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O'Neil v. Hosemann

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

November 27, 2018




         This civil action is before the Court on the Motion for Temporary Restraining Order [3] 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.

         I. Background

         Plaintiffs 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.

         Under 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. § 23-15-637.

         Plaintiffs 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 mailings.

         The 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.

         Although 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.

         II. Standing

         As 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. [1] 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.[1]

         III. Standards

         A TRO 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 marks omitted).

         IV. Analysis

         There 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 ...

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