IN THE FIRST JUDICIAL DISTRICT OF THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI PI L E

Transcription

1 THE STATE OF MISSISSIPPI ex rei. ATTORNY GENERAL JIM HOOD v. GOVERNOR HALEY BAROUR IN THE FIRST JUDICIAL DISTRICT OF THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI PI L E JAN PLAITIFF BARBARA DCtNWti~ftP~KNO CIV - D BY D.C. DEFENDANT OPPOSITION OF GOVERNOR HAEY BAROUR TO ATTORNEY GENERA HOOD'S MOTION FOR INJUCTIVE, DECLARTORY, AND OTHER RELIEF ETC. Honorable Haley Barbour, Governor of Mississippi, opposes Attorney General Hood's Motion for Injunctive, Declaratory, and Other Relief etc. The Motion should be denièd for each of the following reasons: 1. The Governor has the exclusive authority under the Seventeenth Amendment of the United States Constitution and the laws of Mississippi adopted pursuant to the Seventeenth amendment to issue the WRT OF ELECTION. The issuance of the WRT OF ELECTION is an administrative political act expressly delegated to the Governor by the Seventeenth Amendment and by the State Legislatue pursuant to the Seventeenth Amendment. See 1914 Miss. Laws, ch 148, 1, codifed, Miss. Code An (Hemingway 1917), attached as ex. "A." This Cour does not have the authority to review the actions of the Governor taken pursuant to the Seventeenth Amendment of United States Constitution any more than it would have the authority to review the acts of any other public offcial acting as a federal officer under the United States Constitution. 2. Even were the actions of the Governor regarded as having been taken under and governed by the laws of Mississippi, the actions of the Governor are clearly executive, rather than legislative in nature, and by their very natue are not "core" acts that impermissibly encroach upon authority granted the Legislative Department under Ar. IV of the 1890

2 Mississippi Constitution. Accordingly, Attorney General Hood has failed to present a colorable claim that the Governor's actions violate the 1890 Mississippi Constitution. 3. Furhermore, under well-established precedent of the Supreme Cour of Mississippi, the strict separation of powers provisions of the 1890 Mississippi Constitution expressly prohibit the cours of Mississippi from reviewig such admstrative political acts of the Governor who has been given the exclusive authority to implement the authority expressly delegated to him by the State Legislatue to issue the instant WRT OF ELECTION. To this end the Supreme Cour of Mississippi has repeatedly ruled that strict separation of powers principles preclude the Judicial Deparment from reviewing policy decisions made by the State Legislatue or administrative political decisions delegated by it to a member of the State Executive Deparment. 4. The cours of Mississippi do not have subject matter jurisdiction to issue an injunction or a writ of mandamus or prohibition to the Governor of Mississippi. E.g., Fordice v. Thomas, 649 So. 2d 835,840 (Miss. 1995); State v. McPhail, 182 Miss. 360, 180 So. 387, (1938); Vicksburg & MR. Co. v. Lowry, 61 Miss. 102 (1883). i 5. The cours of Mississippi do not have subject matter jurisdiction to enjoin an election under the laws of Mississippi for "it is against the policy of the state to have elections and other political matters interfered with by the courts" of Mississippi. Gibbs v. McIntosh, 29 So. 465, (Miss. 1901), citing Ex parte Wimberly, 57 Miss. 437 (Miss. 1879).1 1 The adoption of the Rules of Civil Procedure left these cases unaffected. Rule 65( e) of provides that the "(ijnjunctive powers heretofore vested in the Circuit and chancery cour remain unchanged by this rule." 2 This holds tre whether the suit to enjoin the election is fied in chancery or circuit cour. Barnes v. McLeod, 140 So. 740,747 (Miss. 1932); accord Brumfield v. Brock, 142 So. 745, (Miss. 1932) (noting that "all the authorities from this state were reviewed and analyzed" in Barnes, supra). 2

3 6. The State Attorney General, as a member of the Judicial Deparent of the State of Mississippi, does not have the authority under the separation of powers provisions of the 1890 Mississippi Constitution to interfere with the administrative political act expressly delegated to the Governor of Mississippi by the State Legislatue under the United States Constitution and the laws of Mississippi by initiating a legal action against the Governor, who as the Chief Executive Offcer of the State, is expressly charged under the 1890 Mississippi Constitution with faithflly executing the laws of Mississippi, which includes of course the United States Constitution and any duties that it expressly imposes upon the Governor. Attorney General Hood canot identify any statutory or common law authority that entitles him to bring this suit. He therefore lacks standing. Whle there may be circumstances under which it is proper for hi to intervene in an action against the Governor, there is no authority for Attorney General Hood himself to bring suit against the Governor. To the contrary, the Legislatue has impliedly declared that the State Attorney General is not authorized to bring such suits. See Miss. Code (1972) (expressly authorizing Attorney General to bring certain types of suits; this type suit not among them). 7. Even if Attorney General Hood had the authority to bring this suit, and even if his Cour had the authority to hear it, and the authority to render the relief requested, Attorney General Hood can not show that he has a "clear right" to the relief sought against the Governor. Aldridge v. West, 929 So. 2d 298, 302 (Miss. 2006), quoting Board of Education v. Sigler, 208 So. 2d 890, 892 (Miss. 1968); see In re Terra Internatl, Inc., 134 F.3d 304, (5th Cir. 1998) ("We wil grant a writ of mandamus only when the petitioner demonstrates that its right to the writ is 'clear and indisputable. "'), quoting In re Dresser Indus., 972 F.2d 540, 543 (5th Cir. 1992). Attorney General Hood can not therefore satisfy the legal standard for the issuance of a preliminary injunction. 3

