Fifth Circuit Says that Mississippi “10 Minutes Too Late” Case is Not Moot; Tells Lower Court to Settle the Issue

On December 18, the 5th circuit issued an opinion in Moore v Hosemann, 09-60272, the case filed by Socialist Party presidential candidate Brian Moore last year, when the Mississippi Secretary of State refused to accept his presidential elector paperwork because it was submitted at 5:10 p.m. on the filing deadline. The Secretary of State rejected the paperwork because it arrived ten minutes after he had closed his office. The building itself was still open, so the paperwork had been left at the door of the Secretary of State’s office.

On March 10, 2009, the U.S. District Court had ruled against Moore, saying the case is moot. The District Court said, “It does not seem reasonably likely that other prospective presidential candidates will fail to timely file their qualifying papers before the Secretary of State’s office closes at 5 p.m. on the date of the qualifying deadline.”

But, the 5th circuit disagreed, saying, “The Secretary has made it plain that he intends to enforce the 5 p.m. deadline in future elections. He adds that the chance is very small that Moore or any other presidential candidate will miss the deadline again. That is beside the point, however. As long as the complained-of deadline is in place, future candidates in Mississippi will be subject to it and will need to conform to its demands. Thus, the effects of the deadline will persist.”

Therefore, the case goes back to the U.S. District Court, to settle the main issue. Moore’s case depends on the fact that Mississippi election laws do specify an hourly deadline for some kinds of paperwork. However, the law governing filings of presidential electors does not mention an hourly deadline, so the implication is that if the paperwork comes in on the deadline day at any hour, it is timely. The 5th circuit opinion also says that the U.S. District Court should refer the case to the Mississippi state courts, because generally, federal courts do not interpret or construe the actual meaning of state laws; that is a job for state courts. Therefore, probably a state court will eventually make the decision as to whether Moore’s paperwork should have been accepted.

The decision is by Judge Jerry Smith, a Reagan appointee, and is co-signed by Judge Edith Jones, another Reagan appointee, and Judge Harold DeMoss, a Bush, Sr. appointee. This is the first time the 5th Circuit has issued an opinion favorable to a minor party or independent candidate since 1996, when it invalidated a Texas law requiring independent candidate petitions to include the voter registration affidavit number of each petition signer. That case was Texas Independent Party v Kirk, 84 F.3d 178.


Fifth Circuit Says that Mississippi “10 Minutes Too Late” Case is Not Moot; Tells Lower Court to Settle the Issue — 28 Comments

  1. Are the MORON party hacks in the MS legislature even more evil stupid than the super-MORON party hacks in the FL legislature in 2000 (with Bush v. Gore) ???

    The MS MORONS are unable to enact an election law with deadlines in the LAW for everything — for everybody to see ???

    Do the Feds have to totally take over in the election law area due to the MORONS in the State regimes ???

    How have the States barely managed to survive since 1776 with the armies of party hack MORONS in State legislatures ???

    Reminder — having elections is one of the very few things that the State regimes MUST do — and yet many of them continue to screw up having constitutional election law systems since 1776.

    Where is that *Model Election Law* for the MORONS in the States to copy ???

  2. There are also some general laws that the SOS is relying on.

    § 7-3-3 requires SOS office to be open 8 hours per day M-F;

    § 25-1-98 requires state offices to be open from 8-5, M-F with various exceptions for holidays, essential services, etc.

    “However, the law governing filings of presidential electors does not mention an hourly deadline, so the implication is that if the paperwork comes in on the deadline day at any hour, it is timely.”

    One can as easily infer that the legislature wanted the SoS to observe regular business hours and not subject the state budget to unwarranted overtime expenses, and if they wanted the office to observe different hours than the other 250 regular days of the year they could have explicitly directed that.

  3. The “moron” is a guy who knowing that the deadline was on Day X couldn’t be bothered to make a phone call and find out what time the office closed. It’s not like they closed early just to prevent him from filing. They closed at their normal closing time, 5 PM. Do they have to stay open until midnight just for his convenience?

