GOVERNOR HAEY BAROUR AN

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1 IN THE SUPREME COURT OF MISSISSIPPI NO M SCT GOVERNOR HAEY BAROUR AN SECRETARY DELBERT HOSEMA PETITIONERS/APPELLANTS V. TRUDY BERGER, IN HER OFFICIAL CAPACITY AS A MEMBER OF THE BOAR OF ELECTION COMMSSIONERS OF PIK COUNTY AND AS A QUALIFIED ELECTOR RESPONDENT/APPELLEE RESPONSE IN OPPOSITION TO PETITION FOR EXTRAORDINARY WRT VACATING WRT OF MAAMUS, REVERSING AN RENDERING DECLARTORY JUGMENT, AN MOTION TO SUSPEND THE RULES, FOR EMERGENCY STAY, AN FOR OTHER RELIEF Pursuant to the order of this Cour, the Respondent! Appellee Trudy Berger files her response in opposition to the petition for extraordinar writ vacating wrt of mandamus, reversing and rendering declaratory judgment, and motion to suspend the rules, for emergency stay, and for other relief, and in support thereof respectfuly shows the following: FACTS AN PROCEDUR mstory On Tuesday, September 10,2008, the Respondent, a dily elected member of the Board of Election Commssioners of Pike County, Mississippi, filed a Complaint in the Circuit Cour of Hinds County in her offcial capacity and as a qualified elector, naming as Defendants Secretar of State Delbert Hoseman and Governor Haley Barbour. Her Complaint was fied withi two hours following Governor Barbour's approval of a sample of the offcial ballot for the November i

2 4, 2008 general election ("sample ballot") prepared by Secretary of State Hoseman, pursuant to Mississippi Code Section (3). The Respondent's Complait alleged that the sample ballot is contrar to the plain language of Mississippi Code Section (2), which requires all candidates for national offce to be grouped together. First, the Respondent cites two unawfl defects in the sample ballot. The Secretar of State listed the special election to fill the vacancy in the offce of the United States Senator at the end of the sample ballot. Second, the sample ballot instrcts county election offcials, in devising ballots for their jurisdictions, to list elections for county election commssioner and county school district trstee before the special election for United States Senator. The Respondent's complaint, consisting of one count only, states that Section (2), enacted by the Mississippi Legislatue as Chapter 592, Section 8 of the 2000 General Laws, expressly requires the general election ballot to list the candjdates according to the level of offce, with candidates for national offce listed first, followed by candidates for statewide offce, and so fort. Accordingly, the Secretar of State's decision to list the special election for United States Senator at the bottom of the sample ballot violates the plain language and statutory purose of Section (2). The ultimate relief sought by the Respondent in her Complaint consists of: (1) a declaratory judgment rendered under Mississippi Rules of Civil Procedure 57 adjudicating her legal argument set forth in count 1 above; (2) a writ of prohibition or mandamus, as the case may be, commanding the Secretary of State (and not.the Governor per se) to devise and implement a sample ballot that has the special election for United States Senator appearng alongside or imediately below the other elections for national offce; and (3) the issuance of a temporar restrainig order and preliminar and permanent injunction enjoing the Secretary of State, and 2

3 the Governor if need be, from using a sample ballot that does not conform to Section (2). Along with the Complaint, the Respondent fied her Motion for Temporar Restrainig Order (TRO) with a certificate from the undersigned counsel describing his contact with the attorney general's offce indicating the Respondent's intent to imediately seek a TRO and injunctive relief following the meeting of the State Board of Election Commssioners where the. sample ballot was approved by the Governor. The Respondent also moved for a preliminar injunction. To the best of the undersigned counsel's knowledge, the Circuit Clerk of Hinds County randomly assigned the case to Circuit Judge Tomie Green, in accordance with Mississippi Code Section The undersigned counsel provided a copy of the filed cour papers and a proposed TRO to the Cour Admstrator for Judge Green. Approxiately 45 minutes later Judge Green entered the TRO, which also set the prelimiar injunction hearing for Thursday, September 11, at 11 :00 a.m. The undersigned counsel never conferred with Judge Green. The undersigned counsel provided the TRO to the Hinds County Sheriffs Offce, one of whose deputies served the TRO on the Governor's legal counsel and on Mr. Hoseman personally. Shortly after 4:00 p.m. that same day the undersigned counsel received the Defendant's Petition for an Extraordinary Writ filed in the Supreme Cour. Around 6:00 p.m., the Supreme Cour's order dissolving the TRO was communcated telephonically and by fax to the undersigned counsel. The pleadings of the Petitioners indicate that imediately afer this Cour's order dissolving the TRO was entered, the Secretar of State's offce immediately began worldng to disseminate the sample ballot to local election offcials. 3