4 8. Even if Attorney General Hood were not required to show he has a "clear right" to the relief, he is not entitled to a preliminar injunction. Under Mississippi law, a plaitiff seeking to obtain a preliminar injunction must prove: (1 ) a substantial likelihood of success on the merits; (2) an injunction is necessar to prevent irreparable injur; (3) the threatened injur to the movant outweighs the har an injunction might do to the respondent; and (4) entry of a prelimiary injunction is consistent with the public interest. City of Durant v. Humphreys County Memorial Hospital/Extended Care Facilty, 587 So. 2d 244,250 (Miss. 1991); see also American Electric v. Singarayar, 530 So. 2d 1319, 1324 (Miss. 1988).3 Here, where Attorney General Hood seeks to alter, rather than preserve, the status quo, the burden he bears is even more strenuous. "An injunction pendente lite, changing the status quo, should not be issued unless it clearly and conclusively appears that the par is entitled thereto." Cumberland Tel. & Tel. Co. v. Stevens, 274 F. 745, 747 (S.D. Miss. 1921) (emphasis added). Even if Attorney General Hood is not seeking to change the status quo, he must clearly prove each of the four requirements. Hiliard v. BellSouth Medical Assistance Plan, 918 F. Supp. 1016, 1027 (S.D. Miss. 1995) ("(aj prelimnar injunction is an extraordinary measure which should be granted only when a movant clearly carries the burden of persuasion on all four factors" of the preliminary injunction analysis). (1) Attorney General Hood cannot show that there is a substantial likelihood that he wil prevail on the merits, because the Governor's WRT OF ELECTION complies with applicable law 9. As explained in the Governor's Memorandum of Authorities in support of his Motion to Dismiss, Or, In the Alternative, For Judgment On the Pleadings, the Governor's WRT 3 Because Miss. R. Civ. P. 65 is derived "in concept and wording from prior federal practice," the Mississippi Supreme Court "flesh(es) out (Miss. R. Civ. P. 65) by reference to federal standards." American Electric, 530 So. 2d at 1324 n.6. 4

5 OF ELECTION, dated December 20, 2007, clearly complies with the Seventeenth Amendment of the United States Constitution, the 1890 Mississippi Constitution, and the laws of Mississippi. Thus, even if the Governor's WRT OF ELECTION is reviewable, Attorney General Hood canot show that the Governor's actions in implementing the exclusive authority granted to him are improper, much less manfestly wrong.4 (2) Attorney General Hood cannot demonstrate injury, must less irreparable injury. 10. As required by law, the qualified electors of Mississippi wil vote for the candidate of their choice in the special election called by the Governor for November 4, 2008, since the unexpired term created by Senator Lott's resignation is longer than 12 months. Accordingly, the people are not being deprived of their right to vote. In fact it is a matter of common knowledge (and this Cour can certainly take judicial notice) that the voter turnout for a statewide general election, paricularly in a Presidential election year, is far greater than in a special election. Affdavit of E. Clark 1 (Jan. 8, 2008), attached as Exhibit "B." Thus, holding the special election on the same date as the Presidential election wil ensure that a larger number of people wil paricipate in the special election to fill the remaining 4 years of the unexpired term for this seat, thereby ensuring that the candidate chosen represents all the people of the State of Mississippi. Until the vacancy is filled by the special election, the people of Mississippi wil be represented in the United States Senate by the temporary appointee of the Governor as provided by law. Under these circumstances, Attorney General Hood has failed to show that the 4 "Manifestly wrong" is the applicable legal standard in a somewhat analogous context. See Tuck v. Blackmon, 798 So. 2d 402, 406 (Miss. 2001). The standard of review in a case like the instant case, ifreview were even possible, could certainly be no less deferential. Cf Evans v. Stephens, 387 F.2d 1220, 1226 (11th Cir. 2004) (addressing authority of President to fill vacancies - "When President acts under color of express authority of United States Constitution, reviewing court starts with presumption that his acts are constitutional."). 5

6 qualified electors or the people of Mississippi have been injured in any maner, must less irreparably injured. 11. Attorney General Hood's position that Senatorial vacancies must be filled by election as quickly as possible (the so-called "90-day Rule") and that appointments are a disfavored, desperate expedient is purortedly bolstered by his public policy arguent that "(ajs a result of the Governor's unconstitutional act, the State of Mississippi wil be without a properly elected replacement Senator for at least 322 days (10 months and 17 days), and possibly 342 days (11 months and 7 days) in the event of a ruoff election." See (Complaint at '15). However, whether there is a "har" or "injur" to the voting public by setting special elections to fill Senate vacancies in 90 days or 322 days is a matter for the Legislatue to determine, as both the Seventeenth Amendment and Section recognze Here, the "extra" seven months in which the vacancy wil be filled by appointment, rather than election, so greatly troubling to Attorney General Hood, are of no concern to the Legislatue. We know this because Section shows this on its face: vacancies are to be filled by election only when the unexpired term is more than one year. When the unexpired term to be filled is less than one year, the Governor's appointee serves the entire unexpired term and no special election is held at all. 13. There can be no mistake on this point; subsection (1) says it, and subsection (2) repeats it. Subsection (1), which deals with filing vacancies by special election, states that such 5 It is the Legislature, not the courts or the Attorney General, that has been constitutionally charged with setting public policy. Pinnell v. Bates, 838 So. 2d 198, 202 (Miss. 2002); accord City of Starkvile v. 4-County Elec. Power Ass'n, 819 So. 2d 1216, 1221 (Miss. 2002) ("The Legislature is the foremost expositor of public policy"); Mississippi Power & Light Co. v. Lumpkin, 725 So. 2d 721, 724 (Miss. 1998) (same); Daniels v. Harrison County Bd. of Sup'rs, 722 So. 2d 136, 141 (Miss. 1998) (Banks, PJ., specially concurring) (same); Presley v. Mississippi State Highway Com'n, 608 So. 2d 1288, 1291, (Miss. 1992) (Legislature "determines what is in the public interest"; function of creating a public policy "is primarily one to be exercised by the legislature and not by the courts"; courts "do not have the function of legislating or the power to legislate") (superseded by statute on other grounds). 6

