United States District Court, S.D. Mississippi, Northern Division
BILLIE FAYE KEYES; JOSHUA ALLEN; COURTNEY RENA FORTUNE; KARLI FORD MATTHEWS; SHELTON S. MATTHEWS PLAINTIFFS
PHILIP GUNN; MARK BAKER; RICHARD BENNETT; CHARLES JIM BECKETT; BILL DENNY; THE MISSISSIPPI HOUSE OF REPRESENTATIVES DEFENDANTS
MEMORANDUM OPINION AND ORDER
CARLTON W. REEVES, UNITED STATES DISTRICT JUDGE
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).
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
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.
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.
Factual and Procedural History
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.
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.
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
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.
Wagster Pettus, Mississippi Republicans Literally Drew
Straws to Break an Election Tie, Business Insider, Nov.
filed a petition with the House contesting the
election. 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,
committee voted along party lines to discard five of the nine
affidavit ballots counted by Smith County election
commissioners and the Secretary of State. 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.
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.
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).
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
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 ...