4 The next day, September 11, at 11 :00 a.m., the time noticed for hearing in the TRO, the Plaintiffs Motion for Preliminar Injunction, along with the Defendant's Motion to Dismiss fied imediately beforehand, was heard by Judge Green, who took the matter under advisement. Judge Green's declaratory judgment and order was issued the next day, on Friday morng, granting the relief sought by the Plaintiff. The Petitioners have set fort a multitude of arguments in their petition before this cour. The Respondent will address the substantive issues first, which is that the plain meanng of Section (2) requires the special election for United States Senator to be placed alongside or directly below other elections for national offce. The Respondent wil then address the procedural, jurisdictional, and remedial issues raised by the Petitioners. ARGUMNT A. THE CHALENGED SAMLE BALLOT VIOLATES THE PLAI, UNAMIGUOUS, AND CLEAR MEANING OF STATE ELECTION LAW Ths Cour has repeatedly made clear that its role is to "neither broaden(j nor restrict(j the legislative act." Barbour v. State ex rei. Hood, 974 So. 2d 232,240 (Miss. 2008) (quoting Miss. Dep't oftransp. v. Allred, 928 So. 2d 152, 156 (Miss. 2006)); see also Green v. Cleary Water, Sewer & Fire Dist., 910 So. 2d 1022, 1027 (Miss. 2005) ("cours canot restrict or enlarge the meaning of an unambiguous statute" (quoting Marx v. Broom, 632 So. 2d 1315, 1318 (Miss. 1994)). Thus, "(i)n considerig a statute passed by the Legislatue,... the first question a cour should decide is whether the statute is ambiguous. If it is not ambiguous, the cour should simply apply the statute according to its plain meang and should not use principles of statutory constrction." Allred, 928 So. 2d at 154 (citations omitted); see also Caminetti v. US., 242 U.S. 470 (1917) ("(T)he meang of the statute must, in the first instance, be sought in the language in which the act is framed, and if that is plain,... the sole fuction of the cours is to enforce it 4

5 according to its terms."). "Whether the statute is ambiguous or not, the ultimate goal is to discern and give effect to the legislative intent." Barbour, 974 So. 2d at 240 (quoting Allred, 928 So. 2d at 154). In this case, there is no ambiguity: The plain language of the election code and the Legislatue's expressed statutory intent require that the sample ballot list all candidates in order from national offce to county district offices. Mississippi Code Section (2), which was passed by the Legislatue during its 2000 Regular Session as 2000 General Laws of Mississippi, Chapter 592, Section 8, and applies to elections other than primares, states plaiy that titles for the varous offces shall be listed in the following order: a. Candidates for national offce; b. Candidates for statewide offce; c. Candidates for state district offce; d. Candidates for legislative offce; e. Candidates for countywde offce; f. Candidates for county distrct offce. The order in which the titles for the varous offces are listed within each of the categories listed in this subsection is left to the discretion of the offcer charged with printing the offcial ballot. Id. (emphasis added). Moreover, Chapter 592 expressly states that one purose of the law is "to provide for the order in which the titles of the various offces be listed..." 2000 Miss. Laws Ch. 592 (S.B. 2810). Furhermore, it is generally understood that "may" is discretionar and the word "shall" is a mandatory directive. Temple v. State, 679 So.2d 611,615 (Miss. 1996). Clearly use of the word "shall" in Section (2) mandates that the offices be raned so as to put all national races first. 5

6 Critically, Section (2) governs all elections other than priares and makes no exception for special elections.l Thus, as the circuit cour correctly held, the meang of the law is clear: Ballot order is determined by title of offce, and candidates for national offce must be listed first, followed by candidates for statewide office. The statutory provisions governg special elections do not alter the required ballot order established in Section (2). Mississippi Code Section , which governs "special elections generally" provides that All special election, or elections to fill vacancies, shall in all respects be held, conducted and returned in the same manner as general elections, except that where no candidate receives a majority of the votes cast in such election, then a ruoff election shall be held... In those years when the regular special election day shall occur on the same day as the general election, the names of candidates in any special election and the general election shall be placed on the same ballot, but shall be clearly distinguished as general election candidates or special election candidates. Simlarly, Mississippi Code Section provides: In those years when a special election shall occur on the same day as the general election, the names of candidates in any special election and the general election shall be placed on the same ballot by the commissioners of elections or offcials in charge of the election, but the general election candidates shall be clearly distinguishedfrom the special election candidates. The meang of the above statutes, along with Mississippi Code Section (2), is unambiguous and the legislative intent is clear: All candidates for national offce must be placed at the top of the ballot, followed by all candidates for statewide offce, see id (2); if there is a special election for any of the offces, "the general election candidates shall be clearly distinguished from the special election candidates"--.g., through a banner heading-but the election must otherwse be held "in the same maner as general elections," see id ; i Ballot order for primares is established by Miss. Code An That provision too requires candidates for national offce to be listed fist. 6

7 see also id No provision permts the Secretar of State or the Governor to change the order that candidates appear on the ballot. Petitioners argue that "the process of a special U.S. Senate election is separate and distinct from the regular election process" and therefore the Secretar of State is permitted to ignore the plain language of Section (2). This is incorrect. In fact, the statutory provision on special elections expressly states that "(a)ll special election, or elections to fill vacancies, shall in all respects be held, conducted and returned in the same manner as general elections" except as provided by statute. Id Nowhere does the election code make an exception to the ballot order rie for special elections. Rather, Section (2) plaiy applies to all elections other than primares. Petitioners argument that Section (2) is silent about where special elections are to be placed on the sample ballot is equally unavailing. Section (2) on its face establishes the ballot placement for all candidates for "national offce." Special election candidates for Senate are clearly candidates for national offce withn the ordinar meanng of the words "national office"-and within the meaning of Mississippi law. Miss. Code An ("All words and phrases contained in the statutes are used according to their common and ordinar acceptation and meang; but techncal words and phrases according to their techncal meang."). The plain language of Section (2) encompasses all elections (except primar elections). And, as long as the election is for a national offce, such as United States Senate, the candidates must be listed above all others. Contrar to Petitioners' argument, since 2000, when Section (2) was added to the code, special elections have been grouped on the sample ballot with general elections for offces at the same level. In the 2002 special election for cour of appeals judge, for example, 7

