Courts Disposition of the Case.
This appeal stems from the untimely election contest initiated by McDaniel 41 days after
Mississippis June 24, 2014 primary runoff election for the office of United States Senate. Set
forth below are the course of proceedings, the disposition of this case in the special circuit court,
and the relevant facts necessary to determine the issue before the Court:
Mississippis Republican primary runoff election for the office of United States Senator
was held June 24, 2014.
On July 1, 2014, pursuant to Miss. Code 23-15-597(1), the Republican Party State
Executive Committee (SEC) met and canvassed the returns, declared the results, and announced
the names of those nominated in the second primary. See ADD 1 (2014 Elections Calendar,
http://www.sos.ms.gov/Elections-Voting/Documents/2014ElectionsCalendar.pdf, last accessed
September 21
st
, 2014).
On August 4, 2014, 41 days after the election, McDaniel initiated a Complaint of
Election Contest before the SEC (See R.E. 3; R. 3 (Pet. at 3)), pursuant to Miss. Code 23-
15-923. McDaniel supplemented his Complaint of Election Contest on August 6, 2014, adding
additional counties (R.E. 3; R. 285-359).
McDaniel supplemented his Complaint of Election Contest for a second time August 12,
2014, adding additional counties (R.E. 3; R. 360-427).
By correspondence dated August 6, 2014, the State Republican Executive Committee
(SREC) told McDaniel it would not entertain the Complaint of Election Contest. R.E. 3; R.
426-27. see also R.E. 3; R. 4 (Pet. at 5).
3
On August 14, 2014, McDaniel filed his Judicial Review Petition in the Circuit Court of
Jones County, Second Judicial District, seeking to challenge the results of the runoff pursuant to
Miss. Code 23-15-923. R.E. 3; R. 3-427.
On an expedited briefing schedule, Cochran moved to dismiss McDaniels Judicial
Review Petition because it was untimely (R.E. 5; R. 428-30) and filed his answer that same day.
ADD 2.
1
In his motion, Cochran delineated the applicable statutory framework and case
precedent that required dismissal of this case. In particular, Miss. Code 23-15-921 provides
that challenges to an election for county-wide office must be initiated within 20 days of the
election. Interpreting the inter-relationship between the predecessor statutes to 23-15-921 and
23-15-923, the Mississippi Supreme Court has similarly stated that as a condition precedent to
a persons right to challenge a district or state-wide primary election, as in this case, the
challenge must be initiated within 20 days of the election. See Kellum v. Johnson, 237 Miss.
580, 115 So. 2d 147 (1959); Miss. Code 23-15-921, 923.
Under Kellum v. Johnson, interpreting Miss. Code 23-15-921 and 923, July 14, 2014
20 days after the primary runoff election was the deadline for McDaniel to file his Complaint
of Election Contest with the SREC. His August 4, 2014 filing was days too late, as a matter of
law.
__________________
1
By Order dated September 9, 2014, the circuit court clerk was required to file the record on appeal by
September 12, 2014. After that occurred, it was necessary for Respondent to file a Motion to Strike
Petitioners September 10, 2014 Notice of Filing, and the Special Circuit Court did not rule on that
motion until today. As such, due to the extremely expedited nature of this appeal, it was not possible to
supplement or designate items to be added to the appeal record without causing piecemeal
supplementation. To avoid that irritation to the Circuit Clerk, Senator Cochran also waited to designate
his Answer and Affirmative Defenses until his Motion to Strike was resolved. Accordingly, attached to
this brief as ADD 2 are filed copies of Respondents Answer and Affirmative Defenses; Respondents
Motion to Strike Petitioners September 10, 2014 Notice of Filing; Petitioners Response; and the
September 24, 2014 Order of the Special Circuit Court denying Respondents Motion to Strike. A motion
to supplement the record with certified copies of these documents pursuant to Miss. R. App. P. 10(e) will
be filed tomorrow.
4
McDaniel responded to Cochrans motion to dismiss on August 25, 2014 (R.E. 6; R. 432-
47), and Cochran filed a Certificate of Public Records and Reports (R. 448-69) on August 27,
2014, and served his rebuttal brief on the same day.
A hearing on this matter was held on August 28, 2014. Special Circuit Court Judge
McGehee did not render a decision at the hearing, but instead requested additional submissions,
if the parties desired to do so, on the issue of the precedential effect, if any, of Barbour v. Gunn,
890 So. 2d 843 (Miss. 2004). The question was raised because Barbour v Gunn was decided on
the merits. The Kellum 20-day jurisdictional deadline issue was not raised by the parties in that
case, or addressed by the trial court or Mississippi Supreme Court. The parties furnished the
Court with their submissions regarding Barbour v Gunn on that same day. See R.E. 10; R. 521-
23, 526-34.
On August 29, 2014, the Special Circuit Court Judge rendered a bench opinion granting
Cochrans motion to dismiss. R.E. 7; R. 470-80. He thoroughly analyzed the issue before him,
which he explained was whether McDaniel timely filed his election contest under the Mississippi
Election Code, which both controls and limits the bringing of this action. R. 473 (Tr. 3:10-
11).
2
Addressing Miss. Code 23-15-923, he explained that under this provision if a candidate
wishes to contest the election, . . . he must do that by filing a complaint or a petition with the
State, in this case, Republican Executive Committee. . . . What Section 923 doesn't say, of
course, is when that [contest] must be filed. R. 474 (Tr. 3:13-19). Applying accepted means
of statutory interpretation . . . [to] look to the whole law (id. at 3:20-24), he observed that the
immediately preceding section, Section 921, provides that, . . . a County . . . election . . . must
be filed within 20 days. Id. at 3:24-4:2.
__________________
2
Transcript citations are to the transcript attached to the Order of the Special Circuit Court at R. 472-80.
5
The Special Circuit Court Judge then discussed Kellum, recognizing that the Mississippi
Supreme Court there interpreted the predecessors to the current sections, Miss. Code 3143
and 3144 (1942), and held that the 20-day provision that applies in a [c]ounty-wide . . . election,
also applies in a [s]tate-wide election. R. 474-75 (Tr. 4:14-19). He also specifically noted that
the Kellum Court went further and actually held that it wasn't even a statute of limitations. It
was what's known as a condition precedent. R. 475 (Tr. 4:20-23).
Having addressed Kellum, the Court found that the next question was whether the current
law was different than the prior law, so as to void Kellum. On this point the Special Circuit
Court Judge held: [T]he Court has looked at that very carefully [and] . . . finds that the two
primary Sections 3143 and 3144, of the 1942 Code, and [Sections] 921 and 923 of the 1972
Code, as amended in 1986, are essentially the same. The differences between them are not
material. R. 475 (Tr. 5:6-13).
From this, he expand[ed] [his] search and looked to the overall statutory scheme
through a comparison of the Mississippi Election Code and the prior elections statutes. Citing
McDaniel v. Beane [515 So. 2d 949 (Miss. 1987)] in support, he held: And, certainly, there are
differences between those two. But overall those are essentially the same -- one and the same.
And that was the Court's impression after looking at it, that the differences were not material.
They were more in form, rather than substance. R. 475-76 (Tr. 5:14-6:20). As such, the
Special Circuit Court Judge found that Kellum was still good law. R. 476 (Tr. 6:25 7:2).
The Special Circuit Court Judge then addressed his final concern, the effect of Barbour v.
Gunn on Kellum. There, he explained, the challenger, Gunn, had not filed his complaint with the
State Republican Executive Committee within the 20 days, but Barbour versus Gunn doesn't
address that issue at all. R. 477 (Tr. 7:7-12). The Barbour Court did address jurisdiction, he
6
noted, but the jurisdictional issue there was whether Mr. Gunn jump[ed] the gun, so to speak, by
going straight to court without hearing from the State Republican Executive Committee. And
they found that he had not. . . . R. 477 (Tr. 7:13-21).
On the 20-day jurisdictional issue, the Special Circuit Court Judges concern was that
when I realized that [Mr. Gunn] was beyond the 20 days in the filing, I had to see, well, is that a
precedent that, in essence, overrules Kellum [v.] Johnson. There's no mention of 20 days in
there. It's not covered at all. It's not addressed at all. That's just not an issue. R. 477 (Tr. 8:1-
8) (emphasis added). On this point, he held that the silence in Barbour v Gunn on the 20-day
deadline issue does not overrule Kellum v. Johnson: [A]fter looking at case law, there's a
principle that . . . says, if the case is silent on it, if something passes by, then that doesn't make
that law for that case. . . . And for me to take a silence in Barbour versus Gunn, where they don't
address the question of the 20 days, and say that means that that 20 days no longer applies is not
solid -- that's not an appropriate way to interpret the law. R. 477-78 (Tr. 8:9-25). Based on this
analysis, the Special Circuit Court Judges concluded:
So the Court is faced with the undisputed facts that Senator McDaniel filed his
complaint with the State Republican Executive Committee 41 days after the date
of the election. The law requires that it be done in 20 days. It's not a question of
whether I think that's good law or whether I think it should be that way or not be
that way. The question is, what is the law? And when you don't meet that
requirement, then you're not entitled to come in the door of the courthouse, so to
speak, with a lawsuit. The Court is without authority to go any further than that.
So the Court finds as a matter of law that Kellum v. Johnson is still good law, and
that Senator McDaniel's failure to file within 20 days precludes the Court from
going further, and means that the Motion to Dismiss must be granted.
R. 476-79 (Tr. 9:1-22).
The Order and Final Judgment was signed by the Special Circuit Court Judge on
September 4, 2014 (R.E. 7; R. 470-80) and Petitioner filed his Notice of Appeal on September 5,
2014. R.E. 9; R. 481-82. By Order dated September 9, 2014, this Court set an expedited record
7
preparation and briefing schedule, and set oral argument before the en banc Supreme Court for
Thursday, October 2, 2014.
SUMMARY OF THE ARGUMENT
In this case the Court is faced with the challengers claim that a 1959 decision construing
repeatedly reenacted statutory language that imposes a 20-day time limit on primary challenges
should be cast aside so that, in a primary election contest, the challenger can wait as long as he
chooses to file his contest while, once it is filed, everyone else must hurry up, including judges
who, if they do not promptly and diligently proceed commit a high misdemeanor in office.
Miss. Code 23-15-937.
Nothing here requires such an odd result. The best reading of the original 1908 Act (see
ADD 3) is that it is all of one act addressing both single county and district/statewide challenges,
and that the challenger must file his challenge within 20 days. That is the way this Court read it
in Kellum v. Johnson, 237 Miss. 580, 115 So.2d 147 (1959), which has never been overruled or
even questioned. It makes no sense to say that, while every other step in an election contest is
subject to speedy, tight deadlines, there is no deadline whatsoever for the contestant if the protest
involves a district covering multiple counties. And nothing about the 1986 recodification or the
1988 amendment so materially changes the statute as to require such a result.
More specifically, the 1908 Act says that it is establishing a method for contesting a
primary election, not two competing methods. It says that that the method requires filing
within 20 days, and that the conduct of an investigation into fraud in a district involving more
than one county is to be in like manner as the investigation into fraud in a single county. This
Court in Kellum could discern no reason why the legislature would have intended to provide a 20
day limit in one situation, and no time limit whatsoever in the others, and rejected an argument
8
that was based on the size of the districts involved. It said the 1908 Act had to be read as a
whole, which the text itself fully justifies. And it also relied on the need for speed in resolving
primary contests.