  4. Actually, Moore did just that; he called and was told that state law did not provide a closing time. In response to Mr. Riley, one dozen election statutes in Mississippi for various offices state a 5:00 PM deadline. But not the presidential qualification statute. Further, the state explicitly exempts absentee ballots for President from the state’s 5:00 PM deadline. Thus, the legislature has obviously envisioned “overtime,” as Mr. Riley puts it, for presidential elections. Last, the regular office hour statutes have nothing to do with elections and expressly state that they are do not override any other laws. If they did, for example, the absentee ballot law would have no effect. Thus, the ultimate question is far from clear.

  5. I also should have added that Miss. Code Section 23-15-299(4)(b) states that the secretary of state must remain open until 6:00 PM on the qualifying deadline in order to accept legislative candidates’ qualifying papers from State Executive Committees. If the labor laws, sections 7-3-3 and 25-1-98, are determinative, then this statute cannot be given any effect.

    Section 7-3-3, moreover, actually does not provide any times at all. It simply says that the secretary of state shall keep his office in Jackson and remain open Monday through Friday for “8 hours each day.” It also requires that he take care of the furniture.

    Section 25-1-98 does not apply specifically to the secretary of state. Rather, it simply states that “all state offices” shall “be open … from 8:00 am until 5:00 pm,” but adds the caveat that these times are “in addition to any other times required by statute ….” It further provides that “the provisions of this section shall not be construed to limit the hours of operation of any agency or to abrogate any action taken during hours other than those stated ….” Thus, by its own terms it does not establish an exclusive 8 to 5 workday. 8 to 5 is the minimum, and is “in addition to any other times required by statute.” And the 8 to 5 minimum does not “limit the hours of operation of any agency ….”

    What all this does is point to an ambiguity in Mississippi law, one the Fifth Circuit clearly recognized. That is why it wants a state court to address the question.

  6. Mark-OK, those facts may be relevant. However, it’s still odd that a candidate would wait until 5:10 on the last day to file. If it were me, and I were serious about running, I would have gotten there by 3 at the latest. Just to be safe.

    It’s a bit like the people who wait until 11:45 PM on April 15th to file their taxes. If the Post Office clock reads different from theirs and it gets postmarked on the 16th, well, my sympathies are limited. They could have filed at 5 PM (or a day before for that matter) and saved everyone the trouble.

  7. It’s human nature that presidential elector paperwork, or presidential candidate paperwork, frequently doesn’t get done until the last minute. Democrats and Republicans in 1988 were both late in Indiana. Democrats and Republicans were both late in 2008 in Texas. Republicans were late in Louisiana in 2008. Democrats were late in Iowa in 1968. Libertarians were late in Arizona in 1996, and the Secretary of State tried to keep Harry Browne off, but a court put him on. Every single time a major party has been late, elections officials have excused the error.

  8. Asking ANY bureaucrat about anything — even the time of day is a waste of time and effort.

    WHATEVER the bureaucrat says or does not say is legally meaningless.

    The law is the law — which everybody allegedly knows 24/7 (i.e. all candidates and all bureaucrats) — one more fiction of the party hack Supremes.

    What genius State regime has the longest or shortest election law covering ALL possibilities and is *perfectly clear* ???

    Nonstop HAVAs (Help American Vote Acts) needed from the Feds to totally wipe out State election laws ???

    See the Fed 2002 HAVA dealing especially with the super MORONS in the Florida regime — NO definition of a LEGAL vote in Florida in 2000 with the various election systems — esp. the now DEAD infamous punch card ballots – with hanging chads, pregnant chads, dimpled chads, etc. etc.

    The ENTIRE election process is a YES/NO FACT at each step — too difficult for the party hacks in State legislatures and election bureaucrats to understand — since the first election in England in the Dark Age.

  9. Richard-I wouldn’t excuse major parties either. In the law, deadlines are absolute. Miss the deadline to file a lawsuit or an appeal and it won’t be heard, regardless of how good the case is. Secretaries of State should clearly post the deadline time and anyone who misses it, major, minor or independent should be out.

  10. Actually, courts do have authority to excuse late filings of legal documents, and they frequently do so.

    Super-strictness on deadlines is an assault on the voters who wanted to vote for the candidate who missed the deadline. It isn’t just the candidates who have interests; it’s the voters. In theory someone who is left off the ballot can still be a write-in candidate in almost all states, but that in turn not only hurts voters, but it hurts election administrators. It costs a lot more taxpayer dollars to count write-ins than to count votes for ballot-listed candidates.

