I am Tom Freeland, a lawyer in Oxford, Mississippi. The picture in the header is my law office. I'm on Twitter as NMissC

Missing Posts: If you have a link to a post that's not here or are looking for posts from Summer of 2010, check this page.


Chris McDaniel has a friend, who thinks Bush v. Gore will help McDaniel win.

The Conservative Action Fund, through Thomas A. McKnight, Jr. of the law firm Wallace, Jordan, Ratliff & Brandt, LLC in Birmingham, has asked to file an amicus brief on behalf of Chris McDaniel in the Mississippi Supreme Court.

The brief states that the CAC’s mission is to protect the right of big donors to give unlimited money as a First Amendment right (well, they don’t put it exactly that way, but that’s what it means).  They took to the United States Supreme Court the case McCutcheon v. F.E.C., which overturned the aggregate contribution limits in Congressional races. The CAC seems to be the creation of McCutcheon and to have been set up just for that lawsuit.  McCutcheon is an electrical engineer in the coal industry who lives in suburban Alabama.

The motion for leave to file outlines the issues raised in the brief:

3.  This Court should not extend its ruling in Kellum v. Johnson, 115 So. 2d 147 (Miss. 1959), to Miss. Code § 23-15-923, because the Elections Clause of the U.S. Constitution, U.S. Const., art. I, § 4, cl. 1, grants exclusive power to regulate federal elections specifically to state legislatures. See Cook v. Gralike, 531 U.S. 510, 523 (2001). It thereby imposes a unique duty on courts to afford special significance to the express test of state laws that regulate federal elections, including election contests. E.g., Bush v. Gore, 531 U.S. 72, 112- 15 (2000) (Rehnquist, C.J., concurring); id. at 131 (Souter, J., dissenting); Reform Party v. Black, 885 So. 2d 303, 312 (Fla. 2004); cf. Libertarian Party of Ohio v. Blackwell, 567 F. Supp. 2d 1006, 1012 (S.D. Ohio 2008); Valenti v. Mitchel, 790 F. Supp. 551, 555 (E.D. Pa. 1992).

b. If this Court determines that a 20-day deadline does not exist for filing an election challenge under Miss. Code § 23-15-923, then it should adjudicate McDaniel’s claims in the first instance here, rather than remanding for further proceedings. Both Miss. R. App. P. 14(a) and Miss. Code § 9-3-37 permit this Court to resolve factual questions in the appeals before it, and this Court is not limited to the specific facts and issues that the lower court previously ruled on. Yazoo & Miss. Valley R.R. Co. v. Adams, 32 So. 937, 943 (Miss. 1902).

c. If this Court concludes that it would be appropriate to hold a new runoff primary election conducted in accordance with state law, but that there is insufficient time before the general election, it may order that the general election for U.S. Senate be postponed past Election Day. See 2 U.S.C. § 8; Busbee v. Smith, 549 F. Supp. 494, 519-29 (D.D.C. 1982); see also Public Citizen, Inc. v. Miller, 813 F. Supp. 821, 830 (N.D. Ga. 1993), aff’d 992 F.2d 1548 (11th Cir. 1993) (per curiam).

Basically, in the first point he suggests that the Mississippi Supreme Court is inventing the deadline without a statutory basis, and, because the rules governing elections to Congress are assigned by the Constitution to the state legislatures alone, the courts can’t… well, can’t construe them, other than “strictly.”  This amounts to trying to inflate the “there’s no deadline in the statute” into a constitutional argument.  That’s at least an interesting argument.

Question:  Can amici come up with an argument not even hinted in the brief of the party they support? I know it’s a comment thing for them to argue facts and the like in support, but can they raise a new legal issue?

The third suggests that the Supreme Court try the election contest itself!  Wooh, that would be exciting.   I’ll let folks discuss that one in comments.

The fourth asks that, if there is going to be a new primary, the general election should be delayed.

Here is the motion and proposed amicus brief.

Comments are closed.