7 elections are to be held "provided the unexpired term is more than twelve (12) months." Miss. Code (1) (1972). Subsection (2), which deals with temporarily filling vacancies by appointment, states that the appointee "shall serve until his successor is elected and commission as provided for in subsection (1) ofthis 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 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. (Emphasis added.) Miss. Code (1972). 14. Even under Attorney General Hood's interpretation of Section , if Senator Lott had resigned on January 1, 2008, it is undisputed that there would be no special election before November 4, Instead, subsection (1) expressly provides that the Governor's appointee to the Senate would serve until the next regular election, some 308 days until the regular election, and 329 days in the event of a ruoff. This is 14 days less than Attorney General Hood complains about in his Complaint. Clearly, the Legislature considered, and adopted, a statutory scheme that took into account the possibilty that an appointed Senator might serve precisely the amount oftime created by the Governor's proclamation. 15. In short, the State Legislatue does not share Attorney General Hood's distrust and suspicion of temporary appointees. Any downside that there may be to having an appointee temporarily hold a Senate seat is, to the Legislatue, negligible -- so negligible that if by temporary we mean less than a year there is no need for an election at all. 6 6 Other States are even less concerned: as of 1968, when a federal three-judge panel surveyed the situation, fort states had established Seventeenth-Amendment procedures under which appointees could serve, without any election at all, for up to two years. See Valenti v. Rockefeller, 292 F. Supp. 851, 858 (W.D.N.Y. 1968) (also rejecting constitutional attacks on statute that allowed appointee to serve 29 months without an election), aff'd without opinion, 393 U.S. 405 (1969). Pre-Seventeenth Amendment practice was consistent. See, e.g., Valenti v. these Rockefeller, 292 F. Supp. at 864 ("Between 1789 and here were i 79 Senatorial appointments; 32 of these served for at least 14 months). appointees served for more than one year and 17 of 7

8 16. The Legislatue, itself an elected body, obviously has great respect for elections, but in Section it has manfested its judgment that the goal is not hasty elections but orderly elections, economical elections, elections in which voters are likely to participate. 7 The choice that the Governor, in the discharge of his sworn constitutional duties, has made is fuly consistent with the Legislatue's intent. 8 Therefore, Attorney General Hood's alleged "irreparable har" - the people of Mississippi being represented by an appointed rather than elected Senator for some 322 days - is in stark contrast with the view of the Legislatue on this matter. (3) The threatened injury to Plaintiff does not outweigh the injury resulting from this Court's impermissible interference with the election process. 17. Given that there is no threatened injury at all, it follows that Attorney General Hood canot demonstrate that the threatened injur to him in the absence of a preliminary injunction outweighs the har arising from this Cour's impermissible interference with the election process. See Gibbs v. McIntosh, 29 So. 465, (Miss. 1901), citing Ex parte Wimberly, 57 Miss. 437 (Miss. 1879). As such, Attorney General Hood canot satisfy his burden of proof as to the "balance of har" component of the preliminary injunction analysis by 7 Cf Valenti v. Rockefeller, 292 F. Supp. at 867 ("One of the goals served by these changes in the state's law (i.e., making the special election coincide with the general election) is to maximize voter participation in the nomination and election of Senators, even though as a consequence the holding of elections is somewhat delayed"). 8 Moreover, one need only look at the statutory scheme set forth by the State Legislature with respect to filling an open seat in the U.S. House of Representatives to understand that the State Legislature is not overly concerned with fillng open seats as expeditiously as possible. Under Miss. Code (1972), revised effective July 1, 2007, the Governor must issue his Writ of Election to fill an open seat in the House of Representatives within 60 days. However, Section goes on to provide that the Writ must order the the order ofthe Governor." In other words, the election to occur "not less than sixty (60) days after the issuance of Governor can set a special election to fill a vacancy in a House seat 60 days after the issuance ofthe Writ, 120 days after the issuance of the Writ, or anytime up through and until the next regularly-scheduled election for that seat. Therefore, it simply cannot be said that there is a recognized public policy in this State of filling vacancies in open Congressional seats in a manner that values expedient elections over orderly, economical and practical elections. The State Legislature has rejected that position in its enactment of Section and Section

