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Keyes v. Gunn

United States District Court, S.D. Mississippi, Northern Division

January 27, 2017




         “The deference usually given to the judgment of legislators does not extend to decisions concerning which resident citizens may participate in the election of legislators and other public officials. Those decisions must be carefully scrutinized by the Court to determine whether each resident citizen has, as far as possible, an equal voice in the selections.” Kramer v. Union Free Sch. Dist. No. 15, 395 U.S. 621, 627 (1969).

         Mississippians select members of the State House of Representatives (“the House”) through popular election. The people consented to this form of governance in the Constitution of 1890, trusting that their ballots would be treated fairly.

         In this case, five voters claim the House breached that trust by intentionally discarding their ballots to change the outcome of an election. They allege a violation of rights secured by the Equal Protection Clause of the Fourteenth Amendment. Defendants deny all allegations of impropriety. They insist their actions are justified by state law, and that this Court has no jurisdiction to adjudicate plaintiffs' claims.

         This case presents the question: if state legislators intentionally discard ballots to swing an election, may the disenfranchised voters bring suit in federal court to enforce the guarantee of equal protection? Yes, they can.

         I. Factual and Procedural History

         On November 3, 2015, Mississippians voted in state-wide general elections. Among the positions on the ballot was the legislative seat held by incumbent Blaine Eaton. Eaton was the State Representative for District 79, which is comprised of Smith County as well as a portion of Jasper County.

         The race for District 79 could not have been closer. As required by state law, the Smith County election commissioners certified the total number of votes cast county-wide, as well as the number of votes cast in each precinct. See Miss. Code Ann. § 23-15-603. Those certifications were transmitted to the Secretary of State, who tabulated the results and submitted them to each branch of the Legislature. See Id. § 23-15-603(3) (“Certified county vote totals shall represent the final results of the election.”). The District 79 race resulted in a tie between Eaton and challenger Mark Tullos; each received 4, 589 votes. Associated Press, GOP-Majority Panel to Hear Challenge Over Mississippi House Seat, Jackson Free Press, Dec. 1, 2015.

         Approximately one week after the votes were certified, Eaton and Tullos drew lots to break the tie, in accordance with state law. See Miss. Code Ann. § 23-15-605. Under the watchful eyes of the Secretary of State, the Governor, legislators, party officials, members of the media, and general onlookers, Eaton won the election by drawing the long straw. Richard Fausset, Democrat Wins Mississippi House Race After Drawing Straw, N.Y. Times, Nov. 20, 2015. When Mississippi's 2016 legislative session convened, Eaton was sworn in and seated by the House as the Representative of District 79. His service would not last long.

         The tie-breaking ceremony garnered a great deal of attention because much more than a single legislative seat was at stake. As one reporter explained:

With his victory, Eaton blocks the GOP from having a supermajority in the House, a three-fifths margin that would have allowed Republicans, in theory, to make multimillion-dollar decisions about taxes without seeking help from Democrats . . . . A Tullos victory would have given Republicans 74 seats in the 122-member House. They already have a supermajority in the 52-member state Senate, and Gov. Phil Bryant is Republican. Democrats in the current term have blocked Republicans' efforts to pass hundreds of millions of dollars' worth of tax cuts.

         Emily Wagster Pettus, Mississippi Republicans Literally Drew Straws to Break an Election Tie, Business Insider, Nov. 21, 2015.

         Tullos filed a petition with the House contesting the election.[1] Arielle Dreher, Election Disputes: No Bibles, and Lots of Swearing, Jackson Free Press, Jan. 20, 2016. Republican Speaker of the House Philip Gunn appointed Republican Mark Baker, Republican Richard Bennett, Republican Charles Jim Beckett, Republican Bill Denny, and Democrat Linda Coleman to a special committee, charging them to investigate and consider the election challenge. Associated Press, GOP-Majority Panel to Hear Challenge Over Mississippi House Seat, Jackson Free Press, Dec. 1, 2015.

         The committee voted along party lines to discard five of the nine affidavit ballots counted by Smith County election commissioners and the Secretary of State.[2] Coleman criticized the committee's recommendation as a “trumped up report based upon a trumped-up law.” Jimmie Gates, House Votes for Republican Tullos, Unseats Eaton, Clarion-Ledger, Jan. 21, 2016. The House then adopted the special committee's resolution, nullified the results of the tie-breaker, declared Tullos the winner of the election, and manufactured a Republican supermajority. Id.

         On March 30, 2016, Billie Faye Keyes, Joshua Allen, Courtney Rena Fortune, Karli Ford Matthews, and Shelton S. Matthews (“plaintiffs”), residents of Smith County, filed their complaint with this Court. They allege that their affidavit ballots-all cast for Eaton-were counted by the Smith County election commissioners and the Secretary of State, then jettisoned by the special committee of the House in violation of the Equal Protection Clause.

         Plaintiffs' claims are predicated on well-established principles. The Supreme Court has underscored repeatedly the importance of open, honest elections and equal opportunity for civic participation. More than 100 years ago, while considering an election to Congress, the Court regarded it as “unquestionable that the right to have one's vote counted is as open to protection . . . as the right to put a ballot in a box.” United States v. Mosley, 238 U.S. 383, 386 (1915). The Court later extended that right to elections for state officials. “[W]henever a state or local government decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election.” Hadley v. Junior College Dist. of Metro. Kansas City, Mo., 397 U.S. 50, 56 (1970); see also Dunn v. Blumstein, 405 U.S. 330, 336 (1972) (collecting cases). The protective penumbra cast over state elections by the Equal Protection Clause has not diminished in the passing decades. “Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another.” Bush v. Gore, 531 U.S. 98, 104-05 (2000) (citation omitted).

         Nevertheless, defendants argue that the doors to the federal courthouse are closed. First, they claim this Court lacks authority to hear this case. Then they invoke Eleventh Amendment immunity and legislative immunity. Finally, they argue that the special committee of the House was entitled to make individualized factual determinations about the sufficiency of plaintiffs' ballots.

         II. Threshold Questions

         “[F]ederal courts are courts of limited jurisdiction, having only the authority endowed by the Constitution and that conferred by Congress.” Halmekangas v. State Farm Fire and Cas. Co., 603 F.3d 290, 292 (5th Cir. 2010) (quotation marks and citation omitted). “Lack of subject matter jurisdiction may be found in any one of three instances: (1) the complaint alone; (2) the complaint supplemented by undisputed facts evidenced in the record; or (3) the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001) (citation omitted). “Ultimately, a motion to dismiss for lack of subject matter ...

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