Case 3:08-cv-00567-TSL-JCS Document 1 Filed 09/12/08 Page 1 of 9

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
j'a.cksOh b hr ioS iOY)
JERRY YOUNG and CHRISTY COLLEY

Plaintiffs,

v.

NCOIV. I~Lk!CDTJlP5NGV7r)7f... .II,-rSL~Jl5

DELBERT HOSEMANN, in his official capacity as the Secretary of State of Mississippi; KRISTIN BUSE, DEBBY McCAFFERTY, JOHN M. WAGES, HARRY GRAYSON, Jr., and JOHN H. EDWARDS, in their official capacities as Election Commissioners of Lee County; and VIVIAN BURKLEY, JULIUS HARRIS,
'. JIMMY HERRON, BONNIE G. LAND, and
RONALD McMINN, in their official capacities as Election Commissioners in Panola County,

SOUTHERN DISTRICT OF MISSISSIPPI
F I LED

SEP 1 2 2008

J. T NOBLIN, CLERK

BY

DEPUTY

Defendants.

COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF INTRODUCTION
1. Plaintiffs, who have felony convictions, bring this civil action under federal and state law to remedy Defendants' arbitrary and unconstitutional deprivations of their fundamental right to vote in federal elections. Specifically, Plaintiffs allege that Article 12, Section 241 of the Mississippi Constitution explicitly allows for individuals who have been convicted of a crime to vote for President and Vice President of the United States. Plaintiffs assert that they meet all of the qualifications for an elector in the State of Mississippi and, despite their felony convictions, retain the right to vote for President and Vice President. Defendants' disfranchisement of Plaintiffs violates Article 12, Section 241 of the Mississippi Constitution, the equal protection clause of the

