thad cochran mssc brief in chris mcdaniel v. thad cochran

8/11/2019 Thad Cochran MSSC Brief in Chris McDaniel v. Thad Cochran

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BRIEF OF APPELLEE

THAD COCHRAN

-Filed Document Sep 24 2014 21:19:47 2014-EC-01247-SCT Pages: 62


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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 39158Tel: 601-985-4581

Fax: 601-985-4500

ATTORNEYS FOR APPELLEE

THAD COCHRAN


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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.The manifest in tent of the 1908 Act was to impose a 20-day fil ing peri od for allprimary election contests. ......................................................................................... 10

2.Kell um i nterpr eted these sections in the 1942 Code as requir ing that all primary

election chall enges be fi led with in 20 days. ............................................................. 12

3.Kellum appli es today. ................................................................................................... 15

B. Kellums 20-Day Deadline to File a State-Wide Election Challenge wasEngrafted upon Miss. Code 3144, now Miss. Code 23-15-923. ............................ 16

1.A j udicial decision i nterpr etin g a statute becomes part of th at statute where

it i s re-enacted by the L egislatur e without mater ial change................................... 16

2. A judicial decision also becomes par t of the statute where the statute is repealed

and then recodified. ................................................................................................. 17

3.Th e laws of 1970, 1979 and 1982 attempting to revamp M ississippi s election

laws did not go in to eff ect........................................................................................ 18

C. The 1942 Code Election Statutes, Including Sections 3143 and 3144 In

Particular, Were Carried Forward Without Material Changes............................... 21

1.The legislative hi story of the M ississippi El ection Code............................................ 21

2.Th er e wer e no mater ial changes to the relevant curr ent election contest statutes.... 23

D. Because There Were no Material Changes to the Election Statutes,Kellum s

20-day Deadline to File a State-Wide Election Challenge, as Engrafted onMiss. Code 23-15-923, Applies Today. ..................................................................... 25

E. The Doctrine ofStare Decisisalso Shows thatKellum s20-day Deadline to


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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. The immater ial changes to the statutory language..................................................... 33

2. M cDaniel s arguments regarding the time to review ball ot boxes does not

foll ow the statutory scheme or ju dicial pr ecedent. ................................................. 34

H. Barbour v. GunnDid Not OverruleKell umBecause the 20-Day Deadline For

Filing a State-Wide Election Challenge was not Addressed in that Case. ............... 39

1.Th e Barbour v. Gunn decision. ................................................................................... 40

2.The Court s silence in Barbour v Gunn does not overr ule Kellum. .......................... 41

I. The Courts Application ofKellumwould not OverruleBarbour 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 withK ell um v. Johnson. ...................................... 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


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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, 32Cockrell 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 (5th

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)........................................................................... 32Marlow, 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


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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......................................................................................................... passimMiss. 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......................................................................................................................... 3MISS. R. APP. P. 14........................................................................................................................ 49

Other Authorities

20 Am Jur 2d Courts 134........................................................................................................... 42

Blacks Law Dictionary, 1173 (8th

ed. 2004)................................................................................ 26


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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


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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

BUTLERSNOWLLP, Counsel for Appellee Thad Cochran

6. Thomas A. McKnight, Jr., WALLACE, JORDAN, RATLIFF & BRANDT, LLC, Counsefor Amicus Curiae Conservative Action Fund

So certified this the 24th

day of September, 2014.

/s/ Phil B. AbernethyPhil B. Abernethy

ONE OF THE ATTORNEYS FOR APPELLEETHAD COCHRAN


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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 vJohnson, 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

Kellumdecision, or iii) that this court overruled KelluminBarbour v. Gunn, 890 So. 2d843 (Miss. 2004), a case in which the 20-day filing deadline was not raised and Kellum

was never cited.


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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 21st

, 2014).

On August 4, 2014, 41 days after the election, McDaniel initiated a Complaint o

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 alsoR.E. 3; R. 4 (Pet. at 5).
http://www.sos.ms.gov/Elections-Voting/Documents/2014ElectionsCalendar.pdfhttp://www.sos.ms.gov/Elections-Voting/Documents/2014ElectionsCalendar.pdf


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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 Judicia

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.

