BILLIE FAYE KEYES; JOSHUA ALLEN; COURTNEY RENA FORTUNE; KARLI FORD MATTHEWS; SHELTON S. MATTHEWS, Plaintiffs - Appellees
PHILIP GUNN; MARK BAKER; RICHARD BENNETT; CHARLES JIM BECKETT; BILL DENNY; THE MISSISSIPPI HOUSE OF REPRESENTATIVES, Defendants - Appellants
from the United States District Court for the Southern
District of Mississippi
STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.
GRADY JOLLY, CIRCUIT JUDGE:
appeal arises from an election contest in Smith County,
Mississippi, which challenges the vote for a state
legislative seat for District 79 in the Mississippi House of
Representatives. The election resulted in a tie vote: 4, 589
votes for each of the two candidates. Under established state
procedures, the tie vote was resolved by drawing straws, and
the winner took his seat. But not so fast. The loser of the
straw-drawing contest had filed an election contest before
the Mississippi House of Representatives. In accordance with
the established rules, House Speaker Philip Gunn appointed a
special committee to hear evidence on the election challenge.
After the election-contest hearing, the special committee and
the House dispossessed the winner of the seat he had won in
the straw-drawing contest and seated the loser, but only
after disqualifying five affidavit ballots that had
previously been accepted by the Smith County election
commissioners. This turn of events meant that the election
had not resulted in a tie vote after all.
voters, who alleged they had been disqualified, then sued the
Mississippi House of Representatives, House Speaker Gunn, and
four of the five members of the special committee, for
violating their rights under the Equal Protection Clause of
the Fourteenth Amendment of the United States Constitution by
rejecting their affidavit ballots and thus depriving them of
their constitutional right to vote.
we conclude that this appeal presents a state election
contest for a legislative seat, we lack subject matter
jurisdiction. We therefore dismiss the appeal.
November 3, 2015, Mississippi held a general election, which
included District 79's legislative seat in the
Mississippi House of Representatives. District 79 includes
all of Smith County, Mississippi.
Smith County, thirty people had voted by affidavit ballot.
Smith County's election commissioners "duly
investigated" all thirty and found that only nine of the
thirty were qualified to vote. The official vote count by
Smith County officials declared the election a tie between
the incumbent Democrat candidate, Blaine "Bo"
Eaton, and the Republican candidate, Mark K. Tullos. The
result was "duly certified" to the Secretary of
State of the State of Mississippi, who tabulated the result
and submitted it to the legislative branch.
week later, in accordance with Mississippi law, and in the
presence of the Governor and the Secretary of State of
Mississippi, Mr. Eaton drew the longer of two straws and was
thus declared the winner. See Miss. Code §
23-15-605. Mr. Eaton was later sworn in and took his seat in
the House when the Mississippi Legislature convened in
before drawing straws, however, Mr. Tullos had filed an
election contest in the Mississippi House of Representatives.
In accordance with Section 38 of the Mississippi
Constitution, House Speaker Philip Gunn appointed a
five-member special committee to consider the election
contest. See Miss. Const. art. 4, § 38
("Each house shall elect its own officers, and shall
judge of the qualifications, return and election of its own
members."). That special committee included
Representatives Mark Baker, Richard Bennett, Charles Jim
Beckett, and Bill Denny, who are defendants in this case.
hearings and a 4-1 vote, the special committee adopted a
resolution recommending that Mr. Tullos be seated. The
resolution stated that the special committee had disqualified
five of the nine affidavit ballots that previously had been
approved and accepted by the Smith County election
commissioners and the Secretary of State. The special
committee did not say which five of the nine were
disqualified, but its resolution stated that at least one
reason for discarding them had been that the five voters were
incorrectly counted by Smith County and the Secretary of
State, because these voters had failed to make a timely
written request to transfer their voter registration upon
moving to a different voting precinct. The House agreed
with the special committee, voting 67-49 to unseat Mr. Eaton
and declare Mr. Tullos the winner of the election.
five Smith County voters sued Speaker Gunn, four of the five
members of the special committee,  and the Mississippi House of
Representatives itself, under 42 U.S.C. § 1983, alleging
that the defendants had deprived them of their right to vote
and had violated their rights under the Equal Protection
Clause of the Fourteenth Amendment. The five voters- Billie
Faye Keyes, Joshua Allen, Courtney Rena Fortune, Karli Ford
Matthews, and Shelton S. Matthews-allege that they are among
the nine affidavit-ballot voters whose ballots were approved
by the Smith County election commissioners and the Secretary
of State, and that they "believe" their
affidavit-ballots were among the five later rejected by the
special committee and the House. Three of the five
"suspect" that they were among those whose ballots
were excluded for failure to move their registration to their
new precincts. All five plaintiffs state that they voted for
their complaint, the plaintiffs stated that they do not seek
money damages, but "only such equitable and prospective
remedy, including declaratory or injunctive relief, as the
Court deems appropriate to redress the violation of the
federal constitutional rights of the Plaintiffs to equal
protection of the law." Specifically, the plaintiffs
requested "that the Court find that the actions of the
Defendants in casting out affidavit ballots which these
Plaintiffs and others lawfully cast . . . be found in
violation of the Equal Protection Clause[;] that [their]
votes be counted[;] that the [result of the straw-drawing] be
recognized and validated by this Court and that [Mr.
Eaton's] position in the Mississippi House of
Representatives be restored unto him; that the Court declare
the action of the Special Committee to be in violation of the
Equal Protection Clause; and that the Court award reasonable
proceedings before the district court, the defendants moved
to dismiss on various grounds, including legislative
immunity, qualified immunity, Eleventh Amendment immunity,
lack of subject matter jurisdiction under 28 U.S.C. §
1344, lack of Article III standing, and failure to state a
claim. The district court rejected each of the defenses.
Finding that it had jurisdiction to consider the
plaintiffs' equal-protection claims under 42 U.S.C.
§ 1983, the district court denied the defendants'