8 candidates for that offce were listed in the Secretar of States' November 2002 general election sample ballot directly after the general election for candidates for cour of appeals judge and before general electiõns for circuit and chancery cour. They were not placed at the bottom of the general election ballot. In 2004 there were no special elections at the national, state or district level and thus ths election provides no authority for the Petitioners' argument that the special Senate race be placed at the very bottom of the November 4, 2008 election ballot. As for the November 2006 ballot, while two unopposed special elections for appeals cour judge were listed below chancery and circuit judge elections, all judicial elections were required to be listed before regular local school board elections. In short, both the statute's language is plain and its intent unambiguous: All candidates for national office must be grouped together, followed by all candidates for statewide offce; special election candidates are not exempted from the ballot order, though they must be clearly distinguished, as though a baner heading. Because the legislative mandate in Sections (2), , and is clear and unambiguous, the Secretar of State's "duty (thereunder) is minsterial and not discretionar"; "it is imposed by law and its performance is not dependent on (hs) judgment." Barbour, 974 So. 2d at 241 (quoting Miss. Dept. of Mental Health v. Hall, 936 So. 2d 917, (Miss. 2006)). B. SUBJECT MATTER JUSDICTION IS PROPER AN THE CIRCUIT COURT'S DECISION WAS NOT ERRONEOUS OR VOID AS A MATTER OF LAW. 1. THE CIRCUIT COURT WAS PROPERLY SITTING AS A COURT OF FIRST INSTANCE. The Petitioners assert that the Circuit Cour of Hids County should have properly been sitting as an appellate cour in this matter under the doctre of 'common law appeal,' and that 8

9 therefore its order in relation to ths matter is void as a matter of law. Although the Petitioners provide ample reason why the Governor is not subject to the requiements of the State Administrative Procedures Law (which are irelevant to this action in any case), they cite no authority either establishing what a 'common law appeal' is nor any case in which the doctre has been used in this State. Aricle 6, Section 156 of the Mississippi Constitution of 1890 states that the circuit cours shall have "such appellate jursdiction as shall be prescribed by law." Miss. Const., ar. 6, 156. Other cours have consistently held that the language 'prescribed by law,' far from conferring' common law' appellate jursdiction on cours, simply means they have appellate jursdiction over any other matters the legislative branch chooses to confer on them. See In re Oklahoma Capitol Improvement Auth., 958 P.2d 759, 763 (Okla. 1998); Howard v. Cook, 83 P.2d 208,210 (Idaho 1938). The only case cited by the Petitioners at all relevant to this issue, Powers v. Johnson, involved the Secretar of State acting in a quasi-judicial capacity in that he was required to hear evidence and decide facts in connection with a proposed initiative. Because of those circumstances, the Supreme Cour determined that he was acting "as an inerior tribunal having quasi judicial powers." Because of that, the Petitioner in Powers was able to take advantage of the certiorar statute that allowed hi to appeal to circuit cour. The certiorar statute stil exists in Mississippi Code Sections and The circumstances here are completely different. In connection with his duties attendant to preparing the sample ballot the Secretary of State was not sitting as a tribunal, but rather was performng a ministerial act, strctly governed by Section His actions therefore canot be said to be limited to an appeal, with 9

10 limited judicial review of his actions, as suggested by the Petitioners. At the same time, it makes no difference because the issues to be prescribed are pure questions of law. However, even if Petitioners established that common law appeal exists and should be applied in certain cases in this State, the Petitioners' arguments regarding its applicabilty to this case are erroneous. The Petitioners assert that the circuit cour was reviewig an executive decision of the Governor and the Secretar of State. This arguent is not supported by the record. The Respondent asked for, and was given, declaratory relief regarding the meang of Section (2) as it applied to the ordering of candidates for national offce on the offcial sample ballot. The Respondent was also given other relief, including injunctive relief. However, the circuit cour was not asked to, nor did it, engage in judicial review of the lawflness of the actions of the Governor or the Secretar of State with regards to the approval or promulgation of the official sample ballot. Accordingly, the circuit cour was properly convened as the cour of first instance in this matter, and therefore its findings are not erroneous or void as a matter of law. 2. THE ORDER OF THE CIRCUIT COURT WAS PROPERLY ISSUED AGAINST THE SECRETARY OF STATE. The Petitioners contend that the order of the circuit cour is effectively a writ of mandamus directed against the Governor and the Secretar of State. Petitioners correctly note that there is a long line of Mississippi case law holding that the Governor is imune from mandamus, and that the writ will not lie against him. Recognzing that ths Cour is unikely to overt such a well-established rule of law, and in the interests of time, the Respondent would merely posit that, should this Cour agree with the circuit cour's reading of Section (2), it is the Petitioners' position that neither this Cour nor any other division or branch of the Governent of the State of Mississippi could compel the Governor to discharge his statutory 10