  11. #10 14th Amdt, Sec. 2 is almost dead but still the alleged Supreme law in the U.S.A. — regardless of MORON judges.

    How bad has handwriting become since 1868 ???

    Answer – REALLY bad — especially with E-mail and the Internet bill payments — NOT even signing checks any more for many folks.

    How many rigged or non-rigged E-voting systems permit typing in of write-in names on ballots ???

    How many billions of credit card items each work day — with super scribbled signatures ???

    Where is the 100 percent secure code stuff for electronic signing of ALL ballot access petitions — even via the Internet — or at least at local party/food stores, banks, bars, etc. ???

    NO hoards of Asians needed in the circulation process.

  12. Bob Barr’s 2008 Texas lawsuit was filed with the Texas Supreme Court, which refused to hear the case.

  13. #4 If Mr Hosemann failed to maintain regular office hours dictated by the legislature, or expended unappropriated funds for overtime, he could be subject to impeachment and removal from office.

    § 23-15-637 in general requires mail absentee ballots to be received by 5 pm the day before the election, and absentee ballots returned in person even earlier.

    § 23-15-731 pertains to presidential absentee ballots and permits ballots received at the registrars office by the closing time of polls on election day to be counted. Since the legislature has provided for 100s of branch voting locations to operate until at least 7 pm, this is not outside regular hours for that particular day. So though the legislature has set a later (than 5 pm) deadline it is the same as that for voters to appear at the polling location on election day.

    23-15-299(4)(b) provides for the SOS to stay open on a filing deadline date to receive transmittal from the parties (who receive filings from the candidates). It further goes on to say that failure for the SOS to receive the transmittal by 6 PM will not void the candidate filing; but failure by the candidate to file with the 5 pm deadline will keep the candidate off the ballot (eg candidate shows up at party HQ at 5:30 PM; and the party passes it on to the SOS by 6:00 PM is no good.

    § 23-15-731 and 23-15-299(4)(b) simply illustrate that the legislature knows how to set exceptional deadlines, and it should be presumed that if they did not specify one, they saw no reason to have one, and they considered the regular business hours of the SOS to apply.

    At best what will be accomplished is that the legislature will pass a bill setting the presidential deadline to 5:00 PM, and also that in case of any election deadline that is not explicitly specified shall be 5:00 PM on the specified day (I assume they already have similar language for handling holidays and weekends).

  14. #7 Texas had conflicting statutes that the Texas parties could not comply with.

    If they wanted to have a presidential candidate on the ballot, they were required to participate in the national party nominating process. But if they waited for the national convention to make its nomination, they could not meet the filing deadline.

    There is a difference between not complying with a statute, and not being able to.

    The legislature in 2009 recognized the conflict and moved the deadline later. It had originally been moved earlier in order to provide time to send overseas absentee ballots including to military, 45 days before the election. They found that it didn’t have to be quite so early and shifted it a few days later.

  15. No, the only possible appeal would have been to the U.S. Supreme Court, which would have been very expensive, since briefs must be printed. And there was no time.

  16. #10 Richard Winger-I agree that the voters should have the widest possible choice of candidates. Absolutely. But ballots have to be printed at some point prior to election day, so there has to be a deadline. And since that is the case, I fail to inderstand why exactly a candidate who can dedicate months to campaigning can’t make sure he delivers the papers to the required place by a comforatble margin within normal business hours.

    By the way, voters are subject to deadlines also. If the polls close at 8 PM and they show up at 8:10 they will be turned away.

  17. #18 Is a voter who shows up at such 8:10 PM a MORON ???

    Oregon survives with ALL mail ballots — with hopefully not ANY moron postal snails holding back the ballots.

    How many MORON voters in Oregon fail to mail their ballots by the snail mail deadline ???

  18. #19 A moron, son? No, perhaps they have a job (boy I wish I could say that about you). I would be happy to hold an election over a week if people want, to have early voting or mail voting or E-voting. But whatever you do, at SOME point the process has to end and the winner has to be seated, so you have to have deadlines. If you do, they have to be respected by voters and by candidates.