Since Kellum, the legislature has continued to enact and reenact the provisions of the
1908 law together in the codes. See McDaniel v. Beane, 515 So. 2d 949 (Miss. 1987). That the
1942 Code was repealed when the 1972 Code was adopted is of no consequence. It is not
necessary to dwell on the attempts Mississippi made between 1972 and 1986 to adopt an election
code that the Department of Justice would accept. The ultimate result was to reenact the
language from the 1972 Code with no material change. In particular:
* The three sections of the 1908 Act remain in the Code together, as 23-15-921,
23-15-923 and 23-15-925.
* The coordination with other statutes has no significance because challenges to
primary elections and challenges to qualifications of candidates, i.e. 23-15-961, have always
been treated differently.
* The reference to a district which includes more than one county is just a rendering
into plain English of the flotorial district language in the 1908 law.
* The addition of a person desiring to contest the election to 23-15-923 simply
confirms that this language in 1 of the 1908 law was intended to apply to 2 as well, just as the
20 day period in 1 was intended to apply to 2.
Moreover, the various time limit statutes quoted in McDaniels brief actually advance
Cochrans argument, not McDaniels. It makes no sense to say that the legislature has repeatedly
limited the time for election challenges, yet intended a challenger to a party primary in a
multicounty district to be subject to no time limit at all. In fact, McDaniel does not cite a single
9
statute that does not include some sort of time limit. Even a contestees answer must be filed
promptly. Miss. Code 23-15-929. And McDaniel is wrong to argue that the election itself
provides an incentive to hurry, because the Code specifically addresses that issue and provides
that the election will be vacated if the court later finds in favor of the challenger. Miss. Code
23-15-937.
The doctrine of stare decisis is fully applicable here. State ex rel Moore v. Molpus, 578
So.2d 624, 635 (Miss. 1991). The plain meaning argument cannot overcome this doctrine
when the plain meaning of the 1908 Act is that all of its sections should be read as part of a
coherent whole, as this Court did in Kellum.
Nor is there any genuine practical concern with a 20-day filing period. The candidates
12-day examination period runs from the date of the examination of the box by the county
election committees, or the declaration by the state executive committee of the winning
candidate, -- but not from the date results are sent to the Secretary of State, as McDaniel argues.
See Miss. Code 23-15-597(1), 911(1); see also Noxubee County v. Russell, 443 So. 2d 1191,
1195 (Miss. 1983). In any event, a challenger is allowed to supplement his petition, if necessary,
after it is timely filed. Waters v. Gnemi, 907 So. 2d 307, 325-26 (Miss. 2005).
Finally, Barbour v. Gunn, 890 So. 2d 843 (Miss. 2004) did not overrule Kellum. It does
not address or discuss Kellum or the 20-day filing deadline. The briefs do not mention Kellum.
The issue there was not the 20-day period for filing a challenge under 23-15-923, but rather the
requirement that a circuit court filing be made forthwith after the challenge to the state
executive committee, as 23-15-927 then provided. There is a dispute among the courts cases
as to whether jurisdiction can be decided sub silentio. That is not the general rule. United States
10
v. L. A. Tucker Truck Lines, Inc, 344 U.S. 33, 38 (1952). But even if it could, there is no
authority for the sub silentio overruling of a directly applicable precedent like Kellum.
LAW AND ARGUMENT
A. McDaniels State-Wide Election Contest was Required to be Filed Within 20 Days
After the Primary Election.
1. Themanifest intent of the1908Act was toimposea20-dayfilingperiodfor all
primaryelectioncontests.
Before 1908, Mississippi law did not provide any method to challenge the results of a
party primary election. In that year, the legislature enacted into law what it called AN ACT
providing for method of contesting a primary election.
The word method is singular. The method has three parts. The first states the general
method that a person desiring to contest the election of another is to follow. The second states
certain exceptions that apply where the party committee is not a county committee and so the
county committee must be instructed to act. The third provides for enforcement of the Act as a
whole.
The Act 1908 Miss. Laws Ch. 136, reads as follows:
AN ACT providing for method of contesting a primary election.
How primary election may be contested on charge of fraud.
SECTION 1. Be it enacted by the Legislature of the State of Mississippi, That a
person desiring to contest the election of another person returned as the nominee
of the party to any district, county or beat office, may, within twenty days after
the primary election, file a petition with the secretary, or any member, of the
county executive committee in the county in which fraud is alleged to have been
perpetrated, setting forth the grounds upon which the primary election is
contested; and it shall be the duty of the executive committee to assemble by call
of the chairman or three members of said committee, notice of which contest shall
be served five days before said meeting, and after notifying all parties concerned,
proceed to investigate the allegations of fraud, and, by majority vote of members
present, declare the true results of such primary.
11
Chairman of state executive committee to issue his fiat to county chairman
reciting charges, etc.
SEC. 2. In State, congressional, judicial, senatorial and flotorial districts, upon
complaint filed with the chairman of the respective committees, by petition,
reciting the allegations of fraud, and with the advice of two members of said
committee, the chairman shall issue his fiat to the chairman of the county
executive committee, where fraud is alleged to have been committed, and in like
manner as in county office, the committee shall investigate the complaint and
return their findings to the chairman of the proper committee, which declare the
candidate nominated, which the corrected returns show is entitled to the same.
Committee empowered to subpoena witnesses.
Sec. 3. For the proper enforcement of this Act the committee has the power to
subpoena and, if necessary, attach witnesses needed in said investigation.
Sec. 4. That this Act shall take effect and be in force from and after its
passage.
Approved March 21, 1908
See ADD 3.
In other words, the law begins with the statement that a person desiring to contest the
election of another person is to file a petition within 20 days. Section 1 says the petition goes to
a county committee. Section 2 says the petition in certain other elections goes to the respective
committee which issues a fiat to the county committee which investigates in like manner as in
county office. Section 2 simply assumes that the person desiring to contest and the 20 days
apply to Section 2.
The nature of Section 2 as an exception to certain parts of Section 1 is further
demonstrated by the titles. The heading for Section 1 How primary election may be contested
on charge of fraud is equally applicable to Section 2. In Section 2, the exception is stated as
Chairman of state executive committee to issue his fiat to county chairman, reciting charges,
etc. That the manner of the investigation is the same in both instances further supports this
view that the sections are all part of one method. And Section 3 refers to both Sections 1 and 2
12
and shows that they are all of one coordinated act. And there is no assumption that the size of
the district has any effect on the nature of or time for the investigation, which in both cases is to
be performed in the same manner in the county where fraud is alleged.
2. Kelluminterpretedthesesectionsinthe1942Codeasrequiringthat all primary
electionchallengesbefiledwithin20days.
This single 1908 Act was codified as two statutes: Sections 3143 and 3144 of the
Mississippi Code of 1942. In Kellum, this Court interpreted these two statutes, and, relying on
the original 1908 language, held that the 20-day filing period applied to challenges under both
sections. In the 1942 Code, the language read much like that of 1 and 2 in the original law,
except that in the 1942 codification, specific references to the state executive committee and
the executive committees for senatorial and flotorial districts were added to 3144. Also, in
1935, the Corrupt Practices Act required the committees to act promptly and ask for judicial
review at the earliest possible date. Miss. Code of 1942 3143, 3144 (1956).
Applying sound principles of statutory construction, and recognizing the public policy
interest in a speedy resolution to an election challenge, this Court held in Kellum that the 20-day
deadline in Miss. Code 3143 (1942), the predecessor statute to Miss. Code 23-15-921
governing county election contests, applied equally to state-wide election contests covered by the
same Act, namely 3144 (now 23-15-923). Kellum, 115 So. 2d at 149-150.
Kellum sought to contest the nomination of a district attorney, but failed to file his
complaint with the State Democratic Executive Committee until 35 days after the primary. Id. at
148. The Committee took no action on his petition. Id. Kellum then filed his petition in Circuit
Court and Johnson moved to dismiss, citing Kellums failure to contest the election within 20
days of the primary. Id. Johnsons motion to dismiss was granted (id. at 148), and the
Mississippi Supreme Court affirmed the Special Circuit Courts decision. Id. at 151.
13
Like McDaniel here, Kellum argued that a 20-day deadline was impossible, and that it
was unreasonable to impose the same deadline for a county election as a state election
[where] there are more than eighteen hundred precincts. See Appellants Brief in Kellum v.
Johnson (available at Mississippi Department of Archives and History). This Court plainly
rejected this contention, as its well-reasoned decision shows.
In comparing the text of Section 3143 (county contests) and Section 3144 (state-wide
contests), the Court first described its duty to refrain from convict[ing] the Legislature of
unaccountable capriciousness by attributing to the Legislature [a]n intent to discriminate
unjustly between different cases of the same kind. Id. at 149. Elaborating, the Court held: It
is not to be presumed that the legislature intended to make a distinction which would convict it
of an unaccountable capriciousness on the subject. Hence, where the legislature has clearly laid
down a rule for one class of cases, it is not readily to be supposed that, in the same act, a
different rule has been prescribed for another class of cases within the same reason as the first."
Id.
The Court determined that relying on a plain reading of the text of Section 3144, alone, in
contrast to 3143 on the same subject, would violate this very principle. To avoid
impermissibly convict[ing] the Legislature of unaccountable capriciousness (see, id. at 150),
the Court turned to long-standing principles of statutory construction to determine whether
3143s 20-day time limit also applied to Section 3144.
First, the Court recognized that [s]tatutes should, if possible, be given a construction
which will produce reasonable results, and not uncertainty and confusion. Id. at 149.
Second, the Court took into account the pari materia rule, noting that [t]he two
sections here under consideration are parts of the same statute and thus should be considered in
14
harmony with the whole act:
The different parts of a statute reflect light upon each other, and statutory
provisions are regarded as in pari materia where they are parts of the same act.
Hence, a statute should be construed in its entirety, and as a whole. The general
intention is the key to the whole act, and the intention of the whole controls the
interpretation of its parts. The fact that a statute is subdivided into sections or
other parts should not obstruct or obscure the interpretation of the law as a whole.
Id. at 150 (internal quotation marks and citations omitted).
The Court also addressed the public policy concern that the challenge be speedily
resolved, and applied the above-described rules in interpreting Sections 3143 and 3144. Id. As
for the need to speedily resolve the issue, the Court said:
Where one faces reality, it is obvious that primary election
contests, if they are to be allowed and the favorable results thereof
come to full fruition, must be conducted speedily. The names of
party nominees, if they are to be of any avail, must go on the ticket
for the general election. . . .
The Court then found it would be inconceivable that the Legislature intended to limit
the time in which county contests could be filed, without also fixing a time limit to challenge all
other elections, as follows:
It is inconceivable that the Legislature intended to limit the time in
which contests could be filed where a county or beat office was
involved, and yet fix no time limit whatever for that purpose in
regard to all other offices. . . . The two sections are in pari
materia, and all contests thereforemust bebegun within twenty
daysafter theprimary. Toholdotherwisewouldbesenseless.
Id. (emphasis added).
Finally, the Court looked to Miss. Code 3287 (now Miss. Code 23-15-951) for
guidance, which applies to general elections and imposes a 20-day deadline for challenges to
state-wide and district elections: [I]n case the election of district attorney or other state district
election be contested, the petition may be filed in any county of the district or in any county of an
adjoining district within twenty days after the election. . . . Kellum, 115 So. 2d at 150, quoting
15
Miss. Code 3287. The Court found this provision somewhat helpful in arriving at the
legislative intent in the present instance. Id.
Based on the principles and policy concerns addressed above, this Court in Kellum held
that the 20-day deadline in Section 3143 likewise applied to state-wide election contests under
Section 3144. Id. at 150-51; see Marlow, L.L.C. v. BellSouth Telecomms., Inc., 686 F.3d 303,
309 (5th Cir. 2012) (citing Kellum with approval for its statutory construction analysis); see also
Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131, 1140 (Miss. Ct. App. 1999).