11 duties in a lawf maner. The Respondent asserts that such a broad interpretation of executive power and privilege is against public policy, and notes that the United States Supreme Cour has consistently failed to -afford even the President of the United States unqualified immunty of this sort. See, e.g., us. v. Nixon, 418 U.S. 683 (1974); Marbury v. Madison, 5 U.S. 137 (1803). However, even if a writ of mandamus will not lie against the Governor, the Petitioners' assertion that the wrt will not lie against the Secretary of State in ths instance is incorrect. In arguing that the writ will not lie against the Secretar of State, or any other third par, when their actions are dependent on the approval of the Governor, Petitioners direct the Cour's attention to Wood v. State, 169 Miss. 790, 142 So. 747 (1932). However, the facts of the instant case can readily be distinguished from those of Wood. In Wood, the wrt issued against the Secretary of State compelled him to perform actions that the Governor was required to approve prior to the Secretar of State's performance of those actions. Id. at 748. Ths Cour concluded that the writ could not properly lie against the Secretary of State in that case because he could not begin to perform the actions mandated in the writ without the Governor's approval. And since the writ could not lie against the Governor, the Secretary of State was effectively immune from the writ for the same policy reasons ariculated for the general failure of the wrt to lie against the Governor. Id. at 796. However, in the instant case, the action effectively requested of the Secretar of State (i.e., to devise and recommend a lawfl offcial sample ballot for promulgation) is antecedent to the approval of the Governor. Nothng in the record indicates that the Governor would fail to approve an offcial ballot devised according to what the circuit cour has found to be the plain meang of Section (2). In fact, this Cour in Wood noted that a presumption exists that an offcial will perform his or her statutory duties when the time for performance arises. Id. 11

12 at 797 (quoting State v. Board of Sup'rs of Coahoma County, 64 Miss. 358, 1 So. 501, 505 (1886)). Therefore, the section of the order of the circuit cour directing the Secretary of State to devise a ballot in accordance with the cour's interpretation of Section (2), including clearly distinguishig the special election with a caption on the ballot, and to recommend that ballot for promulgation to the Governor, is entirely appropriate. For the reasons stated above, the declaratory aspects of the order of the circuit cour are both lawfl and appropriate with respect to the Secretar of State. The cour decided that the meanng of Section (2) is plain on its face, that it requires that the United State Senate race between Roger Wicker and Ronne Musgrove be listed alongside or directly below the other elections for national office, and requires the Secretary of State to devise and recommend a ballot that meets those requiements. The declaratory relief afforded the Respondent is therefore appropriate and was entirely withi the power of the circuit cour to grant. 3. THE CIRCUIT COURT IS NOT ENJOINING THE NOVEMBER 4, 2008 GENERA ELECTON. The Petitioners assert that the circuit cour has impermssibly enjoined the election process, in violation of the Seventeenth Amendment to the United States Constitution and Section of the Mississippi Code. This argument has no merit. The primary case the Petitioners cite in support of ths argument, Gibbs v. McIntosh, 78 Miss. 648,29 So. 465 (1900), dealt with a writ that would have interfered with the election process until afer the statutorily mandated date for the actual election. Id. at (finding that because of a wrt of supersedeas "the provisions of law as to the time of holding the election canot now be complied Wi.th... "). 12

13 However, in the instant case, the circuit cour entered a declaratory judgment stating that the plain meang of Section (2) requires that the special election for United States Senate be placed alõngside or directly below the elections for other national offces on the offcial sample ballot. Among other thigs, the order of the circuit cour instrcted the Secretary of State to devise and recommend an offcial sample ballot in accordance with that finding. As noted above, this Cour has held that there is a presumption that the Governor will approve an offcial sample ballot that is devised in accordance with the law and submitted to hi for approval. The circuit cour has in no way interfered with the ability of the Secretar of State or the individual county elections commssions to prepare for and conduct the election by its statutorily mandated date. The Petitioners' argument can therefore be reduced to an assertion that, because they disagree with the finding of the circuit cour and have decided to exercise their right to petition ths Cour for a review of the circuit cour's decision, the circuit cour has in some way enjoined the election. For the foregoing reasons, this assertion is clearly erroneous, and nothing in the order of the circuit cour or the circumstances surounding this action prevents this matter from being resolved in a timely maner and the election from taking place as scheduled. C. THE PLAINTIFF HAS STANDING TO SUE It is well settled that Mississippi's standing requirements are quite liberal. State v. Quitman County, 807 So. 2d 401, 405 (Miss. 2001). This cour has been more permssive in granting standing to paries who seek review of governental actions. Id. See also Van Slyke v. Bd of Trustees, 613 So. 2d 872 (Miss. 1993). Elected officials and divisions of governent have repeatedly been allowed to maintain actions to obtain declaratory and injunctive relief against ilegal actions by state offcials. Id. The Plaintiff has pleaded in her complaint the reasons for 13