9 clearly and conclusively showing that he is entitled to the relief sought or indeed by even showing that this Cour has the jurisdiction or the authority to grant the relief sought. (4) Granting a preliminary injunction is not in the public interest. 18. The position of United States Senator is one of the most important positions in our Country and our State. In the last 60 years, there have been only four members of the United States Senate from the State of Mississippi. These four Senators have served an average term of over 30 years. Each of our Senators has been a distingushed and productive member of that ilustrious body. As a small state, the individual abilty of representatives in Washington is paricularly important to the abilty of our State's interests to be championed in Washington. Mississippians will benefit from more time, not less, to familarize themselves with the candidates and their positions on the issues, so that they might make a reasoned decision at the ballot box as to who should fill this important position. 19. Attorney General Hood suggests that the special Senate election could be held on March 11, 2008, the same date that a Presidential preference primary wil be held by the Democratic and Republican parties. To do as Attorney General Hood suggests would result in the de facto disenfanchisement of hundreds of thousands of voters who would otherwise paricipate in the election of our next U.S. Senator. Past experience demonstrates that there is significantly less tuout on Presidential primar election dates than on Presidential general election dates. The last year that the Democratic and Republican paries held a Presidential preference primary was That year, 88,602 voters paricipated in the Democratic Presidential preference primary, and 114,979 voters paricipated in the Republican Presidential preference primary. A total of203,581 votes were cast in both Presidential preference primaries. The contrast to voter paricipation in the 2000 general election could not be more dramatic: 994,926 voters participated in the 2000 general Presidential election, almost five times as many 9

10 voters as paricipated in the Presidential preference primaries held that year. Affdavit of E. Clark (Jan. 8, 2008), attached as Exhbit "B." 20. Special elections are expensive, which is one of the fudamental reasons, recognized by the State Legislatue in enacting Sections and that it is good public policy to hold such elections in connection with a regularly-scheduled general state or congressional election. If the U.S. Senate Special Election is held on the next regularly scheduled General Election date of November 4, 2008, the Secretar of State's office estimates that there would be little, if any, additional costs incurred. Affdavit of M. Lennep (Jan. 8, 2008), attached as Exhbit "C." 21. The last statewide special election held in Mississippi was the 2001 flag referendum. According to the Secretary of State's office, that election cost the state and counties approximately $2.2 milion dollars. If the special Senate election were held on a date other than November 4, 2008, the Secretary of State's offce estimates that the cost to the State and counties would be, again, approximately $2.2 millon dollars. If the special Senate Election is held on the date of the presidential preference primaries, March 11, 2008, it is estimated that the additional cost would be similar to a stand-alone election. Affidavit ofm. Lennep (Jan. 8,2008), attached as Exhibit "C." There would be little, if any, cost savings to holding the election on March 11, In short, the public interest clearly favors an orderly, practical election process that proceeds in the maner established by the Seventeenth Amendment and applicable Mississippi law as implemented by the Chief Executive Offcer of Mississippi, who has the exclusive authority to act in this field. No public interest is served by this Cour's intervention 10

11 into an arena exclusively reserved by the Federal Constitution and applicable Mississippi law to the Governor and the State Legislatue. 23. In support, the Governor relies upon the following exhbits: (a) 1914 Miss. Laws, ch. 148, codifed, Miss. Code An (Hemingway 1917), attached as Exhbit "A." (b) Afdavit ofe. Clark 1 (Jan. 8,2008), attached as Exhbit "B"; and (b) Afdavit ofm. Lennep (Jan. 8,2008), attached as Exhbit "C." The Governor also relies upon the arguments and authorities set out in his Memorandum Of Authorities In Support Of The Motion To Dismiss Or, In The Alternative, For Judgment On The Pleadings served contemporaneously with his Motion To Dismiss etc. CONCLUSION For these reasons, Governor Haley Barbour respectfully requests that the Cour deny Attorney General Hood's Motion For Injunctive, Declaratory, and Other Relief and grant the Governor any other general or special relief as to which he may be entitled. THIS, the 9th day of Januar, Respectfully submitted, GOVERNOR HALEY B. Colby Lane ( ) Jo r"' C. Henegan C.~~ (MSB No. 2286) P. Ryan Beckett (MSB No ) Robert 2rtdg ~ M. Frey (MSB No. 5531) Michael B. Wallace (MSB No. 6904) ATTORNEYS FOR HONORABLE HALEY BARBOUR, GOVERNOR OF THE STATE OF MISSISSIPPI 11

12 OF COUNSEL: OFFICE OF GOVERNOR HALEY BAROUR Post Offce Box 139 Jackson, MS (0) (F) BUTLER, SNOW, O'MAR, STEVENS & CANADA, PLLC 17th Floor, AmSouth Plaza Post Offce Box Jackson, Mississippi (601) (0) (601) (F) WISE, CARTER, CHILD, & CARWAY, P.A. Post Offce Box 651 Jackson, Mississippi (601) (0) (601) (F) 12

13 ,. oj, ',LAWS, OF THE (~.. :J STATE, OF Mississippi P.lSSED AT A REGUL SESSION OFTHll MISSISSIPPI LEGISLATURE.. \.,. HELD IN THE CITY OF JACKSON. Commencing January 6~ 1914, Endig March 28, 1914 and EXtraQrdinary Session held in June 1913 PUBLISHED BY AUTHORITY. MEMPme. Tl!l'N. PRE.. OF E.'H. CLARKE & Baa. 1914

