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

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Let’s take a look at the old book: What the Election Code actually says

Chapter 15 of title 23 of the Mississippi Code covers election contests, and has some pretty concrete answers to some of the things folks (including me) have been saying. Just for instance, I said from memory that there was no deadline for the contest, forgetting that this had been changed in 2012; there’s a deadline now. Here’s some things from the code:

Were there is an election covering more than one county, the challenge in the first instance is with the party’s state executive committee. A challenge must be filed there, reciting the grounds for the contest. If four members of the committee demand it, the chairman shall issue “his fiat” to the appropriate counties where issues are raised, and those are to issue findings and return a report. This is in Miss. Code § 23-15-923.  If there is a deadline for filing this petition, I missed it.

I think this and other provisions in the code talking about state-wide challenges strongly imply a state-wide remedy, although the code is not explicit.

After that petition is filed and the commission either fails to meet or fails to promptly to give the relief required, the contestant can go to any of the counties challenged (big caveat here, noted below) and file a sworn petition challenging the election.  The petition must be filed within ten days after the contest was filed with the election committee.  “In no event shall a prayer for relief be filed in any court other than the appropriate circuit court as authorized in this section.”  This is Miss. Code § 23-15-927.  It seems to me to clearly state, for instance, that if the challenge does not involve votes in Hinds County, the challenge must not be filed there.

I cannot imagine how the state/county process described in Miss. Code § 23-15-923 can play out in ten days, so I’m guessing that a state challenge will proceed from the state committee not completing its job.

Miss. Code § 23-15-927 requires that the court petition may not be filed unless it bears the certificate of 2 practicing attorneys stating they have each made independent investigation of the protest and opine that the relief should be granted.   This provision has long held to be jurisdictional, as has the requirement the petition be sworn.

Here’s a quaint one the always-up-to-date Mississippi legislature left in place when it amended this specific statute in 2012:  When a petition is filed, the circuit cleark “shall immediately, by registered letter or by telegraph or telephone or personally, notify the Chief Justice of the Supreme Court” so a judge can be appointed to hear the case.  Miss. Code § 23-15-929.

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Miss. Code § 23-15-931 sets for the procedure for the trial of the contest.  It provides that if the petition alleges “wrong or irregularity” occurring only “within the state committee” the suit must be filed “in the circuit or chancery court of Hinds County.”

On this point, I am pretty confused.  If there are no irregularities within the Hinds County vote in a state election, I read Miss. Code § 23-15-927 to require the challenge be in one of the counties where there were irregularities.  The code does not imply a challenge based upon something the state committee did as opposed to challenge the votes and the voting process.  Further, Miss. Code § 23-15-927 requires that the petition be filed in the circuit court.  How did Hinds chancery get into the picture?

I’m assuming that any McDaniel challenge would have to take on Hinds County, but, if not, I’d be at an utter loss where to file this thing.  I’d ignore the possibility of Hinds Chancery (who wants to resolve that riddle if you don’t have to?) but other than that would be at sea.

 

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