14 entitlement to bring suit concerng the November 4, 2008 general election ballot. As an election commssioner she is responsible in numerous respects for the planng and implementation of the election in her county, including the appointment and trainig of poll managers, ruling on provisional ballots, and canvassing and certifying the retus. Also, as the Petitioners have brought to the cour's attention, Attorney General Hood has stated in an offcial opinion that county election commssioners should ignore the sample ballot because it is unawfl. The Respondent reasonably believes that if she certifies an election containg an unawfl ordering of the ballot she may be subject to suit. Moreover, as a qualified elector she is entitled to challenge a sample ballot that is unawful and has the effect of creating confusion at the pollng place. Thus, she has asserted a colorable interest in the subject matter of the litigation and will experience an adverse effect from the conduct of the Petitioners. Clearly, the Respondent has standing to sue. D. THERE HAS BEEN NO CHAGE IN VOTING PROCEDURS REQUIRING PRECLEARCE UNER THE VOTING RIGHTS ACT The circuit cour applied the plain language and clear statutory intent of Section That provision-including its requirement that candidates for national offce be at the top of the ballot-has been pre cleared by the Justice Deparent in accordance with the Voting Rights Act of 1965, 42 U.S.C. 1973c. Petitioners' contention-that followig the plain language of the statute would require new preclearance-turns the Voting Rights Act on its head: In fact, failure to place candidates for national offce at the top of the ballot in accordance with the pre cleared statutory language would constitute a voting change and would require preclearance by the Justice Deparent. See, e.g., Lopez v. Monterey County v. California, l1:

15 U.S. 9 (1996); Clark v. Roemer, 500 U.S. 646 (1991); Foreman v. Dallas County, Texas, 521 U.S. 979 (1997). Petitioners' reliance on Riley v. Kennedy, 128 S.Ct 1970 (2008), is misplaced. In Riley, the precleared statutory provision never went into force or effect because of a decision from the state Supreme Cour. Here, there is no doubt that Section has been in force and effect since Moreover, Judge Green's ruling is consistent with both the plain meanng of the statute and the practice and procedure since 2000-i.e., the sample ballots in use in 2000, 2002, 2004 and The only relevant special elections since 2000 have involved nonparisan judicial elections and not national elections. Special elections for appeals cour were grouped with general elections for appeals cour in 2000 and Moreover, in 2000, 2002, 2004 and 2006 all judicial elections are listed below county elections commssioner and school board. The letter cited by the Petitioners from the attorney general's offce is referring to elections prior to the amendment of Section which mandated the order of the ballot, and thus is inapplicable. CONCLUSION For the reasons heretofore stated Governor Barbour and Secretary Hoseman's Petition for Extraordinary Writ and other relief should be denied and the Declaratory Judgment and Order of the Circuit Cour of Hinds County upheld. SO CERTIFIED, this the 15th day of September, Respectfully submitted, TRUDY BERGER 15

16 Of Counsel: BEGLEY LAW FIRM, PLLC Post Offce Box 287 Jackson, MS Telephone: Facsimle: Charles Griffn, MSB No Harold Brown, MSB No GRIFIN & ASSOCIATES Post Offce Box 968 Jackson, MS Telephone: Facsimle: CERTIFICATE OF SERVICE I, Samuel L. Begley, an attorney for Trudy Berger, do hereby certify that I have this day caused to be hand-delivered a tre and correct copy of the foregoing instrent upon the following person(s): John C. Henegan Donna Brown Jacobs P. Ryan Beckett Robert M. Frey BUTLER SNOW, O'MAR, STEVENS & CANADA, PLLC Post Office Box Jackson, MS H. Colby Lane OFFICE OF GOVERNOR HAEY BAROUR Post Offce Box 139 Jackson, MS ATTORNEYS FOR PETITIONERS GOVERNOR HALEY BAROUR AN SECRETARY OF STATE DELBERT HOSEMA Honorable Tomie T. Green Hinds County Circuit Cour Post Offce Box 327 Jackson, Mississippi

17 HINS COUNTY CIRCUIT JUGE THIS, the 15th day of September, S 17

18 Page 1 LEXSTAT MISS CODE ANN MISSISSIPPI CODE of 1972 ANNOTATED Copyright; 2008 by The State of Mississippi All rights reserved. *** This document reflects changes received through the st Extraordinary Session *** *** State Court Annotations are current through March 18,2008 *** TITLE 23. ELECTIONS CHAPTER 15. MISSISSIPPI ELECTION CODE ARTICLE 13. BALLOTS B.OTHERELECTIONS GO TO MISSISSIPPI CODE OF 1972 ARCmVE DIRCTORY Miss. Code Ann (2008) Arrangement of names of candidates, order of titles of offces, and printing of offcial ballot generally; order in which titles of various offices are to be listed on the ballot; furnishing of sample of official ballot; alphabetical arrangement in primary elections (1) Except as otherwise provided by Sections through and subsection (2) of this section, the arrangement of the names of the candidates, and the order in which the titles of the various offices shall be printed, and the size, print and quality of paper of the offcial ballot is left to the discretion of the officer charged with printing the official ballot; but the arrangement need not be uniorm. (2) The titles for the various offices shall be listed in the following order: (a) Candidates for national offce; (b) Candidates for statewide office; (c) Candidates for state district office; (d) Candidates for legislative office; (e) Candidates for countywide office; (f) Candidates for county district office. The order in which the titles for the various offices are listed within each of the categories listed in this subsection is left to the discretion of the offcer charged with printing the official ballot. (3) It is the duty of the Secretary of State, with the approval of the Governor, to furnish the designated commissioner of each county a sample of the official ballot, not less than fifty-five (55) days prior to the election, the general form of which shall be followed as nearly as practicable. HISTORY: SOURCES: Derived from 1972 Code (Codes, 1892, 3656; 1906, 4163; Hemingway's 1917, 6797; 1930, 6234; 1942, 3263; Laws, 1970, ch. 506, 26; Laws, 1978, ch. 391, 2; Laws, 1984, ch. 401, 5;