14 " es and pubiment there- ite culverts.. iunicipality. b.arbors and nd therefor. d the pu,rment there-. hospitals, e corporate ts,' and the ise of land ;reams and -rent 'of a at and apic meeting, ition, unié$s including seven per. ty of the mrpose, ìi shall have' shall the 'ine. es having roving or otherwise. thè iinceed ten,ntuir. of. election may be 1S isbued ndebteci- STATE OF Mississippi, ': ness when this act becomes operative, or to bonds; the pro- :. ceeds of which have been invested in enterprises producing or having suffcient revenue over and above their operating.' expenses to pay the interest oii these bonds. ' Cities under commission goverient excepted. SEC. 5. The municipalities operating under the commission government laws are authorized to issue bonds for the foregoing purposes by a majority' vote, as provided' in the commission government laws; and the requirement of a two-thirds majority shall not apply to such municipalities. Revenues of public utilties pledged for payment of bonds. SEC. 6. That whenever bonds shall be issued for the construction or 'purchase of wat~rworks,. gas, or electric plants. the corporate authorities of the city or town $0 thereof. issuing them' may provide b'y ordinance, resolution,, contract. or otherwise. that said bonds shall be secured by pledge revenue said waterworks, gas, ói: electric lighting plants i to be constructed or purchased with the proceeds Bonds heretofore authoried not affected by this act. SEC. 7. That this act shall in no way atfëct the validity, of any bonds. heretofore issued, or 'of any bonds which may have been heretofore authorized àt an election held under existing la;yv,,whether the bonds so authorized have been' issu" d or not, and.shall not affect or repeal any private or local laws' n.ow in force and effèct authorizing the issuancè of bonds for' any purpose. SEC. 8. That all laws and parts of laws in conflict with this act be and the same are hereby; repealed., SEC. 9.. That. this act take effect and be in force from a.nd after its passage. Approved M;arch ' CHÀPTER 148. SENATE BILL No. 46. AN ACT to provine for the elèction of United St.ates. iieriators by the people ii.d fixing the time and prescribing t.he mannèr,of ele.ction.. ' ~ted States senators;,election of by the peóple. SECTIÓN 1. Be it enacted. by the Legislature of the State oj Mississippi. That United States senators from Mississippi 191. :'!. f":-,

15 " )92 LAWS OF THE shall be elected by the people, in accordance 'with the. seventeenth amendment to the constitution 'of the. United States; that United S,tates senators shall be elected at the same time and in the same manner that representativ,es in the lower house of congress are elected, and that they shall be elected at the congressional election next preceding the. expiration of a full term in the United States se'nate, and the election of a senator shall be certified to the governor in the saine manner that the,elections of representatives in congress are certified, and the governor shall issue a commission upon the proper certifcate certifying the election of a senatör. ) When senators to be elected. SEC. 2 That there shall be elected,. by the electors of Mississippi, qualified under the law to vote for repr'esentatives in. the lower house of congress, one United States senator at the same time 'and in the same manner that i:e.mbers of the lower house of congress are.elected in the year of our Lord nineteen hundred arid sixteen, and every six ye;irs thereafter; and in the same manner there shall be one United States senator elected at the congressional election in the year of our Lord nineteen hundred and eighteen, and every six years thereafter. Vacancy in senato.rship.; how..to be 'fied; governor's proclamation. SEè. 3. If a vacancy shall occur in the offce of United States senator from Mississippi by. deat.h~ resignation or otherwise, the go:vernor shall, within ten days after receiving offcial notice of such vacancy, issue his procls.mation for an election to be held in the State to elect a senator to fill sucn -unexpired term~ as may remain, provided such expired term is not' less than twelve months and the election shall beheld within ninety days from the tim.e.said pl'~clamation is issued; and the returns of such election shall be certified to the govern.qr in the manner setout above.for regular elections, unless said vacancy shall ~ccur in a year that t~ere shall he held. a gen-. eral 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 às hereinafter provided. Temporary vacancy; appointment by goverrior. 4. In case of a. vacancy in the offce of United SEC. States senator the governor may appoint a senator to fil such yacan,cy t~mpoi'árily, and if the United States senatè be in session 'at the time such vacancy.occurs, the governor shall. appoint. a senator within ten' days. after receiv.ing. ii ~.~ j ~ J offc: shall as a aš l. thai sha1 spec succ E this and 1 ANA for, Sta' of 1 and tion. shal tent date seco prin vote shal offc for pop whc hav prir sha: the the: hay and to.

16 ,'.' STATE OF M;iSSiSSiPPI Ø3 ~ seven- States; ne time e lower elected!ttion of Oil of a' manner ertified. proper offcia,1 notioe of such vaci ncy, aitd the seilatnr so e,ppointea., shall serve until his successor is ejected and commissioned as aboye provided for; provided, that such unexpired term as he m :y be appointed to fill shau. be for a longer time than one year, but if for a shorter time than one. year, he-' shall serve for the full time of the unexpired term :nd no special election shall be called. by the governor, Qut his succes~ol" shall pe elected at the regular election. ' SEC. 5. That all laws and parts of laws in confict with this' act are hèreby repealed, and thiš act shall take efrect and be in.force from and after its passage. Approved February 3, :tors of ;esenta-. States ~r that in the i every hall be. ~ssional :d and United ion o'r ceiving for an II SUCii term is' :l withed: and vernor ss said a gen-. e. gov- II day iall be Jnited to fil senatè V'ernor eiving, ':;.';~..,.' CHl\PTEll 149. SENATE BILL No AN ACT to airend spctiiju 3700'01 tjie code of 1906 CUI:S to pro:vidii Ilniforri dates. for congressional primary elections, and to provide for tqe nomination of.,united States senators,... SECTION 1. Be it enacted b.y th,e Legislature of the State of Mississippi, That section of the còdeof be, and the same is hereby amended so as to read às follòws: Dates of primarjes; what required to make nominations; second primary in' èertain cases.' The.first primary shall not be held earlier.th :n the' first day nor later than' the tenth ~ay of Augus.t, preceding any regùlar election, on a date to be fixed by.the statè'exeèütivè committee; and thè second primary shall be held three we~ks after the first primary. Any candidate' who.' receives the highest popl.lir vote cast for the offce wb,ich he seeks in the :frst primary. shall thereby become the nominee of his party for,such offce; provided also it be a majqrity of :ll the vote!, cast for that. o:rce. If no candia.i te receive s1lch majority of popular votes in the first primary, then the two' càndidates who receive tb,e highest popular vote for such offce sha.l have their naires submitted as i:uch candidates to a second primary, and the candja.a,te whö' lea"d.s in such second primary shall be entitled to the nomination..when there is a tie in the first 'primary as to who' recèives the next" highest vote, these two and' the one receiving. the highest vote, non,e having received a majority, shall go into the second primary, and whoever leads, in such second primary shall be entitled' to. the nomin'ation. "

