United States District Court, S.D. Mississippi, Northern Division
P. JORDAN III CHIEF UNITED STATES DISTRICT JUDGE.
civil action is before the Court on the Motion for Temporary
Restraining Order  filed yesterday, November 26, 2018, by
Plaintiffs Barabara O'Neil, William Sewell, Julianne
Huber, and the Mississippi State Conference of the N.A.A.C.P.
For the reasons that follow, the motion is denied.
say Mississippi's absentee-ballot procedures deny the
franchise to out-of-state and other voters wishing to vote
absentee in the United States Senate runoff election between
Cindy Hyde-Smith and Mike Espy. In general terms, they
contend that the relevant code provisions do not provide
adequate time to obtain a ballot after the general election
is certified and then return it by mail before the statutory
deadline for counting those votes in the runoff election.
Mississippi Code section 23-15-603, election results must be
certified “within ten (10) days after the general
election.” Eligible voters wishing to vote by mail may
then request- either orally or in writing-an application to
vote absentee. Id. § 23-15-627. Within 24 hours
of receiving that request, the registrar (circuit clerk) for
the voter's resident county will take one of two actions.
First, the registrar can mail the application to the voter.
Id. In that case, the voter must complete the
application; mail it back; wait for the registrar to then
mail the ballot; complete the ballot; and then mail it back
to the county. Id. § 23-15-631(1)(c). Second,
the registrar can mail the application and ballot together,
in which case the voter must complete and return them in
separate envelopes. Id. § 23-15-631(1)(d). In
either event, the ballot must be “received” by
5:00 p.m. the day before the election. Id. §
correctly observe that this timeline is tight-if not
impossible-for some voters. This is especially true where the
registrar separately mails the application and ballot. For
example, certification occurred Friday, November 16, 2018,
and assuming a voter could request the application the very
next day (Saturday), it likely would not have been mailed
until Monday, November 19. Allowing two days for delivery, it
would arrive Wednesday, November 21-the day before
Thanksgiving. Not counting Thanksgiving, that would leave
just four days to complete a process that includes three more
process is obviously less burdensome for those voters in
counties that send the ballots and the applications together.
Indeed that happened with two of the three named plaintiffs
in this case, William Sewell and Julianne Huber. As a result,
Sewell and Huber actually voted within the applicable
deadline. They therefore lack standing in this case and will
be dismissed at the appropriate time.
the Complaint generally challenges the entire absentee-voting
regimen on due-process and equal-protection grounds,
Plaintiffs limited their arguments as to the requested
temporary restraining order (“TRO”). Instead of
seeking an order generally declaring the statutes
unconstitutional, they seek an order that would extend the
November 26 deadline under section 23-15-637 and count all
votes postmarked by 5:00 p.m. on November 27,
2018-i.e., election day. They also desire an order
instructing Defendants to provide notice to out-of-state
voters that the deadline has been extended so they can still
vote if they mail their ballots before 5:00 p.m. today.
discussed below, binding precedent precludes the requested
relief. For that reason- and given the incredibly short
fuse-the Court will not dwell on standing. Nevertheless, the
Court questions whether Plaintiffs named the correct
defendants. In general terms, Plaintiffs sued
Mississippi's Governor, Attorney General, Secretary of
State, Assistant Secretary of State, and the election
commissioners of Harrison and Hinds Counties. See
Compl.  at 1. But under Mississippi's election
statues, the registrars, i.e., circuit clerks, for each
county are given the relevant tasks. This is a tricky issue
under Ex Parte Young, yet it was superficially
addressed in Plaintiffs' memorandum. So while they might
be correct, it is not yet apparent.
is an “extraordinary remedy.” Lakedreams v.
Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991) (citation
omitted). The four elements for such relief are well known:
(1) a substantial likelihood of success on the merits; (2) a
substantial threat of irreparable injury if the injunction is
not issued, (3) that the threatened injury if the injunction
is denied outweighs any harm that will result if the
injunction is granted, and (4) that the grant of an
injunction will not disserve the public interest. Janvey
v. Alguire, 647 F.3d 585, 595 (5th Cir. 2011). To
justify entry of a TRO, Plaintiffs must “clearly
carr[y] the burden of persuasion on all four elements.”
PCI Transp., Inc. v. Fort Worth & W. R.R. Co.,
418 F.3d 535, 545 (5th Cir. 2005) (citation and quotation
are two related problems with Plaintiffs' requested
relief-it is too late and disturbs the status quo. As stated
above, Plaintiffs seek an order that would change the
absentee-ballot deadline. Under section 23-15-637, the
ballots are counted if received by 5:00 p.m.,
November 26, 2018, i.e. yesterday. Plaintiffs say all ballots
postmarked by today at 5:00 p.m. should be counted
and that Defendants ...