19 MISSISSIPPI LEGISLATUE REGULAR SESSION 2000 By: Tollison To: Elections SENATE BILL NO (As Sent to Governor) 1 AN ACT TO AMEND SECTIONS , , , , , , , , , , , , , , , AN , MISSISSIPPI CODE OF 1972, TO 5 CLARIFY THE APPLICATION FOR REGISTRATION AS A VOTER; TO PROVIDE 6 THA THE OUALIFYING DEADLINE FOR ALL ELECTIVE OFFICES SHALL BE AT 7 5:00 P.M. ON THE LAST DAY UPON WHICH A CAIDATE MAY OUALIFY FOR 8 ELECTIVE OFFICE; TO CLARIFY THE MAER IN WHICH THE QUALIFICATIONS 9 OF CANIDATES FOR ELECTIVE OFFICE ARE EXAMINED: TO REOUIRE THT 10 COPIES OF THE STATEMENTS REQUIRED TO BE FILED WITH THE STATE 11 EXECUTIVE COMMITTEE BY CANIDATES FOR PARTY NOMINATION BE 12 TRASMITTED TO AN RECEIVED BY THE OFFICE OF THE SECRETARY OF 13 STATE BY NOT LATER TH 6: 00 P.M. ON THE DATE OF THE OUALIFYING 14 DEADLINE: TO PROVIDE THAT IN CASES IN WHICH THERE IS BUT ONE 15 CANIDATE FOR EACH OFFICE CONESTED AT THE PRIMARY ELECTION, SUCH 16 CANIDATES SHALL BE DECLARED THE NOMINEES; TO PROHIBIT PERSONS 17 FROM OUALIFYING FOR OFFICE BEFORE JAARY 1 OF THE YEAR IN WHICH 18 THE ELECTION IS TO OCCUR: TO PROVIDE THAT IN CASES IN WHICH ONLY 19 ONE CANIDATE HAS OUALIFIED FOR AN ELECTIVE OFFICE THA SUCH 20 CANIDATE SHALL BE DECLARED ELECTED; T8mBREfWEÐ:J3B )RFl;~~N VOTE BY MAIL MUST BE MAILED 24 CERTIFICATE ON THE ABSENTEE BALLOT ENVLOPE THAT MUT BE COMPLETED 25 BY PERSONS WHO WITNESS THE SIGNATUE OF A VOTER WHO is TEMPORAILY 26 OR PERMAENTLY DISABLED; TO PROHIBIT CANIDATES FROM OUALIFYING 27 FOR OFFICE USING THE INTERNET; TO PROVIDE THA ALL PRINTING ON 28 ABSENTEE BALLOT ENVELOPES SHAL BE BLACK: AN FOR RELATED 29 PURPOSES. 30 BE IT ENACTED BY THE LEGISLATUE OF THE STATE OF MISSISSIPPI: 31 SECTION l. Section , Mississippi Code of 1972, is 32 amended as follows: (1) Applications for registration as electors of 34 this state, which are sworn to and subscribed before the registrar 35 or deputy registrar authorized by law and which are not màde by 36 mail, shall be made upon a triplicate form in the following words 37 and figures: 38 "APPLICATION FOR REGISTRATION 39 (You may receive assistance in filling out this form from any S, B. No \SS03\R828SG PAGE 1

20 Page 1 LEXSTAT MISS CODE ANN MISSISSIPPI CODE of 1972 ANNOTATED Copyright; 2008 by The State of Mississippi All rights reserved. *** This document reflects changes received through the st Extraordinar Session *** *** State Court Annotations are current through March 18,2008 *** TITLE23. ELECTIONS CHAPTER 15. MISSISSIPPI ELECTION CODE ARTICLE 15. VOTING SYSTEMS D. OPTICAL MARK REING EQUIPMENT GO TO MISISSIPPI CODE OF 1972 ARCIlE DIRCTORY Miss. Code Ann (2008) Form of ballots; posting of sample ballots; ballot security envelopes The ballots shall, as far as practicable, to be in the same order of arrangement as provided for paper ballots that are to be counted manually, except that such information may be printed in vertical or horizonta rows. Nothing in this chapter shall be construed as prohibiting the information being presented to the voters from being printed on both sides of a single ballot. In those years when a special election shall occur on the same day as the general election, the names of candidates in any special election and the general election shall be placed on the same ballot by the commissioners of elections or officials in charge of the election, but the general election candidates shall be clearly distinguished from the special election candidates. At any time a special election is held on the same day as a party primary election, the names of the candidates in the special election may be placed on the same ballot, but shall be clearly distinguished as special election candidates or primary election candidates. Ballots shall be printed in plain clear type in black ink and upon clear white materials of such size and arrangement as to be compatible with the OMR tabulating equipment. Absentee ballots shall be prepared and printed in t~e same form and shall be on the same size and texture as the regular official ballots, except that they shall be printed on tinted paper; or the ink used to print the ballots shall be of a color different from that of the ink used to print the regular official ballots. Arrows may be printed on the ballot to indicate the place to mark the ballot, which may be to the right or left of the names of candidates and propositions. The titles of offices may be arranged in vertical columns on the ballot and shall be printed above or at the side of the names of candidates so as to indicate clearly the candidates for e~ch office and the number to be elected. In case there are more candidates for an offce then can be printed in one (1) column, the ballot shall be clearly marked that the list of candidates is continued on the following column. The names of candidates for each offce shall be printed in vertical columns, grouped by the offices which they seek. In partisan elections, the part designation of each candidate, which may be abbreviated, shall be printed following his name. Two (2) sample ballots, which shall be facsimile ballots of the official ballot and instructions to the voters, shall be provided for each precinct and shall be posted in each pollng place on election day. A separate ballot security envelope or suitable equivalent in which the voter can place his ballot afer voting, shall be provided to conceal the choices the voter has made. Absentee voters wil receive a similar ballot security envelope provided by the county in which the absentee voter wil insert their voted ballot, which then can be inserted into a return