3. Kellumappliestoday.
McDaniel relies upon the current version of Miss. Code 3144 (1942), which is Miss.
Code 23-15-923, as the statutory basis for the initiation of his election contest. See R.E. 3; R. 3
(Pet. 3). Like the 1942 codification, and the 1908 law before that, the method (see 1908
Laws Ch. 136 (ADD 3)) for contesting the results of a primary election is set forth in two
sections addressing elections for county-wide offices ( 23-15-921) and state-wide elections (
23-15-923), with 23-15-923 expressly referring back to 23-15-921 in requiring that
investigations into the challengers allegations shall be conducted in like manner as in county
office.
Section 23-15-921 provides a maximum period of 20 days from the date of the election to
challenge the election results:
Except as otherwise provided by Section 23-15-961,
3
a person
desiring to contest the election of another person returned as the
nominee of the party to any county or county district office, or as
the nominee of a legislative district composed of one (1) county or
less, may, withintwenty(20) daysafter theprimaryelection, file a
petition with the secretary, or any member of the county executive
committee in the county in which the election was held, setting
__________________
3
This section addresses procedures for contesting qualifications of a candidate for primary election and is
not applicable here.
16
forth the grounds upon which the primary election is contested;
and it shall be the duty of the executive committee to assemble by
call of the chairman or three (3) members of said committee, notice
of which contest shall be served five (5) days before said meeting,
and after notifying all parties concerned proceed to investigate the
grounds upon which the election is contested and, by majority vote
of members present, declare the true results of such primary.
Miss. Code 23-15-921 (emphasis added).
Section 23-15-923 provides the mechanism for contesting state-wide elections and the
like, as follows:
Except as otherwise provided in Section 23-15-961,
4
a person desiring to contest
the election of another returned as the nominee in state, congressional and judicial
districts, and in legislative districts composed of more than one (1) county or parts
of more than one (1) county, upon complaint filed with the Chairman of the State
Executive Committee, by petition, reciting the grounds upon which the election is
contested. . . . and in likemanner as in thecountyoffice, the county committee
shall investigate the complaint and return their findings to the chairman of the
state committee. The State Executive Committee by majority vote of members
present shall declare the true results of such primary.
Miss. Code 23-15-923 (emphasis added).
There is no material difference between these two provisions and their predecessor
statutes, as detailed in Section C, below. The Mississippi Supreme Courts well-reasoned
decision in Kellum v. Johnson, 237 Miss. 580, 115 So. 2d 147 (1959) remains applicable today.
B. Kellums 20-Day Deadline to File a State-Wide Election Challenge was Engrafted
upon Miss. Code 3144, now Miss. Code 23-15-923.
1. A judicial decision interpretingastatutebecomespart of that statutewhereit is
re-enactedbytheLegislaturewithout material change.
McDaniel and Cochran agree that the re-enactment of legislation without material
change constitutes legislative approval and adoption of prior judicial interpretations of that
statute. See Appellants Br. at 31-32. This is a settled principle of statutory construction in
__________________
4
See n. 1.
17
Mississippi. See, e.g., Crosby v. Alton Ochsner Medical Foundation, 276 So. 2d 661, 670 (Miss.
1973) (When a statute is repeatedly re-enacted in essentially the same language and by its
retention in all subsequent codes, a decision of this Court interpreting the statute becomes in
effect a part of the statute.); Thomas v. McDonald, 667 So. 2d 594, 597 (Miss. 1995) (Judicial
interpretation of requisite time period in statute becomes, in effect, part of the statute.);
Choctaw, Inc. v. Wichner, 521 So. 2d 878, 880 (Miss. 1988) (applying prior judicial
interpretation of statute); Tolbert v. Southgate Timber Co., 943 So. 2d 90, 96-97 (Miss. Ct. App.
2006) ([W]e are mindful of the canon of construction that when the legislature leaves statutory
language unchanged, it presumably ratifies settled judicial interpretations of that language.).
5
2. A judicial decision alsobecomespart of thestatutewherethestatuteisrepealed
andthenrecodified.
McDaniel, however, contends throughout his brief that the repeal of the prior 1942
Code election statutes in 1986 somehow stripped Kellum of its precedential authority. But the
repeal of the prior 1942 Code election statutes followed by their simultaneous codification in the
1986 Election Code is a continuance of the old law [and] ... all rights and interests thereunder
__________________
5
The doctrine of stare decisis, discussed below, similarly applies to judicial statutory interpretations, as
the Court explained in Caves v. Yarbrough, 991 So. 2d 142 (Miss. 2008):
[W]here this Court concludes a statute was incorrectly interpreted in a previous case --
we will nevertheless continue to apply the previous interpretation, pursuant to the
doctrine of stare decisis, upon finding the Legislature amended or reenacted the statute
without correcting the prior interpretation. In our view, such action on the part of the
Legislature amounts to incorporation of our previous interpretation into the reenacted or
amended statute. The Legislature is, of course, free to preclude our incorrect
interpretation by specific provision, failing which, we must conclude that the legislative
silence amounts to acquiescence. Stated another way, the incorrect interpretation
becomes a correct interpretation because of the Legislature's tacit adoption of the prior
interpretation into the amended or reenacted statute.
Id., 153-54; see also Porter v. Porter, 23 So. 3d 438, 448 (Miss. 2009) (applying the analysis in Caves).
18
are preserved, as explained in State Tax Commn v. Miss. Power Co., 172 Miss. 659, 160 So.
907 (Miss. 1935):
Where the provisions of a statute are carried forward and embodied
in a codification or revision, in the same words, or which are
substantially the same and not different in meaning, the latter
provisions will be considered as a continuance of the old law
and not as a new or original enactment, and this is true both
where there is an express declaration to that effect in the
codification or revision, and also in the absence of such
declaration. This rule applies although the statute brought
forward has been simultaneously repealed by the codification
or revision. The effect of the continuance of the old law is that all
rights and interests thereunder are preserved.
Id. at 909 (emphasis added). Thus, McDaniels repeal argument is legally incorrect. See also
Doe, et al. v. Attorney W., 410 So. 2d 1312, 1315 (Miss. 1982); McDonald v. State Tax Commn,
158 Miss. 331, 130 So. 473, 474-475 (1930); Abbay v. Bd. of Levee Commrs, 83 Miss. 102, 35
So. 426 (1903); State v. Hill, 70 Miss. 106, 11 So. 789 (1892); see also Miss. Code. 1-1-25
(All statutes and parts of statutes which are repealed or abrogated by, . . . and which have not
been re-enacted or consolidated therein, shall continue to be so repealed. . . .) (emphasis
added).
3. The laws of 1970, 1979 and 1982 attempting to revamp Mississippis election
lawsdidnot gointoeffect.
In a similarly meritless argument, McDaniel, in Section IV of his brief, contends that
legislation in 1970, 1979 and 1982 that never went into effect evidences the Legislatures intent
to repeal all former election laws, including 3143 and 3144. No such intent can be inferred.
McDaniel ignores the explicit provisions in each piece of legislation where the Legislature
expresses its intent that the prior statutes were to remain in full force and effect should the new
laws be rendered unenforceable. As McDaniel acknowledges, none of these provisions came
into effect -- thus leaving the relevant provisions of the Mississippi Code of 1942 intact. See,
19
e.g., Jones v. Moorman, 327 So. 2d 298, 299-300 (Miss. 1976). The specific laws are set forth
below:
Laws of 1970, Chapter 506, 34:
Section 34. If any section, or part of a section, of either House Bill 362 or House Bill
363, Laws of 1970, is declared unconstitutional by a court of competent jurisdiction,
or is rendered unenforceable for any reason prior to January 1, 1971, then the Governor
of Mississippi shall by proclamation declare this act to be invalid and the laws of the
State of Mississippi, affected herein, shall remain in full force and effect as they were
prior to the passage of this act.
(emphasis added); see ADD 4. As McDaniel acknowledges, Chapter 506 was challenged in
federal court under Section 5 of the Voting Rights Act of 1965
6
in Evers v. State Board of
Election Commrs, 327 F. Supp. 640 (S.D. Miss. 1971). Ultimately, the Evers court issued an
injunction that blocked the law from taking effect. Evers, 327 F. Supp. at 644. Further, three
years later, the Department of Justice interposed objection under Section 5 of the Voting Rights
Act of 1965 and the law did not take effect. Appellants Br. at 23-24.
Laws of 1979, Chapter 452, 40-42:
Section 40. It is the intent of the Legislature that this act shall not be codified
unless it has been finally effectuated under Section 5 of the Voting Rights Act of 1965, as
amended and extended.
Section 41. The Attorney General of the State of Mississippi is hereby directed to
exhaust all options under Section 5 of the Voting Rights Act of 1965, as amended and
extended, in seeking to effectuate this act.
Section 42. This act shall take effect and be in force from and after the date it is
finally effectuated under Section 5 of the Voting Rights Act of 1965, as amended and
extended, provided the date it is finally effectuated is on or before June 15, 1979.
Provided further, if this act is not finally effectuated on or before June 15, 1979, but is
finally effectuated on a date thereafter, the date this act shall take effect and be in force
shall be January 1, 1980.
(emphasis added); see ADD 5.
__________________
6
Voting Rights Act of 1965 (89 P.L. 110, 79 Stat. 437 (Aug. 6, 1965)) was formerly codified at 42
U.S.C. 1973c but now codified at 52 U.S.C. 10301.**
20
As McDaniel points out in his brief, upon submission to the Department of Justice, this
chapter also failed to obtain preclearance as the Department interposed under Section 5 of the
Voting Rights Act of 1965. Thus, Chapter 452 of the Laws of 1979 never went into effect. See
Appellants Br. at 24.
Laws of 1982, Chapter 477, 7-9:
Section 7. Chapter 452 of the Laws of the General Session of 1979, which
provides for the open primary for of elections is hereby repealed.
Section 8. The Attorney General of the State of Mississippi is hereby directed to
submit this act, excluding Section 7 hereof, after its approval by the Governor, or after its
approval by the Legislature subsequent to a veto, to the Attorney General of the United
States or to the United States District Court of the District of Columbia in accordance
with the provision of the Voting Rights Act of 1965, as amended and extended.
Section 9. Section 7 of this act shall take effect and be in force from and after
passage. All other sections of this act shall take effect and be in force from and after
January 1, 1983, if it is finally effectuated under Section 5 of the Voting Rights Act of
1965, as amended and extended.
(emphasis added); see ADD 6.
In Section 7 of this Act, the Legislature expressly repealed Chapter 452 of the Laws of
1979, which contained repeal language regarding Sections 3143 and 3144, but which never went
into effect. Chapter 477 of the Laws of 1982 was ultimately rejected by the Department of
Justice and not precleared under Section 5 of the Voting Rights Act of 1965. See Appellants Br.
at 25. Section 7 of the chapter (repealing Chapter 452 of the Laws of 1979), however, was
enacted and took effect because it did not require preclearance under Section 5 of the Voting
Rights Act from the Department of Justice.
Though the Legislature attempted to create an open primary law rather than the
existing system, these laws were never approved by the Department of Justice. See, e.g., R.
Andrew Taggart & John C. Henegan, The Mississippi Election Code of 1986: An Overview, 56
Miss. L.J. 535, 537 n.12 (1986); Jones, 327 So. 2d at 299-300. Anticipating a situation where
21
this might occur, the Legislature expressly stated that the prior statutes, including Miss. Code
3143 and 3144, would remain in full force and effect as they have to this day. Compare, for
example, Miss. Code 3143 and 3144 toMiss. Code 23-15-921 and 923.