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Fourteenth Amendment of the United States Constitution, and the National Voter Registration Act (42 U.S.C. §§ 1973gg - 1973gg-10). Plaintiffs seek declaratory and injunctive relief that will restore their right to vote as guaranteed by state and federal law.
JURISDICTION AND VENUE 2. This Court has subject matter jurisdiction over this action under 28 U.S.C. §§ 1331, 1343(a)(3) and (4), and 42 U.S.C. § 1983. This Court may exercise ancillary jurisdiction under 28 U.S.C. § 1367(a) to hear claims under the Constitution and laws of Mississippi. This Court has jurisdiction to grant both declaratory and injunctive relief under 28 U.S.C. §§ 2201 and 2202. 3. Venue is proper in this Court under 28 U.S.C. § 1391(b)(1) because Defendant Hoseman is situated within this judicial district.
PLAINTIFFS 4. Plaintiff Jerry Young is a citizen of the United States and a resident of Lee County, Mississippi. He was convicted of a felony within the State of Mississippi. 5. Plaintiff Christy Colley is a citizen of the United States and a resident of Panola County, Mississippi. She was convicted of a felony within the State of Mississippi.
DEFENDANTS 6. Delbert Hosemann is the Secretary of State of Mississippi ("Secretary of State") and, as such, is the chief election officer for the State. Miss. Code Ann. § 23-15211.1. He is sued in his official capacity only for actions that he took under color of state law.
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7. Defendants Buse, McCafferty, Wages, Grayson, and Edwards are the Election Commissioners for Lee County and are responsible for the conduct of elections in Lee County. Miss. Code Ann. § 23-15-485. They are sued in their official capacities only for actions that they took under color of state law.
8. Defendants Burkley, Harris, Herron, Land, and McMinn are the Election Commissioners for Panola County and are responsible for the conduct of elections in Panola County. Miss. Code Ann. § 23-15-485. They are sued in their official capacities only for actions that they took under color of state law.
FACTUAL ALLEGATIONS 9. The State of Mississippi enacted its first constitution in 1817 and, since then, there have been three state constitutions: the Constitution of 1832, the Constitution of 1868, and the present-day Constitution of 1890. 10. The 1817 constitution provided that: "Laws shall be made to exclude from office and from suffrage those who shall thereafter be convicted of bribery, perjury, forgery, or other high crimes or misdemeanors." Miss. Const. art. VI, § 5 (1817). The constitutions of 1832 and 1868 retained all of the disqualifying crimes of the 1817 constitution. Miss. Const. art. VII, § 4 (1832); Miss. Const. art. XII, § 2 (1868). 11. The 1890 constitution expanded the list of disfranchising crimes, but allowed individuals convicted of the enumerated offenses to vote for President and Vice President. Miss. Const. art. 12, § 241 (1890). The exact language is as follows:
Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is
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duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, peIjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefore and is otherwise a qualified elector. (emphasis added).
12. Section 23-15-11 of the Mississippi Code sets forth the qualifications for
voters:
Every inhabitant of this state, except idiots and insane persons, who is a citizen ofthe United States of America, eighteen (18) years old and upwards, who has resided in this state for thirty (30) days and for thirty (30) days in the county in which he offers to
vote, and for thirty (30) days * * * in the incorporated city or town
in which he offers to vote, and who shall have been duly registered as an elector pursuant to Section 23-15-33, and who has never been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, shall be a qualified elector in and for the county, municipality and voting precinct of his residence, and shall be entitled to vote at any election.
13. A person with a criminal conviction is otherwise eligible to vote in
presidential and vice presidential elections ifhe or she is a citizen of the United States, is
at least eighteen (18) years old, meets the residency requirements, and has not been
adjudicated "non compos mentis." Miss. Code Ann. § 23-15-11; Miss. Const. art. 12,
§ 241.
14. Mississippi's voter registration application form does not allow
individuals to register only for presidential and vice-presidential federal elections. See
Ex. A.
15. Plaintiff Jerry Young was convicted of armed robbery on or about May
1980.
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16. On August 26, 2008, Plaintiff Young attempted to register to vote in Lee County for the November 4, 2008 presidential election, but was told that he was ineligible to register and would first have to get his voting rights restored. See Ex. B.
17. Plaintiff Young wishes to vote in upcoming elections, but is unable to do so because Mississippi's voter registration application form does not allow him to register only for presidential and vice-presidential federal elections.
18. Plaintiff Christy Colley was convicted of embezzlement on or about January 1999.
19. On August 26, 2008, Plaintiff Colley attempted to register to vote in Panola County for the November 4,2008 presidential election, but was told that she was ineligible to register and would first have to get her voting rights restored. See Ex. C.
20. Plaintiff Colley wishes to vote in upcoming elections, but is unable to do so because Mississippi's voter registration application form does not allow her to register only for presidential and vice-presidential federal elections.
21. Plaintiffs are without an adequate remedy at law and will suffer irreparable harm unless Defendants' actions of failing and/or refusing to allow Plaintiffs to register and vote in presidential and vice-presidential federal elections are enjoined.
FIRST CAUSE OF ACTION VIOLATION OF STATE CONSTITUTION 22. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein.
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23. Article 12, Section 241 of the Mississippi Constitution secures the rights of individuals convicted of crimes to vote for President and Vice President of the United States.
24. Despite their felony convictions, Plaintiffs Young and Colley retain the right to vote for President and Vice President of the United States.
25. Defendants' actions of failing and/or refusing to allow Plaintiffs to register and vote for President and Vice President violate Article 12, Section 241 of the Mississippi Constitution.
SECOND CAUSE OF ACTION VIOLATION OF THE EQUAL PROTECTIONCLAUSE OF THE FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION 26. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 27. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws." 28. Although Plaintiffs Young and Colley have felony convictions, they remain eligible to vote for President and Vice President of the United States. 29. Defendants' action of failing and/or refusing to allow Plaintiffs to register and vote for President and Vice President treats them differently from other qualified voters and violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
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THIRD CAUSE OF ACTION VIOLATION OF THE NATIONAL VOTER REGISTRATION ACT 30. Plaintiffs incorporate by reference all preceding paragraphs as if fully set forth herein. 31. The National Voter Registration Act (the ''NVRA'') requires each state to establish procedures to increase the number of eligible citizens who register to vote in federal elections. 42 U.S.C. § I 973gg(b). 32. The Act also mandates that states maintain accurate and current voter registration rolls through the use of programs and activities that are uniform and nondiscriminatory. 42 U.S.C. § 1973gg-6(b)(I). 33. The NVRA further requires states to include a voter registration application form for federal elections as part of a state driver's license application. 42 U.S.c. § 1973gg-3. 34. Mississippi's driver's license application form does not include a voter registration form only for federal elections. 35. The "State Instructions" part of the federal voter registration application form provides that a person is eligible to vote if they have not been convicted of one of the ten crimes enumerated in Section 241 of the Mississippi Constitution and that the form serves "as registration for voting for all state and federal offices." Ex. D (emphasis added). 36. Defendants were put on notice on October 6, 2006, that they were violating the NVRA when they were sued in the case Strickland v. Clark, Civil Action No. G2006-1753 SI2 (Ch. ct. Miss. Oct. 6,2006).
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37. Although Plaintiffs Young and Colley have felony convictions, they remain eligible to vote for President and Vice President of the United States.
38. Defendants' actions of failing and/or refusing to allow Plaintiffs to register and vote in presidential and vice-presidential federal elections violate the NVRA.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully ask this Court to: (1) Declare that individuals who have been convicted of crimes retain the right to vote for President and Vice President of the United States; (2) Declare that Defendants' actions of failing and/or refusing to allow individuals who have been convicted of a crime to register and vote for President and Vice President of the United States violate Article 12, Section 241 of the Mississippi Constitution, the Equal Protection Clause of the Fourteenth Amendment, and the National Voter Registration Act; (3) Enter a preliminary and permanent injunction forbidding Defendants, their agents and representatives from discouraging, interfering with, or preventing individuals who have been convicted of a crime from registering to vote and voting for President and Vice President, and directing Defendants to instruct the various persons responsible for supervising voter registration in Mississippi's counties to accept voter registration application forms from such individuals; (4) Order Defendants to amend the voter registration application form to allow individuals convicted of crimes to register to vote for President and Vice President;
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(5) Award Plaintiffs their expenses, costs, fees, and other disbursements