21 ~ Page 1 LEXSTAT MISS CODE ANN MISSISSIPPI CODE of 1972 ANNOTATED Copyright; 2008 by The State of Mississippi All rights reserved. *** This document reflects changes received through the st Extraordinary Session *** *** State Court Annotations are current through March 18,2008 *** TITLE 23. ELECTIONS CHAPTER 15. MISSISSIPPI ELECTION CODE ARTICLE 25. VACANCIES IN OFFCE GO TO MISSISSIPPI CODE OF 1972 ARClßE DIRCTORY Miss. Code Ann (2008) Special elections to fil vacancies in county, county district, and district attorney offces Except as otherwise provided by law, the first Tuesday after the first Monday in November of each year shall be designated the regular special election day, and on that day an election shall be held to fil any vacancy in county, county district, and district attorney elective offces. All special elections, or elections to fill vacancies, shall in all respects be held, conducted and returned in the same manner as general elections, except that where no candidate receives a majority of the votes cast in such election, then a runoff election shall be held three (3) weeks after such election and the two (2) candidates who receive the highest popular votes for such office shall have their names submitted as such candidates to the said runoff and the candidate who leads in such runoff election shall be elected to the offce. When there is a tie in the first election of those receiving next highest vote, these two (2) and the one receiving the highest vote, none having received a majority, shall go into the runoff election and whoever leads in such runoff election shall be entitled to the office. In those years when the regular special election day shall occur on the same day as the general election, the names of candidates in any special election and the general election shall be placed on the same ballot, but shall be clearly distinguished as general election candidates or special election candidates. At any time a special election is held on the same day as a party primary election, the names of the candidates in the special election may be placed on the same ballot, but shall be clearly distinguished as special election candidates or primary election candidates. HISTORY: SOURCES: Derived from 1972 Code (Codes, 1880, 158; 1892, 3685; 1906, 4193; Hemingway's 1917, 6827; 1930, 6267; 1942, 3296; Laws, 1954, ch. 356; Laws, 1984, ch. 465, 1; repealed by Laws, 1986, ch. 495, 335); en, Laws, 1986~ ch. 495, 249; Laws, 2007, ch. 434, 1, eff June 15,2007 (the date the United States Attorney General interposed no objection under Section 5 of the Voting Rights Act of 1965, to the amendment of this section.) NOTES: EDITOR'S NOTE. --On June 15,2007, the United States Attorney General interposed no objection, under Section 5 of the Voting Rights Act of 1965, to the amendment of this section by Laws of 2007, ch. 434.