C. The 1942 Code Election Statutes, Including Sections 3143 and 3144 In Particular,
Were Carried Forward Without Material Changes.
Throughout his brief McDaniel contends that changes to the relevant statutes were
material and sweeping in nature. See, e.g., Appellants Br. at Sections V and VI. The
opposite, however, is true. A review of the legislative history and purpose of the Mississippi
Election Code makes two things clear: (1) no material changes were intended or made when the
current Mississippi Election Code was enacted in 1986; and (2) Kellum v. Johnson, 237 Miss.
580, 115 So. 2d 147 (1959), remains applicable in its interpretation of our current statutory
scheme.
1. Thelegislativehistoryof theMississippi ElectionCode.
As stated earlier, there was no method of contesting the result of an election as declared
by a party executive committee prior to 1908. The Legislature by Chapters 136, Laws of 1908,
provided a method of contest in such instances. Kellum, 115 So. 2d at 149; see ADD 3. That
Act, with slight and unimportant amendments appeared in the Mississippi Code of 1942, and
remained unchanged after the enactment of the Corrupt Practices Act of 1935, Section 3158, et
seq., of the Code of 1942. Kellum at 115 So. 2d 149.
By 1986, however, the election statutes in the Mississippi Code of 1942 were not
contained in a single title and chapter, but were instead scattered throughout the Code. Legal
commentators note, the Code previously contained a hodgepodge of statutes that, while
probably coherently ordered when originally enacted, had no apparent structure by 1986. R.
Taggart & Henegan at 537 n.12. As these commentators explain, [t]his anomalous situation
22
arose out of approval of certain legislative acts and disapproval of others [in the early 1970s] by
the United Sates Attorney General pursuant to his authority under the Voting Rights Act of
1965. Id., citing Jones v. Moorman, 327 So. 2d 298 (Miss. 1976).
For example, by the provisions of Chapters 506 and 508, Laws of 1970, the
[Mississippi] legislature attempted to repeal over forty sections of the [1942] Code dealing with
primary elections, including the [1942 Code sections in this case on this subject] . . . and thereby
abolish primary elections and to adopt . . . what is commonly known as an open primary law."
Jones, 327 So. 2d. at 299. The provisions of Chapter 506 and 508 were never approved by the
United States Attorney General, and thus never came into effect, leaving the relevant provisions
of the Mississippi Code of 1942 intact. Id. at 300. Thus, by 1984, Mississippis election laws
were spread over 11 chapters of the 1972 Code, and were further supplemented by a substantial
body of law found in the Mississippi Code of 1942. Taggart & Henegan at 537 n.12.
In short, [t]he prime motivation in enacting the Election Code was a broad desire to
consolidate the entire body of Mississippis election law (id. at 537), which was accomplished
through a 1986 bill that was signed into law on April 16, 1986 and would become effective
from and after January 1, 1987, pending approval under the Voting Rights Act. Id. at 547. It
was thereafter submitted to the United States Justice Department and approved. See id. at 547-
48.
7
The Mississippi Election Code now appears in a special pamphlet to the Mississippi Code
of 1972, Annotated, and is codified by the sequential numbering of the sections of the Act in a
single chapter of the Code Title 23. Id. at 537 n.12.
__________________
7
See also McDaniel v. Beane, 515 So. 2d 949, 951 n.1 (Miss. 1987) ([T]he provisions of chapter 495
were submitted on November 3, 1986, to the Attorney General of the United States for consideration and
preclearance under the provisions of the Voting Rights Act of 1965, as amended and extended. On
December 31, 1986, and on January 2, 1987, the Attorney General of the United States interposed no
objections to the changes involved in chapter 495, Laws of 1986, thereby implementing the effective date
of January 1, 1987, of the Mississippi Election Code.).
23
Regarding the specific statutes at issue in this case, the drafters of the 1986 Election Code
were clear in their intent to re-adopt the 1942 Code sections with only minimal changes, as
evidenced by the Certification of Public Records and Reports of William A. Neely, Jr. (R. 448-
69), who drafted Senate Bill 2234, also known as the Election Code of 1986, and who also
prepared a portion of the submissions on behalf of the State of Mississippi to the United States
Attorney General for pre-clearance of the Act under Section 5 of the Voting Rights Act of 1965.
Id.
As these submissions to the United States Justice Department show, the Legislature
stressed that its changes to 3143 (now Miss. Code 23-14-921) and 3144 (now Miss. Code
23-14-923) were made for clarification only and to reflect current practices.
8
See R. 463-64;
465-66 see also ADD 7(a track change comparison of each version of the pertinent statutes).
As detailed below, the substantial similarity of the prior and current statute versions is not
limited to the election challenge statutes, but also pertains to every statute cited in Appellants
Brief.
2. Therewerenomaterial changestotherelevant current electioncontest statutes
A side-by-side comparison of the statutes reveals there were no material changes. See
ADD 7. In fact, all pertinent sections of the 1986 Code, including the statutory timelines
discussed throughout Appellants Brief, existed in the Code of 1942 in virtually identical form.
For example, the 20-day deadline to initiate a primary election contest existed in 3143. That
same 20-day deadline was carried forward in 1986 and exists today in 23-15- 921. Section
3144 the statute analyzed in Kellum contained no explicit 20-day deadline, just as there is no
__________________
8
Specifically, the Legislature removed language regarding senatorial and flotorial executive committees
because they no longer exist and their former duties are performed by the state executive committee.
See R. 466. The proposed change also added to 3144 now Miss. Code 23-15-923 the phrase and
in legislative districts composed of more than one county or parts of more than one county,
acknowledging the existence of such districts. See id. at 465-66.
24
explicit 20-day deadline in 23-15-923. Former 3143 and 3144 provided the timing,
mechanism, and process for initiating a primary election challenge. The operative language of
3143 and 3144 was carried forward into 23-15-921 and 23-15-923 which now direct the
timing, mechanism, and process for initiating an election challenge.
The similarity of the prior and current versions does not end with the election challenge
statutes. Nearly every statute cited in Appellants Brief existed in almost identical form in the
prior Code of 1942 and was available for consideration by the Kellum Court:
1. Section 23-15-71, referenced on page 18 of Appellants Brief, allows two days for an
aggrieved elector to file a bill of exceptions to a decision of election commissioners.
This same two day time limit was set forth in virtually identical language in Section
3228 of the Code of 1942.
2. Section 23-15-597, referenced on pages 28, 29, and 33 of Appellants Brief, relates the
meeting of the County Election Commissioners on the first or second day after the
election to canvass returns and declare the election result, and thereafter transmit the
results to the state executive committee within 36 hours of declaration. This section
includes the same time periods carried forward from 3142 of the Code of 1942, and
were, thus, available for consideration by the Kellum Court.
3. Section 23-15-599, referenced on pages 12, 18, 28, and 29 of Appellants Brief, sets forth
the requirement of the state executive committee to transmit the statewide primary results
to the Secretary of State. The operative language of this statute was carried forward
from 3146 of the Code of 1942 and was before the Kellum Court, with the exception of
the 10-day limit to transmit the election result, which was added later.
4. Section 23-15-911, referenced on pages 12, 29, and 33 of Appellants Brief, sets forth the
12-day period from which a candidate may examine election results after the canvassing.
Section 3169 of the Code of 1942 is virtually identical to 23-15-911 and includes the
same 12-day period for inspection after canvassing and examination. This, too, was
before the Court in Kellum.
5. Section 23-15-927 is referenced throughout Appellants Brief and relates to the time to
file for judicial review of a contest after filing with the state executive committee. This
statute was carried forward from 3182 of the Code of 1942 with the same
forthwith time limitation and was before the court in Kellum. However, 927 was
amended in 2012 to add a 10-day time limitation which superseded the prior requirement
to merely file forthwith.
25
6. Section 23-15-937 which calls for prompt adjudication of a statewide election contest and
governs the venue of the contest and the circumstances warranting a special election
existed in almost identical form in 3187 of the Code of 1942.
The legislative history, together with a side-by-side comparison of the old and new code
sections, confirms that the Mississippi Election Code is merely a recodification or carrying
forward of the prior election statutes, with minor changes as to form. It was not a new scheme of
election law. Particularly relevant here is that there were no changes that would affect the timing
to initiate a state-wide election challenge.
D. Because There Were no Material Changes to the Election Statutes, Kellums 20-day
Deadline to File a State-Wide Election Challenge, as Engrafted on Miss. Code 23-
15-923, Applies Today.
The lack of any material changes to the relevant statutes is fatal to Appellants argument
under the re-enactment rule described above, and as specifically addressed by the Mississippi
Supreme Court in McDaniel v. Beane, 515 So. 2d 949 (Miss. 1987). In McDaniel, the circuit
court dismissed the challengers election contest for failure to comply with the Pittman/Pearson
rule a judicial construction of Miss. Code 23-15-927 requiring the candidate to attach with
his petition the signed certificates of two disinterested investigating attorneys. Id. at 951-52.
On appeal, McDaniel questioned the precedential value of Pittman v. Forbes, 186 Miss.
783, 191 So. 490 (1939) and Pearson v. Jordan, 186 Miss. 789, 192 So. 39 (1939), and their
judge-made requirement that the attorneys be disinterested. McDaniel, 515 So. 2d at 951-52.
The Court rejected McDaniels argument, first articulating the re-enactment rule: Where
validly enacted statutory language is brought forward in new codes or amended versions of the
original statutes, prior interpretations thereof remain persuasive. . . [absent] some indication
in the new amendment or enactment that prior interpretation should no longer be credited. Id. at
951. Describing Pittman, Pearson and two other decisions following or acknowledging their
26
construction of 23-15-927, the Court held: In the face of this authority, McDaniel paddles
upstream. Id. at 952.
In that case McDaniel argued that 23-15-927 does not say disinterested, and pointed
to language in 23-15-933 which did require two disinterested attorneys to sign a bill of
exceptions under the procedure delineated in that statute. Id. He reasoned that if the draftsmen
of Section 23-15-927 had intended to require that the attorneys certifying to the petition for
judicial review be disinterested they could well have employed the same language as appeared
in Section 23-15-933. Id. The Court disagreed, first noting that McDaniel acknowledges that
Section 23-15-933 says what the Special Tribunal read into Section 23-15-927. Id. From this
the Court held: The short answer is that the language of Section 23-15-933 has been in the
law since enactment of the Corrupt Practices Act. . . . That language was on the books at
the time Pittman, Pearson, Harris and Noxubee County were decided. Id. (emphasis
added).
The rule in McDaniel v. Beane translates directly to McDaniel v. Cochran. The pertinent
statutes cited throughout Appellants Brief are all substantially similar if not virtually identical
to their 1942 predecessor Code sections, and were available for review by the Kellum Court.
Accordingly, Kellum retains its precedential value and controls the outcome of this case. Like
the candidate in McDaniel v. Beane, McDaniel paddles upstream. Id. at 952.
E. The Doctrine of Stare Decisis also Shows that Kellums 20-day Deadline to File a
State-Wide Election Challenge Applies Today.
The doctrine of stare decisis likewise applies and supports application of the Kellum rule
here. Stare decisis is a doctrine of precedent, which requires courts to follow earlier judicial
decisions when the same point arises again in litigation. Caves v. Yarbrough, 991 So. 2d 142,
150 (Miss. 2008) (quoting Blacks Law Dictionary, 1173 (8
th
ed. 2004)). Here McDaniel claims
27
Kellum was wrongly decided and should not be followed by this Court. See, e.g., Appellants
Br. at 15. Even if this argument had merit, which it does not, McDaniel made no showing
whatsoever in the trial court, or here, that a departure from Kellums sound holding is warranted
here. This is so because under the doctrine of stare decisis [a] former decision of this court
should not be departed from, unless the rule therein announced is not only manifestly wrong, but
mischievous. Caves, 991 So. 2d at 151, quoting Forest Prod. & Mfg. Co. v. Buckley, 107 Miss.