UnderKellum 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 bySeptember 12, 2014. After that occurred, it was necessary for Respondent to file a Motion to StrikePetitioners 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 tosupplement or designate items to be added to the appeal record without causing piecemeasupplementation. To avoid that irritation to the Circuit Clerk, Senator Cochran also waited to designatehis Answer and Affirmative Defenses until his Motion to Strike was resolved. Accordingly, attached tothis brief as ADD 2 are filed copies of Respondents Answer and Affirmative Defenses; RespondentsMotion 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 motionto supplement the record with certified copies of these documents pursuant to Miss. R. App. P. 10(e) will

be filed tomorrow.


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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, ofBarbour v. Gunn

890 So. 2d 843 (Miss. 2004). The question was raised becauseBarbour v Gunn was decided on

the merits. TheKellum20-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 regardingBarbour v Gunn on that same day. SeeR.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.


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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. I

was what's known as a condition precedent. R. 475 (Tr. 4:20-23).

Having addressedKellum, 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 no

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 Kellumwas still good law. R. 476 (Tr. 6:25 7:2).

The Special Circuit Court Judge then addressed his final concern, the effect ofBarbour v

Gunnon 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). TheBarbourCourt did address jurisdiction, he


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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 inBarbour 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 inBarbour 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 hiscomplaint 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 thatrequirement, 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 thatKellum v. Johnsonis still good law, andthat 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


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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 inKellumcould 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


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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


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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 inKellum.

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, -- butnot 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 Kellumor 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


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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. The mani fest in tent of the 1908 Act was to impose a 20-day fil in g peri od for al

primary election contests.

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 genera

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.

SECTION1. 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 nomineeof 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 iscontested; 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 shallbe 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.


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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 andreturn 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 itspassage.

Approved March 21, 1908

SeeADD 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


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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. Kellum i nter preted these sections in th e 1942 Code as r equir in g that all pr imar y

election chall enges be fi led with in 20 days.

This single 1908 Act was codified as two statutes: Sections 3143 and 3144 of the

Mississippi Code of 1942. InKellum, 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 Kellumthat 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 Circui

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.


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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: I

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


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harmony with the whole act:

The different parts of a statute reflect light upon each other, and statutoryprovisions 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 theinterpretation 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 electioncontests, 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 al

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 wasinvolved, and yet fix no time limit whatever for that purpose in

regard to all other offices. . . . The two sections are i n pari

materia, and all contests therefore must be begun within twenty

days after th e pri mary. To hold otherwi se would be senseless.

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 distric

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


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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 Kellumwith approval for its statutory construction analysis); see also

Dawson v. Townsend & Sons, Inc., 735 So. 2d 1131, 1140 (Miss. Ct. App. 1999).

3. Kellum appli es today.

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. SeeR.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 tha

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 thenominee of the party to any county or county district office, or as

the nominee of a legislative district composed of one (1) county orless, may,withi n twenty (20) days after the pri mary election, file a

petition with the secretary, or any member of the county executivecommittee 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.


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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, noticeof 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 voteof 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 contestthe 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 StateExecutive Committee, by petition, reciting the grounds upon which the election is

contested. . . . and in like manner as in the county office, 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 memberspresent 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 inKellum 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 j udicial decision i nterpr etin g a statute becomes par t of that statute wher e it i s

re-enacted by the L egislatur e without mater ial change.

McDaniel and Cochran agree that the re-enactment of legislation without materia

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 Seen. 1.


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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 judicia

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 j udi cial decision also becomes part of th e statute where the statute is repealed

and then recodified.

McDaniel, however, contends throughout his brief that the repeal of the prior 1942

Code election statutes in 1986 somehow strippedKellumof 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 theLegislature amounts to incorporation of our previous interpretation into the reenacted or

amended statute. The Legislature is, of course, free to preclude our incorrectinterpretation by specific provision, failing which, we must conclude that the legislative

silence amounts to acquiescence. Stated another way, the incorrect interpretationbecomes 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).