22 Search - 3 Results Page 1 of2 Dossier j HIslory I i9 Source: Legal:'/.../:' MS. Mississippi Code of 1972 Annotated, Constitution, Court Rules & ALS, Combln III TOC: Mis.ÊJ.lPpLC.Q.g~..f.Jli?. 8in9.Jg.teg._çQnimYllQn...G9..yr...BYJ.asJ,.ßL~LÇQm!lin. Çl :./......,.. :. Aßi'ÇLE_2Ei.j/AÇßN.ÇlEEUJ~LQFfJ.Q.E : Elections to fill vacancies In offce of U.S. Senator; interim appointments by Governor Terms: (Edit Search I Suggest Terms for My Search).Select for FOCUSTM or Delivery fr Miss. Code Ann MISSISSIPPI CODE of 1972 ANNOTATED Copyright; 2008 by The State of Mississippi All rights reserved. *** This document reflects changes received through the st Extraordinary Session *** *** State Court Annotations are current through March 18, 2008 *** TILE 23. ELECTIONS CHAPTER 15. MISSISSIPPI ELECTION CODE ARTICLE 25. VACANCIES IN OFFICE GQT9M1SSlSSlPP;U;;QQEQl";l.9.7'l. AR(;l:l:VE..PIRE(;TQRY Miss. Code Ann (2008) Elections to fill vacancies in offce of U.S. Senator; interim appointments by Governor (1) If a vacancy shall occur In the offce of United States Senator from Mississippi by death, resignation or otherwise, the Governor shall, within ten (10) days after receiving offcial notice of such vacancy, issue his proclamation for an election to be held In the state to elect a Senator to fill such unexpired term as may remain, provided the unexpired term Is more than twelve (12) months and the. election shall be held within ninety (90) days from the time the proclamation is issued and the returns of such election shall be certified to the Governor in the manner set out above for regular elections, unless the vacancy shall occur in a year.that there shall be held a general state or congressional election, in which event the Governor's proclamation shall designate the general election day as the time for electing a Senator, and the vacancy shall be filled by appointment as hereinafter provided. (2) In case of a vacancy In the offce of United States Senator, the Governor may appoint a Senator to fill such vacancy temporarily, and If the United States Senate be in session at the time the vacancy occurs the Governor shall appoint a Senator within ten (10) days after receiving offcial notice thereof, and the Senator so appointed shall serve until his successor is elected and commissioned as provided for in subsection (1) of this section, provided that such unexpired term as he may be appointed to fill shall be for a longer time than one (1) year, but if for a shorter time than one (1) year he shall serve for the full time of the unexpired term and no special election shall be called by the Governor but his successor shall be elected at the regular election. HISTORY: SOURCES: Derived from 1972 Code (Codes, Hemingway's 1917, 6835; 1930, 6279; 1942, 3308; Laws, 1914, ch. 148) and (Codes, Hemingway's 1917, 6836; 1930, 6280; 1942, 3309; Laws, 1914, ch. 148), both repealed by Laws, 1986, ch. 495, 335; en, Laws, 1986, ch. 495, 260, eft from and after January 1, JUDICIAL DECISIONS 1. CONSTRUCTION AND APPLICATION. Miss. Code Ann Is silent regarding the situation in which a senatorial vacancy occurs after a general state or congressional election, and the statute fails to implement the specific power granted to the leglsiature by the Seventeenth Amendment for directing the fillng of the vacancy by election. As such, the general power granted to the executive branch of the state by the Seventeenth Amendment to Issue writs of election is controllng. BarJ Q.!JLY-'_SJftte_ex.r L..ttQ9JJJ...~4..s9-'~d 23G..illss,. 2008). As portions of Mlss_"Ç.QÇ:Le.AJJD,.!LZ~::.;t5~S.S.S were ambiguous, and others silent, a writ of election Issued by the Governor on December 20, 2007, designating November 4, 2008, as the general election day for electing a U.S. Senator to complete the term of offce of a Senator who had resigned was not constitutionally infirm. The circuit court erred, as a matter of law, in deeming plain, clear, and unambiguous, and then finding the writ of election exceeded the Governor's constitutional and statutory authority.sar.boyly'.stat _?\. re\,..hqqd,_974. SQ..2d.232 (Miss.2QQ8). RESEARCH REFERENCES AM JUR. _:UL8.m,_.lYr,_2d,EJeçtI9J1S 2H, 2:15. Z7AJJ1.~ JJ.r,_2.\tJ'!nited.states.9. OS. 29 C.J.S., Elections 128, C.J.S., United States 22. USER NOTE: For more generally applicable notes, see notes under the first section of this heading, article, part, chapter, or title. Source: Legal:'/.../:' MS - Mississippi Code of 1972 Annotated, Constitution, Court Rules & ALS, Combin III TOC: MI\ì~SJ1RiiÇ_QJ!~LQL1!l2MÐQJslleÇl,_ç_Q!lm!!JiQn.J,;Q!!rLR.!!t\ì ß,8lS.,.GQ!JJ:!n.e_Q. :./...,, :. ARIIÇ,lE.2_Ei.Y!..GANCJE;;UN.Q.EEIGE : Elections to htt://ww.lexis.com/research/retrieve? _ m=c6ed43 b8 88bb5 fe6f2bd6845dd5e62fa&docnu... 9/15/2008

23 Miss. Code Ann Page 2 AMENDMENT NOTES. --The 2007 amendment substituted "three (3) weeks" for "two (2) weeks" in the second paragraph. - CROSS REFERENCES. --Person appointed by Governor to serve as district attorney to fill vacancy unti election can be held may practice law privately while serving, see , , and JUDICIAL DECISIONS (Reserved for future use.) 6. Under fonner Section (RSERVED FOR FUTURE USE.) 6. UNDER FORMER SECTION The trial court improperly denied relief in a suit to enjoin the use of certn county election districts on the ground that they perpetuated dilution of black voting strength where the unresponsiveness of offcials to the needs of black citizens and the residual effects of past discrimination were evidenced by, inter alia, the poll ta, the literacy requirement, the property requirement for county offcers, and the electoral mechansm of majority vote requirements. United States v. Board ofsupvrs. 571 F.2d 951 (5th Cir.1978). See Day v. Board ofsupvrs., 184 Miss. 611,185 So. 251 (1939). ATTORNEY GENERAL OPINIONS Miss. Code Section designates first Tuesday after first Monday in November of each year as "regular special election day." Higginbotham, May 12,1993, A.G. Op. # Although a vacancy on a county board of supervisors wil be filled pursuant to special election proceedings under this section, Miss. Code Section requires that the remaining board members appoint an eligible person to serve the remaining portion of the unexpired term until the special election is conducted. Smith, Aug. 29, 1997, A.G. Op. # AM JUR. 26 Am. fur. 2d, Elections 214, Am. fur. 2d, Municipal Corporations, Counties, and Other Political Subdivisions 254. CJS. 20 C.J.S., Counties C.J.S., Elections 128,182. USER NOTE: For more generally applicable notes, see notes under the first section of this heading, article, part, chapter, or title.