897, 899, 66 So. 279 (1914). That is, under State ex rel. Moore v. Molpus, 578 So. 2d 624, 635
(Miss. 1991) and its progeny, the Court looks for error, but, finding that, we look for more and
we look largely in the area of public or widespread disadvantage. Ordinarily, we do not overrule
erroneous precedent unless it is pernicious, . . . impractical, . . . or is mischievous in its
effect, and resulting in detriment to the public.. . . . We look for evils attendant upon a
continuation of the old rule." Molpus, 578 So. 2d at 635 (internal citations omitted).
9
McDaniel has not even argued, much less shown, any such circumstances. Indeed, as
described in Section B(2) above, Kellum is based on sound principles of statutory construction,
and was decided in the light of the same policy concerns applicable today: The need for a
speedy determination of an election primary winner to get the proper nominee on the ticket for
the general election. CompareKellum, 115 So. 2d at 150 ([I]t is obvious that primary election
contests, if they are to be allowed and the favorable results thereof come to full fruition, must be
conducted speedily.) to Waters v. Gnemi, 907 So. 2d 307, 316 (Miss. 2005) (Observing that
election contests . . . are by their very nature required to be put on a fast-track by both election
officials and the courts. While we want to assure fairness and discern the will of the voters, we
__________________
9
See Caves v. Yarbrough, 991 So. 2d 142, 151-152 (Miss. 2008). Accord Land Commr v. Hutton, 307
So. 2d 415, 421 (Miss. 1974); Crosby v. Alton Ochsner Med. Found., 276 So. 2d 661, 671 (Miss. 1973);
Westmoreland v. State, 246 So. 2d 487, 497 (Miss. 1971); New York Life Ins. Co. v. Nessossis, 189 Miss.
414, 423, 196 So. 766, 768 (1940); Childress v. State, 188 Miss. 573, 577, 195 So. 583, 584 (1940).
28
must move promptly so as to not disrupt the election process.); andBarbour v. Gunn, 890 So.
2d 843, 846-47 (Miss. 2004) (Emphasizing the demand for timeliness regarding the election
challenge, and particularly noting the trial courts factual finding that the general election was
so near at hand that a revote was needed immediately to preserve the rights of voters.); see also
Section F, below. The doctrine of stare decisis applies and requires the dismissal of McDaniels
contest due to his failure to meet the 20-day condition precedent set forth by this Court in
Kellum.
F. The Plain Meaning Rule Does Not Apply Here.
Throughout his brief, and particularly in Section I, McDaniel argues the plain meaning
rule of statutory construction applies here. In so doing, McDaniel ignores the Kellum holding
altogether and the carrying forward of 3143 and 3144 into the current Election Code. He
proceeds as if the substance of 23-15-921 and 23-15-923 was first introduced into law in
1986. Then, attempting to re-litigate Kellum, McDaniel repeatedly states the obvious fact that
23-15-923 contains no explicit 20-day deadline. From this, he argues that when a statute is
clear, the Court should simply apply the plain meaning of the statute. Appellants Brief at 17
(citing Tillis v. State, 43 So. 3d 1127 (Miss. 2010) and 20-22 (discussing City of Natchez v.
Sullivan, 612 So. 2d 1087 (Miss. 1992) (addressed below). In the same breath, however,
McDaniel acknowledges the corollary to this rule, that [c]ourts have a duty to give statutes a
practical application consistent with their wording, unless such application is inconsistent with
the obvious intent of the legislature. Appellants Brief at 17 (citing Mississippi State and
School Employees Life and Health Plan v. KCC, Inc., 108 So. 3d 932, 936 (Miss. 2013)).
This corollary rule was, of course, the very reason Kellum applied the 20-day county
election challenge deadline from 3143 (now Miss. Code 23-15-921) to state-wide election
contests under 3144 (now Miss. Code 23-15-923). The Kellum Court specifically noted that
29
primary election contests must be conducted speedily, and the idea that there was no
intended deadline for filing a multi-county or statewide election contest was inconceivable and
would convict the Legislature of unaccountable capriciousness if it were followed. Kellum,
115 So. 2d at 150.
The legislative intent requiring speedy resolution of primary election contests is
undeniable. See Miss. Code 23-15-937 (formerly 1942 Code Section 3187) (requiring that the
special judge hear the evidence and make findings of fact with due diligence and requiring
that the hearing must be completed and final judgment rendered in time to permit the printing
and distribution of the official ballots at the election for which the contested nomination is
made.); see also Waters v. Gnemi:
We note that election contests (both primary and general) are by
their very nature required to be put on a fast-track by both
election officials and the courts. While we want to assure fairness
and discern the will of the voters, we must move promptly so as to
not disrupt the election process. Candidates and their families,
friends and supporters have worked too hard.
907 So. 2d 307, 316 (Miss. 2005).
The urgency of resolution is of such paramount importance that our Election Code
imposes criminal liability upon any special judge who fails to proceed promptly and with
diligence:
When any judge or chancellor lawfully designated to hear a contest
or complaint, in this section mentioned, shall not promptly and
diligently proceed with the hearing and final determination of such
a contest or complaint he shall be guilty of a high misdemeanor in
office unless excused by actual illness, or by equivalent excuse.
Miss. Code 23-15-937.
10
__________________
10
Indeed, the Legislature repeatedly says that there are time deadlines for things to happen in light of the
need to reach a speedy resolution of the election challenge. McDaniels brief, in fact, illustrates this
repeatedly. For example, the party executive committee loses the right to decide a constitutionally-
30
Accordingly, this Court in Kellum correctly held it is inconceivable that the Legislature
intended an opened ended time period to initiate a statewide election challenge, the very result
for which McDaniel argues here. See Appellants Brief at p. 16 and 19 (contending 923
does not impose a requirement that the election-contest complaint authorized thereunder be filed
within a specified period of time and the absence of a deadline from 923 makes it similar to
other sections of the Election Code that do not impose a time requirement.). The concept of an
open-ended period to challenge a statewide election (presumably any time within the statute of
limitations) is repugnant to our Election Code.
To convince the Court that our legislature intended an open-ended time period to file a
statewide election contest, McDaniel relies heavily upon City of Natchez v. Sullivan, 612 So. 2d
1087 (Miss. 1992). See Appellants Brief at pp. 20-22. He cites this case for the proposition that
23-15-923 is unambiguous and the Kellum Court should have therefore applied its plain
meaning, and not resorted to rules of statutory construction. But McDaniel espouses the pari
materia doctrine (used by the Kellum Court) in the very same section of his brief, advising that
Election Code 23-15-923 must be read in the context of the entire Election Code and
[s]tatutes that address the same subject or are part of a single legislative act must be read
together. Appellants Brief at 22 (citing Mississippi Dept. of Transportation v. Allred, 928 So.
2d 152, 155 (Miss. 2006)).
McDaniel does the same thing in relying on Noxubee County Democratic Executive
Committee v. Russell, 443 So. 2d 1191 (Miss.1983) to support his argument that in a state-wide
_________________
protected right if it does not act within 10 days! Miss. Code 23-15-927. The designated judge must
rule at the earliest possible date and the contestee must file his answer promptly. Miss. Code 23-15-
929. The matter is to be decided in time to permit the printing and distribution of the official ballots.
Miss. Code 23-15-937. While an election can proceed, if the contestee loses the challenge he must
vacate his office, an extreme remedy. Id. In the light of these drastic deadlines and remedies it makes
no sense to rule that the challenger can take his or her sweet time in bringing the initial challenge.
31
election, a challengers review period could potentially extend beyond the 20-day filing deadline.
See Appellants Br. at 29, 32-34. Though this is not true (see Section G(2), below), the relevant
point here is that the Court in Noxubee County v. Russell interpreted the phrase canvass and
examination found in Miss. Code 23-15-911 to also encompass the declaration of the winner
by the county executive committee. Id. at 1195-96. If it construed the statute otherwise, the
Court held, it would ascribe to the Legislature an absurd purpose, something we decline to do.
Id. at 1196. That is the precise reasoning used by the Kellum Court in holding that the 20-day
deadline for county election challenges likewise applied to state-wide elections under then Miss.
Code 3144. See Kellum, 115 So. 2d at 150-51.
Thus, by his own arguments, McDaniel tacitly acknowledges that City of Natchez has no
application here. The issue in City of Natchez was whether a police officers four years of prior
military service counted toward his eligibility for statutory retirement benefits under Miss. Code
21-29-139. Id. at 1089-90. The statute required only that a member have served on active
duty. Id. at 1089. There was no statutory language requiring any particular length of prior
military service in order to qualify. Id. at 1089. (The time of military service in relation to
employment as a member [was] not set forth.). Applying the statute according to its plain
meaning, the Court refused to read a length-of-service requirement into the statutory language
when no such time requirement existed. Id. at 1090.
City of Natchez is inapposite to the present case. In Kellum, 3144 (now 23-15-923)
expressly referred to 3143 (now 23-15-923), mandating that that election challenges should
be conducted in like manner with 3143. The Court in Kellum also emphasized the public
policy need to speedily resolve the primary election challenge at issue. Kellum, 115 So. 2d at
150. In City of Natchez there was no reference to a sister statute from the same Act containing a
32
clear time requirement, and, more importantly, no overarching policy demanding a time
requirement. See Miss. Code 23-15-937 and Waters, 907 So. 2d at 316. Further, the holding in
City of Natchez, that a police officers prior military service counted toward his eligibility for
retirement benefits regardless of how long he served, was not repugnant to the rest of the code.
Lopez v. Holleman, 69 So. 2d 903 (Miss. 1954) is instructive. Lopez concerned a special
election challenge under Miss. Code 3287 (1942), which did not contain an explicit right for
ballot inspection relating to that challenge. One issue before the Court was whether the circuit
court was authorized to issue a writ of mandamus to the circuit clerk to permit inspection of the
ballot boxes. Id. at 907. The Court compared 3287 to 3169, which did allow ballot
examination in primary election challenges. In so doing, the Court found that the primary
statute, 3169, was in pari materia with 3287, as indicative of a general policy of the state on
a cognate subject matter to allow contesting candidates the right to obtain the facts concerning an
election precedent to filing a contest. Id. In this regard, the Court held: Statutes relating to
the same or a closely allied subject may be regarded as in pari materia where the statute in
question is silent. Id. Lopez, not City of Natchez, applies here.
At bottom, McDaniels proposed plain meaning interpretation of 23-15-923 ignores
the solid principles applied in Kellum and would eviscerate every Election Code statute intended
to achieve speedy resolution of a challenge.
11
The Kellum Court knew this could not be the
__________________
11
McDaniel can point to no other statutory mechanism that ensures the speedy filing of a 23-15-923
election challenge. He argues that Section 23-15-937 likely provides all the incentive required to
motivate an election challenger to file a complaint as soon as possible, as it provides that if a final
decision on an election contest is not made by the time the official ballots are to be printed, the name of
the nominee declared by the party executive committee shall be printed on the official ballots as the party
nominee. Appellants Brief at pp. 21-22. However, 23-15-937 provides no such incentive, as it
specifically contemplates the challenge proceeding beyond the general election if necessary and, if
successful, vacation of the office and initiation of a special election. See Miss. Code 23-15-937
(formerly 1942 Code 3187).
33
intent of the Legislature, and thus it resorted to settled rules of statutory construction, read the
election statutes in pari materia, and correctly applied the 20-day limit to the state-wide contest
there at issue. Kellum, 115 So. 2d at 150.