17 ,"j "" SHOWING THE ~!,J GENERAL STATUTES IN FORCE AUGUST 1~ 1917, r'. l. ' fi:" I- I,, t:' " ft, EMBRACING THE CODE OF 1906 AS AMENDED AND ALL PERMANENT GENERAL AND PUBLIC ACTS OF THE LEGIS- LATURE PASSED SINCE THE ADOP- TION OF THA:r CODE CONTAINING ALSO.1 HE DECLARATION OF INDEPENDENCE AND THE CONSTITUTIONS OF THE UNITED STATES AND MISSISSIPPI' ALL COMPLETELY ANNOTATED BY WILLIAM HEMINGWAY OF THE JACKSON BAR IN TWO VOLUMES VOLUME II IND IANAPOLIS THE BOBBS-MERRILL COMPANY PUBLISHERS

18 iés thereof m district o.d returns..-should of repreience of a shall is 2806 have shall be. the state ;rict as or- 11e electors iminishec1, arge. -For the pursuance state shall of the folr Monroe,.sed of the 30to, Tate, sed of the 'er, Wash- sed of the o.ada, Car-.. of the fol- " Newton, sed of the Lawrence, mposed of iklin, Linised of the 0.. (Laws 106, ch vs 1910, ch REGISTRATION AND ELECTION 6836 Jefferson D ivis County was assigned to the sixth congressional district. (Laws 1906, ch In effect March 31, 1906.) Stone County was assigned to. the sixth congressional district. (Laws 1916, ch In effect January 6, 1916.) Walthall County was assigned to the seventh congressional district. (Laws 1912, ch In effect March 2, 1912.) (4199.) Concerning senators in congress-election by the people. -1. United States senators fr.om Mississippi shall be elected by the people, in accordance with the seventeenth amendment to the Constitution of the United States; that United States senators shall be elected at the same time and in the same manner that representatives in the lower house of congress are elected, and that they shall be elected at the congressional election next preceding the expiration of a full term in the United States senate, and the election of a senator shall be cer.tified'to the governor in the same manuer that the elections of representatives in congress are certified, and the governor shall issue a commission upon the proper certificate certifying the election of a senator. (Laws 1914, ch In effect February 3,1914.) When senators to beelected.-2. That there shall be elected, by the electors of Mississippi, qualified unc1er the law to vote for representatives in the lower house of congress, one United States senator at the same time and in the same manner that members of the lower house of congress are elected in the year of our Lord nineteen hundred and sixteen, and every six years thereafter; and in the same manner there shall be one United States senator elected at the congressional election in the year of our Lord nineteen hundred and eighteen, and every six years thereafter. (Laws 1914, ch In effect F.ebmary 3, 1914.) Vacancy in senatorship-how to be mled-governor's proclamation. -~. If a vacancy shall occur in the offce of Unitec1 States senator from Mississippi by death, resignation or otherwise, the governor shall, within ten days after receiving offcial notice of such vacancy, issue his proclamation.fnr an election to be held in the state to elect a senator to fill such unexpired term as may remain, provic1ec1 such expired term is not less than twelve months and the election shall be helc1 within ninety days from the time said proclamation is issuec1 and the returns of such election shall be certified to the governor in the manner set out above for regular elections, unless said 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 provic1ec1. (Laws 1914, ch In effect February 3, 1914.) Temporary vacancy-appointment by governor.-4. 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 Unitec1 Statìs senate be in. session at the time such vacancy occurs, the governor shall appoint a senator within ten c1ays after receiving offcial notice of such vacancy, and the senator so appointed shall serve unti his successor is electec1 anc1 commissioned as I! 'i 'i ili ii I. I' I! ", ii:.i; II!!ii 1:,!II!il I'! Ii ii I'~ Ị ii 'I I, Ii " i' '! i I!