associated with the filing and maintenance of this action, including reasonable attorneys'

fees pursuant to 42 U.S.C. §§ 1988 and 19731(e);

(6) Exercise continuing jurisdiction over this action during the enforcement of

its judgment; and

(7) Award such other equitable relief as this Court deems just and proper.

Respect~!l.. __ •.4-

By: s

L. ~""""l..JV"'"

Kristy L. Bennett

Miss. Bar No. 99525

AMERICAN CIVIL LIBERTIES UNION

OF MISSISSIPPI

P.O. Box 2242

Jackson, MS 39225-2242

753 N. Congress

Jackson, MS 39202

Tel: (601) 354-3408

Fax: (601) 355-6465

kbennett@msaclu.org

Laughlin McDonald* Neil Bradley* Nancy G. Abudu AMERICAN CIVIL LIBERTIES UNION
VOTING RIGHTS PROJECT 2600 Marquis One Tower 245 Peachtree Center Ave. NE Atlanta, GA 30303-1227 Tel: (404) 523-2721 Fax: (404) 653-0331 Imcdonald@ac1u.org nbradely@aclu.org nabudu@ac1u.org *Pro Hac Vice Motions to Follow

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 Case 3:08-cv-00567-TSL-JCS Document 3 Filed 09/12/08 Page 1 of 13

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI

JERRY YOUNG and CHRISTY COLLEY
Plaintiffs,
v.
DELBERT HOSEMANN, in his official capacity as the Secretary of State of Mississippi; KRISTIN BUSE, DEBBY McCAFFERTY, JOHN M. WAGES, HARRY GRAYSON, Jr., and JOHN H. EDWARDS, in their official capacities as Election Commissioners of Lee County; and VIVIAN BURKLEY, JULIUS HARRIS, JIMMY HERRON, BONNIE G. LAND, and RONALD McMINN, in their official capacities as Election Commissioners in Panola County,
Defendants.

CIVIL ACTION
No.2;ctS C-\l ~l-\~L-'&L~

PLAINTIFFS' MEMORANDUM OF LAW IN SUPPORT OF THEIR MOTION FOR A PRELIMINARY INJUNCTION COME NOW Plaintiffs Jerry Young and Christy Colley, by and through counsel, to file this Memorandum of Law in support of their Motion for a Preliminary Injunction. In support of their Motion, Plaintiffs show this Court as follows: I. SUMMARY OF THE ARGUMENT Plaintiffs filed the instant lawsuit on September 12, 2008 challenging Defendants' denial of their right to register to vote in presidential and vice-presidential federal elections because of their criminal convictions. Article 12, § 241 of the Mississippi Constitution explicitly states that a person convicted of one of the ten crimes enumerated in the provision is "qualified to vote for President and Vice President of the United States