G. The Statutory Changes Addressed by McDaniel are Immaterial.
In sections V and VI of his Brief, McDaniel points (twice) to a series of minimal
statutory changes to the Election Code and tries to argue that they are sweeping and
restructuring in nature. Appellants Brief at 27. McDaniel contends these minimal changes
render Kellum inapplicable to Miss. Code 23-15-923.
12
In addressing these changes, McDaniel
says there are two types of changes, being a 1) a change to the language of the statutes; and 2)
changes to statutes governing the time in which a challenger has access to election records.
Appellants Br. at 27. These categories are addressed below.
1. Theimmaterial changestothestatutorylanguage.
McDaniel argues:
Section 3144 by indirect language was limited to allegations of fraud;
Section 3144 did not include exceptions or coordinate with other statutes;
Section 3144 did not apply to legislative districts composed of one county or less;
__________________
12
McDaniel goes so far as to say that none other than Secretary of State Delbert Hosemann . . .
concluded that 23-15-923 did not require Chris McDaniel to file his election-contest complaint with the
SREC within any specific number of days. Appellants Br. at 32. Even if comments by Mr. Hosemann
carried precedential weight here or before the Special Circuit Court, no probative evidence of this
statement was offered by McDaniel. All he cites to is an internet article stating that a spokeswoman for
the secretary of states office said there is no deadline for a state-wide election challenge. This article
was not offered into evidence had McDaniels counsel attempted to do so, counsel for Cochran would
have objected on both hearsay and relevancy grounds. Cochran moved to strike the article from the
record. See Mot. to Strike (part of ADD 2) see also n. 1, above. The Special Circuit Court allowed it
into the record because it was apparently tendered to the court in a packet of documents and was
discussed in argument (see Order Denying Respondents Motion to Strike (part of ADD 2)), but
expressly included in its Order that the article was not tendered into evidence nor received by the court
into evidence; and it was not relied upon by the court. Id. Cochran renews his hearsay and relevancy
objections, preserved before the Special Circuit Court, as to the subject articles admissibility.
34
Section 3144 did not apply to flotorial contests;
13
Section 3144 did not specify who could file the contest petition; and
Section 3144 was formally repealed when 921 was enacted in 1986.
McDaniel does not explain how or why any of these minimal changes are material or even
pertinent to the time limitation for initiating an election challenge. They are not. For example:
Coordination with other statutes is nothing because the challenges to qualifications and
challenges to elections have always been treated separately.
The reference to a district composed of more than one county is a rendering into common
English of the original flotorial district. See Blacks Law Dictionary (A Floterial
district is one which includes within its boundaries several separate districts of political
subdivisions). That is no change.
The addition of a person desiring to contest the election confirms that this was the
sense of the 1908 statute and illustrates that Kellums reading of it was correct.
The final distinction McDaniel offers is the formal repeal of the 1942 Code. See Appellants
Brief at p. 30. Although McDaniel characterizes this as the the most significant distinction, it
could not be less significant. See Sections B, above. McDaniels position that these minor
changes effectively set aside the precedential authority of Kellum v. Johnson is untenable.
2. McDanielsargumentsregardingthetimetoreviewballot boxesdoesnot follow
thestatutoryschemeor judicial precedent.
Essentially, the second argument raised by McDaniel is that a 20-day deadline under
23-15-923 would create a conflict in the [current] statutory scheme. See Appellants Br. at 28-
29, 32-37. The proposed conflict, however, is based on a misreading of the statutes.
McDaniel contends that a candidates 12-day window to review election-results
__________________
13
As noted above, the Legislature removed language regarding senatorial and flotorial executive
committees because they no longer exist and their former duties are performed by the state executive
committee. R. 448-69.
35
documentation
14
in any county under 23-15-911 does not begin until the state executive
committee transmits the state-wide election results to the Secretary of State which must occur
within 10 days of election under 23-15-599. Appellants Br. at 29, 32-34. This, he argues,
when coupled with a 20-day deadline, potentially subjects a candidate to filing a challenge with
two days left to examine the contents of ballot boxes. Id.
But the statute is clear that a candidates 12-day time limit to examine the [ballot] box
and its contents begins once the election commission or executive committee has
canvass[ed] and examin[ed] . . . the box and its contents, as follows:
. . . At any time within twelve (12) days after the canvass and
examination of the box and its contents by the election
commission or executive committee, as the case may be, any
candidate or his representative authorized in writing by him shall
have the right of full examination of said box and its contents upon
three (3) days' notice of his application therefor served upon the
opposing candidate or candidates. . . .
Miss. Code 23-15-911(1) (emphasis added). The statute applies to county certification which
must be completed by the second day after the election, at which point the review process of the
[ballot] box and its contents may begin. There is no state ballot box. The canvass and
examination of the box and its content only occurs at the county level.
McDaniel cites Noxubee County Democratic Executive Committee v. Russell, 443 So. 2d
1191 (Miss. 1983) as support for this argument that in a state-wide election a challengers review
period could potentially extend beyond the 20-day filing deadline. There, addressing a county
election, the Court held that the canvass and examination language in Miss. Code 23-15-911
encompassed the declaration of the winner by the county executive committee. Id. at 1195. But
even under that decision, the losings candidates 12-day time for review still falls within the 20-
__________________
14
The applicable statute, Miss. Code 23-15-911, actually provides for review of the [ballot] box and
its contents.
36
day deadline period, as detailed below. Moreover, Noxubee County v. Russell also illustrates that
a losing candidates 12-day ballot box review is independent from the 20-day deadline he must
meet to file his election challenge.
Noxubee County v. Russell involved a county election contest between Russell, the losing
democratic candidate for Noxubee County sheriff, and Walker, the declared winner. The second
primary election to determine the party nominee for sheriff took place on August 23, 1983.
Russell, 443 So. 2d at 1192. The county democratic executive committee made a final count of
the ballots on August 31, 1983, but did not meet and declare Walker as the winner until
September 9, 1983. Id. at 1193. Russell, the losing candidate, timely filed his election contest
within 20 days on September 12, but did not request to examine returns under Miss. Code 23-
3-23 until September 19. Id. Russell then amended his petition on September 30 after he
examined the ballots. Id. The case proceeded to a trial on the merits, and Russell was
subsequently declared the winner. Id.
On appeal, Walker claimed that Russells case should have been dismissed because he
did not request a review within 12 days of the county committees canvass and examination of
the election ballots under then Miss. Code 23-3-23. Id. at 1194. According to Walker, the 12-
day time period for review began on August 31, the date the county election committee made its
final count, so Russells request for review on September 19 was too late. Id. at 1195. Russell
claimed his request for review was timely, because the 12-day time limit did not begin to run
until the county executive committee declared and certified the winning candidate on September
9. Id.
The Court agreed with Russell, holding that the only logical interpretation of the canvass
and examination language in then Miss. Code 23-3-23 was that this task was not completed
37
until [the county executive committee] . . . has certified the returns and declared an official
winner. Id. at 1195. After all, the losing candidate needed to know the outcome of the election
before proceeding. Id. at 1195-96.
But nothing in Noxubee County v Russell says that certification or declaration of the
winner meant when the election results were to be transmit[ted] to the secretary of state under
then Miss. Code 3146 (1942). Indeed, McDaniels argument makes no sense under the present
statutes because tabulated election results for both county and state-wide elections must be sent
to the Secretary of State within 10 days of the election. See Miss. Code 23-15-599(1)(a) (state
executive committee to transmit results to Secretary of State within 10-day deadline from date of
state and state district election or legislative election for districts consisting of more than one
(1) county or parts of more than one (1) county); Miss. Code 23-15-599(2)(a) (county
executive committee to transmit results to Secretary of State within 10-day deadline from date of
county election). If this deadline would start the 12-day review period, whether a 20-day
deadline is imposed under Miss. Code 23-15-921 (county elections) or Miss. Code 23-15-
923, a losing candidates 12-day review period could potentially fall outside the candidates
deadline for filing his challenge under either scenario.
Instead, even if Noxubee County v Russell applies in a state-wide election context, the
pivotal time for ballot box review begins when the losing candidate learns of the election
results (443 So. 2d at 1195) a process that takes place for both county and state-wide elections
pursuant to Miss. Code 23-15-597 and does not take the 12-day review period outside the 20-
day deadline for filing an election challenge under either scenario.
In a county election, returns are to be canvassed and result announced on the first or
second day after the election, which, under Noxubee County v. Russell, starts the 12-day review
38
period running from Day 3 to Day 14. See Miss. Code 3142 (1942), now Miss. Code 23-15-
597(1).
In a state-wide election, the county executive committee must canvass the returns by the
first or second day after the election (Days 1-2), and return these certified results to the state
executive committee within thirty-six hours after the returns are canvassed and the result
ascertained. (Day 4). The state executive committee must then meet a week from the date of
the election (Day 7) to canvass the returns, and to declare the result, and announce the names of
[the winning nominee]. Thus, if Noxubee County v. Russell applies it would start the losing
candidates 12-day review period running from Day 8 to Day 19. See Miss. Code 3142 (1942),
now Miss. Code 23-15-597(1).
As shown, the time for ballot box review does not extend beyond the 20-day filing
deadline in either case.
Finally, McDaniels fear that a 20-day deadline would prevent adequate ballot box
review before filing an election-contest complaint (Appellants Br. at 34), is belied by the very
facts in Noxubee County v. Russell; the Pyron v. Joiner, 381 So. 2d 627 (Miss. 1980) decision;
and a contestants liberal ability to supplement his complaint, once filed. As discussed above,
Russell had not undergone any ballot box review when he filed his challenge (443 So. 2d at
1193), and Russell supplemented his petition once his review was complete. Id. Though
Harpole v. Kemper County Democratic Exec. Comm., 908 So. 2d 129, 135 (Miss. 2005), cited by
McDaniel at p. 34 of his brief, may indeed show the logic that some review of the ballot box
contents must take place before a complaint is filed, it does not follow that the 20-day filing
deadline infringes on a contestants ability to do so as Pyron v Joiner shows. There Shag
Pyron challenged the state executive committees certification of Bob Joiner as the winner in the
39
Democratic primary election for Highway Commissioner from the Southern District. 381 So. 2d
at 627. Pyron filed his challenge in 20 days -- despite the fact that the election covered the entire
Southern Highway District, which encompassed thirty counties at that time. Id. at 627-28. (The
election took place August 7, 1979, and Pyrons challenge was filed August 27, 1979).
Nor does a 20-day filing deadline hinder a challengers ability to supplement as required.
Indeed McDaniel twice supplemented his original petition in this very case. R.E. 3; R. 285-359;
R.E. 3; R. 360-427. See also Waters v. Gnemi, 907 So. 2d 307, 325-26 (Miss. 2005)
(contemplating evidentiary supplement to original petition). What is important is that the
original complaint specify a claim under Miss. Code 23-15-923; any amendment . . . made
which merely elaborates upon those facts and sets forth additional incidental facts not changing
the original picture presented, although those incidental facts may be necessary, in point of strict
law, to the statement of a good cause of action, the amendment introduces no new cause.
Harris v. Stewart, 187 Miss. 489, 193 So. 339, 344 (1940) (citing Illinois Cent. R. Co. v. Wales,
177 Miss. 875, 889, 171 So. 536, 539 (1937)); see Waters, 907 So. 2d at 325-26.
Nothing excuses McDaniels late-filed election challenge, or conflicts with a 20-day
deadline to file such a challenge. McDaniels statutory conflict argument is without merit.
H. Barbour v. GunnDid Not Overrule KellumBecause the 20-Day Deadline For Filing a
State-Wide Election Challenge was not Addressed in that Case.