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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 aresubstantially 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 bothwhere 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 r evamp M ississippi s election

laws did not go in to eff ect.

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,


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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 Bil

363, Laws of 1970, is declared unconstitutional by a court of competent jurisdictionor is rendered unenforceable for any reason prior to January 1, 1971, then the Governorof 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 19656

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, asamended 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 andextended, in seeking to effectuate this act.

Section 42. This act shall take effect and be in force from andafter 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 forceshall 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.**


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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 tosubmit 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. SeeAppellants 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


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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 Mississipp

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. The legislative hi story of the M ississippi El ection Code.

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, e

seq., of the Code of 1942. Kellumat 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. Lega

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


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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., citingJones 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 495were 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 noobjections to the changes involved in chapter 495,Laws of 1986, thereby implementing the effective dateof January 1, 1987, of the Mississippi Election Code.).


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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

SeeR. 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 no

limited to the election challenge statutes, but also pertains to every statute cited in Appellants

Brief.

2. There were no mater ial changes to the relevant curr ent election contest 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. Tha

same 20-day deadline was carried forward in 1986 and exists today in 23-15- 921. Section

3144 the statute analyzed inKellum 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.SeeR. 466. The proposed change also added to 3144 now Miss. Code 23-15-923 the phrase andin 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.


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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 KellumCourt:

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 Section3228 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 theresults to the state executive committee within 36 hours of declaration. This sectionincludes the same time periods carried forward from 3142 of the Code of 1942, and

were, thus, available for consideration by the KellumCourt.

3. Section 23-15-599, referenced on pages 12, 18, 28, and 29 of Appellants Brief, sets forththe 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 forwardfrom 3146 of the Code of 1942 and was before theKellumCourt, 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 the12-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 thesame 12-day period for inspection after canvassing and examination. This, too, wasbefore the Court inKellum.

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. Thisstatute 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 wasamended in 2012 to add a 10-day time limitation which superseded the prior requirement

to merely file forthwith.


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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, Kellums20-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). InMcDaniel, 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 ofPittman 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. DescribingPittman, Pearson and two other decisions following or acknowledging their


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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 tha

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 inMcDaniel v. Beanetranslates directly to McDaniel v. Cochran. The pertinen

statutes cited throughout Appellants Brief are all substantially similar if not virtually identica

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 inMcDaniel 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 ofstare decisis likewise applies and supports application of theKellumrule

here. Stare decisis is a doctrine of precedent, which requires courts to follow earlier judicia

decisions when the same point arises again in litigation. Caves v. Yarbrough, 991 So. 2d 142

150 (Miss. 2008) (quotingBlacks Law Dictionary, 1173 (8th

ed. 2004)). Here McDaniel claims


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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 ofstare decisisapplies 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-litigateKellum, 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). TheKellumCourt specifically noted tha


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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. SeeMiss. 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 fairnessand 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 sucha 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 thisrepeatedly. For example, the party executive committee loses the right to decide a constitutionally-


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Accordingly, this Court in Kellumcorrectly 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). SeeAppellants Brief at pp. 20-22. He cites this case for the proposition tha

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 thepar

materiadoctrine (used by the KellumCourt) 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 (citingMississippi 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 musrule 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 mustvacate his office, an extreme remedy. Id. In the light of these drastic deadlines and remedies it makesno sense to rule that the challenger can take his or her sweet time in bringing the initial challenge.


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election, a challengers review period could potentially extend beyond the 20-day filing deadline.

SeeAppellants Br. at 29, 32-34. Though this is not true (seeSection 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 theKellum 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 Natchezhas no

application here. The issue inCity of Natchezwas 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 Natchezis inapposite to the present case. InKellum, 3144 (now 23-15-923)

expressly referredto 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. InCity of Natchezthere was no reference to a sister statute from the same Act containing a


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clear time requirement, and, more importantly, no overarching policy demanding a time

requirement. SeeMiss. 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. Lopezconcerned 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 circui

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 ballo

examination in primary election challenges. In so doing, the Court found that the primary

statute, 3169, was in pari materiawith 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 clos