19 6837 REGISTRATION AND ELEOTION 2808 above provided for; provided, that such unexpired term as he may be appointed to fil shall be for a longer time than one year, but if for a shorter tie than one 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. (Laws 1914, ch In effect February 3, 1914.) Election of judges and chancellors-dates and regulations of same. -1. On Tuesday after the first Monday in November, 1914, and every four years thereafter and concurrently with the election for representatives in congress, there shall be held an election in every county for judges of the several circuit and chancery court districts. The laws regulating the general elections shall, in all respects, apply to and govern elections of judges of the circuit and chancery courts. (Laws 1914, ch In effect March 16, 1914.) Terms of offce, when to begin.-3. Tliat said circuit court judges and chancery court judges so elected shall take offce on the first Monday in January, 1915, and shall hold the same for a term of four years. (Laws 1914, ch.150. In effect March 16, 1914.) Terms of judges and chancellors now in offce-when to create.- 4. The terms of all circuit court judges and chancery court judges holding offce now, whose terms shall not have sooner expired, or who may be holding offce on or before the first Monday in January, 1915, shall cease on said date and the salaries of all such judges shall cease on said date, unless their successors shall have failed to be elected and qualified. (Laws 1914, ch. '150. In effect MaTch 16, 1914.).l t 2 rd J. f 'That When in case vacancy of death, oocurs, resignation, how filled-special or vacancy from eleotions any cause in for the same.-5. offce of judge of any circuit court district or chancery court district, where the vacancy ocours more than nine months prior to a regular election for judge or chancellor, the governor shall issue his proclamation callng a special election to bc held in sixty days from the date of said proclamation in the circuit or -chancery court district wherein such vacancy shall have occurred, anet the person elected to fil such vacancy shall hold offce until his successor shall have been elected in the next succeeeling regular election for circuit court and chai)cery court judges, and shall have duly qualified. Pending the holdig of such special election, or where the vacancy occurs within nine months af a regular election for judges and chancellors, the governor shall make an emergency appointment to fi the vacancy until the same shall be fied by election as aforesaid. (Laws 1914, ch In effect March 16, 1914.) Qualifications and sa1ary.-6. The qualifications and salary of circuit court and chancery court judges shall remain the same as now provided by law. (Laws 1914, ch In effect March 16,1914.) (4206.) When electors shall be eleoted.-the number of electors of president and vice-president of the United States to which this state may be entitled, shall be chosen by the qualified electors of the state at large, on the fist Tuesday after the first Monday of November in the year in which an election of president and vice-president shall occur.

20 IN THE FIRST JUDICIAL DISTRICT OF THE CIRCUIT COURT OF HINDS COUNTY, MISSISSIPPI THE STATE OF MISSISSIPPI ex rei. ATTORNEY GENERAL JIM HOOD PLAINTIFF v. CNIL ACTION NO CIV-D GOVERNOR HALEY BARBOUR DEFENDANT STATE OF MISSISSIPPI COUNTY OF HINDS AFFIDAVIT OF SECRETARY OF STATE ERIC CLARK I, Eric Clark, a competent adult resident citizen of the State of Mississippi, having been duly sworn, state under oath the following: 1. I was first elected Secretary of State of Mississippi in November, 1995, and I am currently serving my third consecutive term in that offce. As the Secretary of State, I am the chief elections officer for the State of Mississippi. See Miss. Code Ann (Rev. this state. Furthermore, I 2007). Thus, I am knowledgeable with regard to the election laws of have for many years taught Mississippi history, having earned a doctorate in history, with an emphasis in Mississippi history, from Mississippi State University in I have taught history and governent at the high school, community college, and senior college levels, most recently at Belhaven College in Jackson, Mississippi. Therefore, I have a thorough knowledge of Mississippi history. 2. I have carefully studied Miss. Code Ann (Rev. 2007), which deals with "Elections to fill vacancies in the office of U.S. Senator." I believe that it permits the Governor to set the Special Election to fill the vacancy created by the resignation of United 1

21 States Senator Trent Lott for the General Election date of November 4,2008. Thus, I concur with the Governor's conclusion on this question. 3. I would also point out that holding a Special Election for United States Senator for the same date as the Presidential Preference/Federal Primary could possibly create serious confusion and disruption of these critical elections. Mississippi law clearly provides that the primares are to be administered by and strictly controlled by the local political party executive committees, not by the county Election Commissioners. See Miss. Code Ann , , , et seq. Indeed, I can testify to the fact that the parties steadfastly guard their authority over their primaries, as evidenced by the recent litigation styled Mississippi State Democratic Party, et al. vs. Haley Barbour, et al., being Civil Action No. 4:06cv29-P-B in the United States District Court for the Northern District of Mississippi (presently on appeal to the Fifth Circuit Court of Appeals). However, a special election, such as the Special Election for United States Senator, is to be administered by and controlled by the county Election Commissioners. This sets up a potential serious conflct between the jurisdictions of these two entities as to who has authority to determine the many thorny issues that usually arise at an election. One such issue would be which entity would resolve a dispute about allowing a voter to cast a primar ballot when that voter might not support that party's preferred candidate for United States Senator. This prospective conflct between governing authorities, as well as possible voter confusion, would be eliminated by holding the Special Election for United States Senator on the date of the 2008 General Election. 4. Based upon my knowledge of Mississippi's election history, I can also attest to the fact that, of all elections held in Mississippi, either primary of general, voter tum-out is 2

22 customarily at its highest for the General Election in a Presidential election year. For example, in the last year that both paries held Presidential Preference Primaiies, 88,602 voters participated in the Democratic primar and 114,979 voters paricipated in the Republican primar. Thus, a total of203,581 Mississippians participated in the 2000 Presidential Preference Primaries. In contrast to these numbers, in the 2000 General Election, 994,926 Mississippians turned out to vote - nearly five times the number that participated in the Presidential Preference Primaries ofthat year. 5. Generally speaking, it is also true that voter turn-out is higher for a regular election than for a "stand alone" special election. A good example of this occurred in December, 2004, when a special election was held for State Senate, District 1. In that "stand alone" special election with four candidates in the running, 3,266 voters paiiicipated. In the 2007 General Election, a total of 6,948 citizens cast their vote in an uncontested election for State Senate, District 1 - slightly more than two times the number who had cast votes in the 2004 Special Election. Further affiant says naught. SO SWORN, this g:~ day of January, ~ERIC CLARIC January, SWORN TO AND SUBSCRIBED BEFORE ME, this the _ day of. ~1i~~~~ij~tl)~gJil~;' ~,,'\\"'''. 'lj\ojso~~ii~ ~ if ~-..' C;. i.,i..".. A!;~'. "'., -If 00~- ~ ~ "".'...~~ ~ ~ ~- ~~;..' -. ~ My Commission :i:tr.ê i:(hty,!\.~;i~~ ~~' i.. i:' q' 'W' " :s ~r. i. ~L(ai\ l\ V. (.1,. i :.. ~ e ~"L" ~ ~.. - "t!~ ~ -r."" "..,:~.. l)~.,i ;,,,,':..' i,t,~ ~,~v; I... "t""'(.t. *.".,..li ii7i'qmmm~'.' 3 ~~~ NOT YPUB I