McDaniel relies on Barbour v. Gunn, 890 So. 2d 843 (Miss. 2004) as support for his
argument that he is not bound by the Kellum 20-day filing deadline, as now engrafted on to Miss.
Code 23-15-923. But nowhere in the Barbour v Gunn decision did the Court so hold. In fact,
the parties did not raise or address the 20-day deadline issue and that issue was never presented
to the trial court or to this Court. See Barbour, 890 So. 2d at 844-46.
40
1. TheBarbour v. Gunndecision.
The only jurisdictional issue addressed by the Court in Barbour v Gunn was whether the
trial court had authority to hear the matter under Miss. Code 23-15-927, which allows a
contestant to file a complaint with the circuit court where the executive committee shall fail to
promptly meet or having met shall fail or unreasonably delay to fully act upon the contest or
complaint, or shall fail to give with reasonable promptness the full relief required by the facts
and the law. . . . Barbour, 890 So. 2d at 846 (quoting Miss. Code 23-15-927). There, Gunn
filed in circuit court eight days after filing with the state executive committee, and Barbour
argued that this was contrary to the statute. This Court disagreed and held that Gunns filing in
circuit court complied with the statute. Nevertheless, McDaniel argues that because the Barbour
v Gunn Court found that the trial court had jurisdiction to hear the election challenge under 23-
15-927, without mention[ing] or analyz[ing] Kellum which was decided under the predecessor
statutes to 23-15-921 and 23-15-923, this means Kellums precedential authority was set
aside with the repeal of the election statutes on which it had been based. Appellants Br. at 41.
A discussion of the Barbour v Gunn case shows the fallacy of this argument.
Barbour was originally certified as the winner of the August 5, 2003 Republican primary
election for the Mississippi House of Representatives District 56 race. His opponent, Gunn, filed
an election contest with the State Republican Executive Committee (SREC) on September 8,
2003, 34 days after the election. Gunn met with the SREC, but before a scheduled hearing on
the matter, Gunn filed his complaint for judicial review with the circuit court on September 9.
Barbour, 890 So. 2d at 844. [A]sserting the broad powers vested in it by the Mississippi
Election Code and a demand for timeliness (id. at 846), the trial court heard the contest and
ultimately ordered that a new election be held in two precincts. Id. at 844.
41
On appeal, Barbour claimed Gunn had no statutory authority under Miss. Code 23-15-
927 to file his petition in circuit court, having not given the SREC a reasonable time to act. The
Court disagreed, finding instead that the trial court properly found that it had jurisdiction to
proceed in this matter under Miss. Code 23-15-927. Id. at 847 (discussing the application of
23-15-927 to the circumstances before it). In contrast, the Court specifically stated that [w]e do
not address, nor do we need to, whether the SREC could have determined the matter itself. Id.
at 847 n. 2. Thus, the Court (i) only addressed the jurisdictional issues arising under Miss. Code
23-15-927; and (ii) expressly declined to address the SRECs ability to determine the matter
itself. Nothing in Barbour v Gunn undermines Kellums precedential value regarding the initial
20-day filing deadline in this case.
2. TheCourtssilenceinBarbour vGunndoesnot overruleKellum.
McDaniel essentially argues, however, that the Courts silence in Barbour v Gunn is
authority for this Court to find that the trial court erred in dismissing his untimely challenge in
this case. See Appellants Br. at 42-46. This argument is refuted by Foster v. Harden, 536 So.
2d 905 (Miss. 1988). There the Court affirmed the trial courts determination that it did not have
jurisdiction to hear Fosters election challenge to the residency qualifications of the other
candidates -- despite the fact that the Court had decided the issue differently in Gadd v.
Thompson, 517 So. 2d 576 (Miss. 1987). Foster, 536 So. 2d at 907. Indeed, in Gadd the special
tribunal assumed jurisdiction over an election contest on the residency qualification issue, found
Gadd did not meet the residency requirements, and ordered a new election subsequently won by
Morris. Gadd, 517 So. 2d at 578. On appeal, the majority Court affirmed the trial courts
decision on the merits, without addressing any jurisdictional issue. Id. at 579.
The Foster Court refused to rely on its silence in Gadd to support jurisdiction in Fosters
case. Instead, it made the independent determination that it had no jurisdiction to hear her
42
residency requirement election challenge. Foster, 536 So. 2d at 907. Under Foster, this Court is
in no way bound to treat Barbour v Gunn as precedent on the 20-day deadline issue.
Nor does McDaniels reliance on Drummond v. State, 184 Miss. 738, 185 So. 207 (1938)
support his contention that Barbour v Gunn essentially overrules Kellum and the 20-day deadline
that has been engrafted on Miss. Code 23-15-923. McDaniel, in fact, did not even submit this
decision to the trial court when asked for submissions on this very issue. See R.E. 10; R. 521-23,
526-234 (McDaniels supplemental briefing addressing only the Barbour v Gunn decision). But
even if he had, no reasoned interpretation of Drummond supports McDaniels illogical argument.
At issue in Drummond was whether the Court had jurisdiction under a statute allowing a
direct appeal to the high court from an inferior court. In two earlier decisions, the Court had
accepted jurisdiction under direct appeal statutes without explicitly addressing the grounds for its
jurisdiction (185 So. at 209); and no express judicial precedent existed contrary to the Courts
assumption of jurisdiction. Id. at 210. Under these circumstances, the Court held that the
Courts assumption of jurisdiction in the prior cases necessarily implies it found it had
jurisdiction under the direct appeal statutes there at issue. Id. at 209-10.
15
But nowhere in Drummond does the Court hold that jurisdiction by implication can serve
to overrule express judicial precedent to the contrary that has been engrafted on a separate
jurisdictional statute unaddressed by the Court. Applied here, in the face of Kellums pre-
__________________
15
McDaniels reliance on Drummond is based upon the statement that jurisdiction can be implied even
though the issue is not discussed. Yet nothing in Kellum says that the 20-day deadline it imposed for
filing a state-wide election challenge is a jurisdictional issue. The Court held, instead, it is a condition
precedent to the right to file a contest, and that it need not have been raised in a special plea. Amicus
Curiae Conservative Action Fund agrees, succinctly explaining in its brief that [t]he purported 20-day
deadline at issue here was not a jurisdictional restriction, but merely a condition precedent to the right to
file a contest. Brief of Amicus Curiae at 12, quoting Kellum, 115 So. 2d at 150. Cochran raised this
issue in both its Motion to Dismiss (R. 428-30) and its Answer and Affirmative Defenses (ADD 2) (see
Second and Fourth Defenses), filed the same day, thus no waiver can be argued. The general rule applies:
[A] case is not binding precedent on a point of law where the holding is only implicit or assumed in the
decision but is not announced. 20 Am Jur 2d Courts 134.
43
existing, express determination that the 20-day deadline applicable to county election contest
also applies to statewide contests, engrafted upon Miss. Code 23-15-923, the Drummond
decision carries no weight. This is particularly true with respect to the Barbour v. Gunn
decision, where two separate jurisdictional statutes were implicated, the 20-day condition
precedent under Miss. Code 23-15-923, and a courts jurisdiction under the judicial review
statute, Miss. Code 23-15-927. The Court did meet its fundamental duty to determine the
trial courts jurisdiction over Gunns appeal under Miss. Code 23-15-927, but expressly
declined to address the SRECs ability to determine the matter itself (Barbour, 890 So. 2d at
847 n. 2) which necessarily would include the SRECs jurisdiction over the contest in the first
place.
Moreover, the Barbour v. Gunn Court, like the KellumCourt, repeatedly emphasized
the need to proceed with Gunns election challenge as expeditiously as possible, recognizing the
SRECs concern that they would not have time before the general election to decide the issues;
therefore Gunn seized the reins of his complaint and steered it directly to circuit court. Barbour,
890 So. 2d at 847. Under these facts, the Court held that filing in circuit court under Miss. Code
23-15-927 was a completely permissible procedure, particularly in the light of the trial
courts factual finding that the general election was so near at hand that a revote was needed
immediately to preserve the rights of voters. Id. Given this emphasis on the demand for
timeliness (id. at 846), there is no basis to assume the Court had actually considered, yet
rejected, the 20-day election challenge deadline. Under these circumstances, the general rule,
long-established by the United States Supreme Court, should apply: [T]his Court is not bound
by a prior exercise of jurisdiction in a case where it was not questioned and it was passed sub
silentio. United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 38 (1952) (holding that
44
the Court's prior exercise of jurisdiction was not binding precedent because the issue of
jurisdiction was not raised or addressed) (citations omitted); see also, e.g., Ariz. Christian Sch.
Tuition Org. v. Winn, 131 S. Ct. 1436, 1448 (2011) (When a decision neither notes nor
discusses a potential jurisdictional defect . . . the decision does not stand for the proposition that
no defect existed.); Doe v . Tangipahoa Parish Sch. Bd., 494 F.3d 494, 498 (5
th
Cir. 2007)
(Judge Barksdale's dissent intimates that lower courts can infer standing from the Supreme
Court's decision in similar Establishment Clause cases where the issue was not ruled on by the
Court. This proposition is incorrect. Going back to Chief Justice Marshall, the Court has
consistently held that it "is not bound by a prior exercise of jurisdiction in a case where
[jurisdiction] was not questioned and it was passed sub silentio.") (emphasis added), citing
Tucker Truck Lines, 344 U.S. at 38 (other U.S. Supreme Court citations omitted).
Finally, to imply that the Court in Barbour v. Gunn found that the SREC had
jurisdiction under Miss. Code 23-15-923 would be to assume the Court considered Kellum and
overruled it. But any such action would implicate constitutional separation of powers issues in
that the Kellum 20-day rule, having been engrafted onto Miss. Code 23-15-923, can only be
changed by legislative not judicial action. See Section B, above, citing, e.g., Crosby v. Alton
Ochsner Medical Foundation, 276 So. 2d 661, 670 (Miss. 1973) (When a statute is repeatedly
re-enacted in essentially the same language and by its retention in all subsequent codes, a
decision of this Court interpreting the statute becomes in effect a part of the statute. Therefore, if
the statute is to be amended, it should be done by the legislature and not by judicial decision.);
see also Miss. Const. art. 1, 1 and 2 (1890).
This Court rejected such a result in Foster v. Harden, 536 So. 2d 905 (Miss.1988),
discussed above. There the Court noted that in Gadd, where the Court considered the election
45
challenge on the merits, the majority discussed neither jurisdiction, nor the constitutional
implications raised by Miss. Const. art. 4, 38 (1890), which unambiguously provides that the
legislature shall judge . . . the qualifications, return and election of its own members. 536 So.
2d at 906 (quoting Miss. Const. art. 4, 38 (1890)). As such, the Court held that it would not
assume jurisdiction based upon the Gadd Courts silence: This Court does not ordinarily reach
constitutional issues unless they are raised. A constitutional issue not raised cannot be
considered as having been decided, sub silentio. Id. at 907. This same principle applies equally
here.
I. The Courts Application of Kellumwould not Overrule Barbour v. Gunn or Lead to
a Change in the Result.
McDaniel argues that the application of Kellum to the present case would have the effect
of overturning this Courts ruling in Barbour v. Gunn, voiding the case ab initio and possibly
subjecting the winner of the election, the current Speaker of the Mississippi House of
Representatives, to removal from office. Appellants Br. at 46. There are at least two
fundamental flaws in the Appellants argument.