  19. If Mississippi law were so clear–that is, the deadline was clearly 5:00 p.m.–one suspects that the Fifth Circuit would have affirmed the District Court on that point. The District Court, after all, found that Mississippi law provided for a 5:00 p.m. deadline. Because the Fifth Circuit reversed on this point, and urged the District Court to seek advice from the state courts, it is safe to say that the Fifth Circuit agreed with Moore that Mississippi’s deadline is ambiguous. If the Mississippi Legislature changes the deadline to clearly state 5:00 p.m., then Moore will have achieved at least one objective–forcing Mississippi to clearly state its deadline. Even then, Moore can still win a more important point in federal court; that is, state agents do not have the constitutional authority to establish deadlines for presidential elections under Article II.

  20. #21 Alternatively, the Court of Appeals simply didn’t like the federal courts meddling in a matter that is strictly a State matter under Article II.

    Incidentally, all instances of a 5 pm deadline that are cited in footnote 4 apply to multiple agents, where the State would want a consistent time applied statewide, or where different agents may have different regular operating hours. There is no need in the case of presidential filings where there is only a single recipient, and the State has already provided for regular hours for the Secretary of State elsewhere.

    § 23-15-299(3) applies to the political parties. It would not be expected for the legislature to set operating hours for political parties. Does the NLP even have any furniture to take care of?

    § 23-15-359(3) shouldn’t be isolated from § 23-15-359(4) given that one applies to multi-county districts and the other to single-county districts.

    § 23-15-807(e) refers to the Secretary of State in the role of setting FAX standards. The recipients of the actual campaign finance (by 5 pm) are given elsewhere.

    § 23-15-309(1) and § 23-15-361(1) are for municipal elections, where filings are with municipal clerks.

    § 23-15-637 and § 23-15-721(3) are for receipt of absentee ballots at multiple registrar offices.

  21. In response to Demo Rep’s Mom comments on our being late: We had contracted with professional petitioners in Louisiana earlier in the week to collect pre-arranged elector forms in the state of Mississippi; but, the professionals called around noon of the day of the 5 PM deadline indicating they were not going to be able to make it to the state of Mississippi to collect the petitions from our targeted MS volunteer electors. Subsequently, our campaign spent the entire afternoon contacting and contracting taxi services to travel to the disparate suburban and citywide locations to pick up and return the signed elector documents to the state elections office by 5 PM of the same day. The campaign’s ten-minute “tardiness” arrival of its elector petitions, by several taxi’s, was a commendable effort and achievement under such trying and costly conditions.

    In response to Steve Rankin: Our campaign worked the phones, e-mails and surface mail for over a month in order to eventually gain the nomination of the NLP.

  22. #24: I sent the name and address of the Mississippi NLP chairman to Darcy Richardson at Darcy’s request.

    I read a post here at BAN that the NLP nominated you by conference call.

    I did not mean to minimize the efforts of your campaign.

  23. Steve Rankin was a great help in tracking down the NLP chairperson in Mississippi. It took some effort to convince the party to nominate Brian, but we wouldn’t have been able to obtain the NLP’s nomination without Steve’s timely assistance in the first place.

  24. Obviously, regulating presidential elections under Article II is not simply a state matter. There are several Supreme Court cases that discuss the problem; if the Fifth Circuit had not wanted the federal court “meddling” it would have affirmed the District Court and dismissed. That it ordered Pullman abstention means that it wants the federal court to remain involved. Coming from the Fifth Circuit–one of the most states’ rights courts in the country–this is a profound victory.

    Of course there are lots of irrelevant technical distinctions between Mississippi’s many election laws. The only relevant point is temporal. Moore’s perusal of state law proves that 5:00 PM is not an absolute. It is a minimum–which is expressly recognized by the Mississippi legislature in the labor law that establishes these minimum office hours.

  25. Doesn’t the 5th circuit’s decision mean that they didn’t like the federal court interpreting Mississippi law? Did Moore seek a remedy in the Mississippi courts? Couldn’t he have sought Congress not to count Mississippi’s electoral votes as being irregular?

    By “minimum” don’t you mean “sufficient”?

    All the specific deadline times in the election code that were cited apply to a number of different agents throughout the state, where it would be necessary to impose consistency. The one exception that applies solely to the SOS is for receipt of primary filings. But in that case it is set in conjunction with a deadline imposed on the political parties.

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