23 IN THE CIRCilT COURT OF HIS COUNTY, MISSISSIPPI FIRST JUICIAL DISTRICT THE STATE OF MISSISSIPPI ATTORNY GENERA JIM HOOD VS. GOVERNOR HAEY BAROUR PLAITIFF CIVL ACTION NO CIV-D DEFENDAN STATE OF MISSISSIPPI COUNTY OF HIDS AFFIDAVIT OF MAALAN LENNP I, Madalan Lennep, a competent adult resident citizen of the State of Mississippi, having been duly sworn, state under oath the following: 1. I am presently under contract by the Mississippi Secretar of State's Offce (hereafter "MSOS") as the Help America Vote Act (hereafer "HA VA") Project Manager. In this capacity, I serve as the primar point of contact for questions concerng the HA VA required election systems, including specifièally the Premier touchscreen voting machie system that was implemented in 77 of Mississippi's 82 counties. My responsibilities include contract management, proposal requests/review, election support cost management, and supply costs related to this voting system. Therefore, I have personal knowledge of the facts concernng the anticipated costs of a possible statewide special election for United States Senator (hereafter "U.S. Senate Special Election"). 2. The closest historical data which would serve as a good groundwork for a cost estimate for a special statewide election would be the costs incured for the August 2007 Primar 1

24 Run-Off. Therefore, based on these specific expenses and factoring in other historical data, I can estimate the system costs of the U.S. Senate Special Election if held on a separate date from any other election as follows:. Preparation of the voting system database, ballot images, and audio ballots for the 77 counties would cost approximately $84,700.00;. On-site county techncian support in each of the 77 counties, along with four regional managers to supervise and support these techncians, would cost approximately $421,000.00;. Providing 77 county rovers for precinct support on election day, along with three special teams with back-up equipment, would cost approximately $86,960.00;. County incured expenses for printing of paper ballots for absentee and affdavit balloting would cost approximately $57,600.00; and. Supplies, including paper cansters, paper rolls, encoder batteries and seals, would cost approximately $61, Based all of the foregoing costs, the system cost estimate for the U.S. Senate Special Election in the 77 Premier touchscreen counties would be $711, if held on a separate date from any other election. It should be noted that ths estimate does not include the possible costs from the five counties that do not utilize the Premier system, those being DeSoto, Hinds, Lee, Ran, and Yalobusha Counties. Additionally, county specific costs - such as county personnel costs for election offcials, poll managers, voting machine transporters, and traing - would also have to be factored in when ariving at a total estimated election cost. 2

25 4. This figue is consistent with the cost of the most recent statewide special election - the April 17, 2001 special election for the purose of selecting the offcial flag for the State of Mississippi. House Bil 524 (2001 Regular Session) charged MSOS with the responsibility of providing unform ballots and election equipment, as well as other supporting material. MSOS entered into a contract with Election Systems & Softare for the purose of printing the ballots and otherwse supporting the election. The total cost to the state for these services was $782, In addition, the Mississippi Legislatue provided $1 milion to reimburse the counties for their expenses in holding the election. See Senate Bil 3056 (2001 Regular Session). This fud was admstered by MSOS. Counties submitted to MSOS their reimbursement requests, which amounted to $1,491, MSOS then devised a formula to make sure that reimbursements did not exceed the total sum appropriated by the Legislatue. 5. If the county reimbursement requests from the 2001 special election are added to the estimated costs for the Premier system counties, the estimated total cost (absent the system costs of the five non-premier counties) is $2,202, for the U.S. Senate Special Election held on a separate date from any other election. 6. If the U.S. Senate Special Election is held on the next regularly scheduled General Election date of November 4,2008, it is estimated that there would be little, if any, additional costs incured. 7. If the U.S. Senate Special Election is held on the date of the Presidential Preference Primaries and the federal primaries (March 1 i, 2008), it is estimated that the additional cost would be similar to a stand-alone election. The reason for this rests on two very realistic probabilities. The first is that some voters may elect to not paricipate in either of the 3

26 paries' Presidential Preference Primaries or federal primares but stil desire to vote in the U.S. Senate Special Election. Second, the political paries may choose to exclude certain voters from voting in their primares. No voter can be denied access to the U.S. Senate Special Election ballot, and the counties must adequately address these issues so that no citizen will be denied their right to vote. Therefore, the state and counties would incur the costs of database creation, printed ballots, poll books, separate polling stations, and poll workers for every precinct in Mississippi. 8. Furher, affant saith not. SO SWORN, ths _ day of Januar, ~~ SWORN TO AN,~llRSCRIED BEFORE ME, this the _ day of ~\\" n mli,4i ~.-- Januar 2008 ~ e. ~E?l.~.O; ~.q~.:,s. S~..~O ".. ~~ ~,. ~ f(v...'vj=l~... "'0 ~ : -S s i: : \A~ ~ ~".lll li' : :.. ~ :: ~~....~ æ ~ ~ ". f:-l..' Col My Commission E~~ß;;"""... ~ rill... ~\~ "!"iimm"~ ~Jí~ NOT YPUBLIC 4