First, there was no ruling on the application of Kellum in Barbour. In fact, the issue of a
20-day deadline was not raised by either party at any stage of the contest, not before the SREC,
or before the trial court, or before this Court. See Barbour, 890 So. 2d at 844-46. Therefore,
there is no ruling or decision by the SREC, trial court, or the Supreme Court in Barbour that is in
danger of being voided, ab initio or otherwise. See Foster, 536 So. 2d at 907 (Jurisdictional
issue having constitutional implications not raised in prior cases cannot be considered as having
been decided, sub silentio.). Contrast this with the present case where the SREC, in declining to
rule on Senator McDaniels challenge, gave as one of its reasons the need for the courts to
address the issue of the timeliness of this challenge and cited Kellum, which appears to
46
impose a 20 day time limit from the runoff to file a challenge. . . . R. 426 (Letter from Joe Nosef
to Mitch Tyner, August 6, 2014).
Second, McDaniels dire warning about the unintended consequences that could befall a
current officeholder ignores the simple fact that the term of office at issue in Barbour v. Gunn
has long since ended and two elections have occurred since.
16
A quo warranto proceeding is
available only to contest the right to office of a current officeholder for the term at issue. See,
e.g., Holmes v. Griffin, 667 So. 2d 1319, 1325 (Miss. 1995) (affirming dismissal of quo warranto
proceeding brought prior to commencement of term of office).
J. The Arguments Raised by Amicus Curiae and not by McDaniel are Not Properly
Before the Court.
Conservative Action Fund has been granted leave to file an amicus brief. That brief,
however, disregards Mississippi law, pays no heed to Mississippi procedure, and cites federal
authority which has no bearing here.
The issues that the amicus seeks to raise were not made in the trial court, nor were they
asserted by McDaniel in this Court. This Court has said that it would not be justified in
entertaining amicus curiae briefs except to the extent that they are confined to issues presented in
the pleadings and developed upon the trial of the case in the trial court. See Burnside v.
Burnside, 86 So. 2d 333, 334 (1956). And the Court has been reluctant to allow even parties to
raise new issues when those issues are constitutional issues. Cockrell v. Pearl River Valley
Water Supply District, 865 So. 2d 357, 360 (Miss. 2004).
__________________
16
The election referenced in Barbour v. Gunn occurred in 2003. Representative Philip Gunn was
reelected in 2007 and 2011. See Mississippi House of Representatives website:
http://billstatus.ls.state.ms.us/members/house/Gunn.xml (last accessed September 20, 2014); see also2007
Statewide Election Results posted by Secretary of State
http://www.sos.state.ms.us/elections/2007/Statewide%20Elections.asp; and 2011 results
http://www.sos.ms.gov/Elections-Voting/Pages/Results-2011.aspx (last accessed September 20, 2014).
47
These procedural rules have special force here. As the appellant, McDaniel had the
burden to address all issues in his principal brief so that Cochran would have a fair chance to
respond. If the amicus is allowed to interject new issues not mentioned by McDaniel, then
Cochran will not have any chance to respond in writing to whatever it is that McDaniel might
choose to say about them.
For this reason alone, this Court should not consider them.
K. The Elections Clause is Consistent with Kellumv. J ohnson.
The Elections Clause provides that [t]he times, places and manner of holding
elections for Senators and Representatives, shall be prescribed in each state by the
legislature thereof. U.S. CONST., art. I, 4, cl. 1. Kellum interpreted the 1908 Act as
codified, found that it should be construed as a whole, and adopted a construction of it
which avoided unaccountable capriciousness. 115 So. 2d at 149. There is nothing in
the Elections Clause or anywhere else in the federal constitution that prohibits this Court
from giving the acts of the legislature a rational interpretation that avoids capriciousness
and absurdity.
The principal case that McDaniel relies upon, Bush v. Gore, 531 U.S. 98 (2000),
is not an Elections Clause case and has never been cited in a majority opinion of the U.S.
Supreme Court. It does not address a specific state statute like the one here that has been
on the books for more than 100 years, has been authoritatively interpreted by the state
Supreme Court, and has been repeatedly reenacted without material change. And of
course the Mississippi statute which gives this Court the authority to hear this appeal,
23-15-933, was passed by the legislature and is legislative authorization to exercise the
judicial power with respect to its enactments. Nor is the amicus cause advanced by
Smith v. Clark, 189 F. Supp. 2d 548 (S.D. Miss. 2002) whose holding as to the Elections
48
Clause was expressly vacated by the U.S. Supreme Court. Branch v. Smith, 538 U.S.
254, 265-266 (2003) (Elections Clause holding is not to be regarded as supporting the
injunction we have affirmed on the principal ground, or as binding upon state and federal
officials).
17
Finally, another non-Elections Clause case, State ex rel Holmes v. Griffin, 667
So.2d 1319 (Miss. 1995), is distinguishable from Kellum in a way that illustrates
Kellums merit. In Griffin, it made sense to think that the authors of the 1890
Constitution intended to leave out the words immediately proceeding before a five year
residency requirement for 26-year-old trial judges, 154, even though they included it for
30-year-old Supreme Court judges, 150. A 26 year-old might have grown up in
Mississippi but have attended law school elsewhere. On the other hand, there is no
reason to believe that the legislature intended to allow an election challenger an infinite
amount of time to make his challenge, but require judges to rule promptly or else be
guilty of a high misdemeanor. And, of course, the separate sections of the constitution
at issue in Griffin were not the sole constituents of a single Act, nor were there any stare
decisis or reenactment arguments to be made there.
L. The Court Cannot Adjudicate the Present Case on the Merits.
Having stressed an alleged strict construction of one Mississippi law, the amicus then
proceeds to ignore other applicable laws and urge this Court to try the election contest itself.
This Court only has such jurisdiction as belongs to a court of appeals. MISS. CONST. OF 1890
__________________
17
Further, the Elections Clause was also not at issue in the Eleventh Circuits decision in Roe v. Alabama
(Roe III). See Roe v. Alabama, 43 F.3d 574 (11th Cir. 1995) (Roe I), remanded sub nom. Roe v. Alabama
by & Through Evans, 52 F.3d 300 (11th Cir. 1995) (Roe II), affd sub nom. Roe v. Alabama, 68 F.3d 404
(11th Cir. 1995) (per curiam) (Roe III). In Roe III, the refusal of the federal appeals court to ultimately
follow the state courts interpretation of the statute had little, if anything, to do with the supposed plain
meaning of the statute. See Roe, 68 F.3d at 409, n.8; see also Roe v. Mobile County Appointment Bd., 676
So. 2d 1206 (Ala. 1995).
49
art 6. 146. Its rule, MISS. R. APP. P. 14, speaks of the power to try issues arising out of
appeals and that does not mean act as a court of the first instance. And the legislature has
provided for election contest trials in the circuit court, not in the Supreme Court. Miss. Code
23-15-927.
The amicus cites to Yazoo & Miss. Valley R.R. Co. v. Adams, 32 So. 937, 943 (Miss.
1902) as precedent that gives this Court authority to hear the current case on the merits.
However, in Yazoo & Miss. Valley R.R. Co., the cause before the trial court was heard upon
"bills, answer, exhibits, proofs, pleadings, and record. Id. at 943. Therefore, [t]he whole case
was submitted for hearing, and was therefore subject to be considered. Id.
The present matter before the Court could not be more different. The record contains no
admissible evidence on the merits of the issueeither from McDaniel or Cochran.
M. There Is No State or Federal Authority to Support a Delay of the November General
Election.
In its last contention, the amicus overlooks another Mississippi statute and urges this
Court to delay the November general election for U.S. Senator. That is not the remedy
prescribed by Mississippi law for a primary election challenge filed at leisure even if it has been
litigated in haste. The applicable statute, Miss. Code 23-15-937, first instructs the judiciary to
be prompt. It says that if possible with due diligence to do so the matter should be concluded
before the time to print ballots and:
When any judge lawfully designated to hear a contest or complaint shall
not promptly and diligently proceed with the hearing and final
determination of the contest or complaint, he shall be guilty of a high
misdemeanor unless excused by actual illness, or by an equivalent excuse.
The statute then says that if the contest is not resolved by the time that the official ballots are
required to be printed which is the case here the cause shall nevertheless proceed to final
50
judgment and if the judgment is in favor of the contestant, the election of the contestee shall
thereby be vacated and a special election called.
By overlooking this statute and urging an extraordinary remedy of delaying the election,
the amicus demonstrates the extraordinary folly of overruling Kellum and holding that there is no
time period that governs challenges to primary elections in Congressional races.
Nor does federal law require a stay of the election. The federal law the amicus cites for
support, 2 U.S.C. 8(a), allows for the states to prescribe laws to fill a vacancy . . . caused by a
failure to elect at the time prescribed by law . . . . There will be no failure to elect here. The
election will go forward and, if a special election should become necessary, the governor will
call one pursuant to 15-23-937. In fact, the federal law does not permit a state to purposefully
circumvent holding an election. Public Citizen Inc. v. Miller, 992 F.2d 1548, 1993 U.S. App.
LEXIS 13641, at *29 (11th Cir. 1993).
CONCLUSION
For all the reasons stated above, Appellee Thad Cochran respectfully requests that the
Special Circuit Courts judgment in Cochrans favor be affirmed, and Appellants lawsuit be
dismissed, with prejudice.
This the 24
th
day of September, 2014.
Respectfully submitted,
THAD COCHRAN
By: /s/ Phil B. Abernethy
Phil B. Abernethy, (MB #1023)
Mark W. Garriga, (MB #4762)
Lem Montgomery III (MB #100686)
LeAnn W. Nealey (MB #8497)
HIS ATTORNEYS
51
OF COUNSEL:
BUTLER SNOW LLP
1020 Highland Colony Parkway, Suite 1400 (39157)
Post Office Box 6010
Ridgeland, Mississippi 39158-6010
Tel: 601-948-5711
Fax: 601-985-4500
52
IN THE SUPREME COURT OF MISSISSIPPI
No. 2014-EC-01247-SCT
______________________________________________
CHRIS MCDANIEL
Appellant
vs.
THAD COCHRAN
Appellee
On Appeal from the Circuit Court of Jones County, Mississippi,
Second Judicial District
Honorable Hollis McGehee - Special Circuit Court Judge in Cause No. 2014-76-CV08
______________________________________________________________________________
APPENDIX
______________________________________________________________________________
1. 2014 Elections Calendar APP 1
2. Respondents Answer and Affirmative Defense;
Order Denying Respondents Motion to Strike;
Respondents Motion to Strike Petitioners Sept. 10, 2014
Notice of Filing; and
Petitioners Response APP 2
3. 1908 Laws Miss. Ch. 136 APP 3
4. Laws of 1970, Chapter 506, 34 APP 4
5. Laws of 1979, Chapter 452, 40-42 APP 5
6. Laws of 1982, Chapter 477, 7-9 APP 6
7. Comparison of Key Statutes APP 7
53
Certificate of Service
I, Phil B. Abernethy, one of the attorneys for Thad Cochran, hereby certify that I
electronically filed the foregoing Appellees Brief using the MEC system which sent notification
of such filing to the following:
Mitchell H. Tyner, Sr.
mtyner@tynerlawfirm.com
Tyner Law Firm, P.A.
5750 1-55 North
Jackson, MS 39211
Steve C. Thornton
mail@lawlives.com
P.O. Box 16465
Jackson, MS 39236
ATTORNEYS FOR APPELLANT CHRIS MCDANIEL
SO CERTIFIED this the 24
th
day of September, 2014.
/s/ Phil B. Abernethy
Phil B. Abernethy
OF COUNSEL:
Butler Snow LLP
1020 Highland Colony Parkway, Suite 1400
P. O. Box 6010
Ridgeland, MS 39158-6010
Tel: (601) 948-5711
Fax: (601) 985-4500
ButlerSnow22570595