Case 3:08-cv-00567-TSL-JCS Document 3 Filed 09/12/08 Page 2 of 13
if he meets the requirements established by Congress therefore and is otherwise a qualified elector." However, Mississippi's voter registration application form does not allow Plaintiffs to register to vote only in presidential and vice-presidential elections.
Plaintiffs attempted to join a similar lawsuit filed on October 6, 2006, in the Chancery Court of Hinds County, Mississippi, in which the plaintiffs in that case argued that the defendants were violating their right to register and vote only in the elections for president and vice president. Although Plaintiffs filed their motion to join that suit on Febmary 11, 2008, the state court has not mled on their motion. On September 12, 2008, Plaintiffs moved to withdraw their claims related to voting in the presidential and vice presidential elections from the state case. See Ex. A.
Plaintiffs, who have felony convictions, are citizens ofthe United States, residents of Mississippi, and meet the age and other residency requirements set forth in Miss. Const. art. 12, § 241 and Miss. Code Ann. § 23-15-11. Plaintiffs Young and Colley attempted to register to vote in Lee County and Panola County, respectively, for presidential and vice presidential elections, but were told that they were not eligible to register and vote and would first have to get their voting rights restored. See Exs. Band C. Plaintiffs maintain that Defendants' denial of their right to register and vote in presidential elections violates their rights under Miss. Const. art. 12, § 241, the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and the National Voter Registration Act (42 U.S.C. § 1973gg).
For these reasons, Plaintiffs respectfully request that this Court grant their motion for a preliminary injunction so that they may register for and vote in the November 4, 2008, general presidential and vice-presidential election.
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II. LEGAL STANDARD A cOUli may grant a motion for a preliminary injunction if the plaintiff shows all
of the following four factors: (1) a substantial likelihood of success on the merits of the case; (2) a substantial t1n'eat of irreparable injUly if the preliminary injunction is denied; (3) the benefit to the plaintiff in obtaining the injunction outweighs the harm the defendants will experience; and (4) granting the preliminary injunction will not disserve the public interest. Rundus v. Chertoff, 2007 WL 1748075 *3 (5th Cir. June 18, 2007); Walgreen Co. v. Hood, 275 F.3d 475, 477 (5th Cir. 2001). The moving party bears the burden of proof in a motion for injunctive relief. Okpalobi v. Foster, 190 F.3d 337, 342 (5th Cir. 1999); Lichtennan v. Pickwick Pines Marina, Inc., 2007 WL 4287586 *3 (N.D. Miss. Dec. 6, 2007). Injunctive relief is preventive in nature and it is not necessary to wait for the actual OCCUITence of the injury. See Lichterman, 2007 WL 4287586 at *7-8 (granting plaintiffs' motion for preliminary injunction in part and ordering state agency to investigate environmental consequences of proposed development). III. ARGUMENT
A. Plaintiffs Have a Substantial Likelihood of Success on the Merits of Their Complaint.
Article 12, § 241 of the Mississippi Constitution expressly states that a person convicted of one of the ten enumerated crimes loses the right to vote, "except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefore and is otherwise a qualified elector." Despite their felony convictions, Plaintiffs retain the right to vote under Mississippi law because Congress has not passed any laws denying the right of people with felony convictions to vote in federal elections and Plaintiffs are otherwise qualified to vote in
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Mississippi. Given that Mississippi's voter registration application fonn does not allow
Plaintiffs to register and vote only for president and vice-president, Defendants are
violating Atiicle 12, § 241, Plaintiffs' right to equal protection under the law, and the
NVRA.
1. Article 12, § 241 of the Mississippi Constitution Grants Plaintiffs the Right to Vote for President and Vice President of the United States.
Mississippi's felon disfranchisement provision dates back to the state's first
constitution of 1817. At that time, the legislature denied voting rights to people
convicted of bribery, perjury, forgery, or other high crimes or misdemeanors, and that
clause remained in effect until 1890. Miss. Const. art. VI, § 5 (1817); Miss. Const. mi.
VII, § 4 (1832); Miss. Const. art. XII, § 2 (1868). In 1890, the legislature amended the
felon disfranchisement provision and listed ten crimes which were disqualitying offenses
for purposes of voting and inselied a new clause which allowed an individual convicted
of any ClUne to vote for president and vice president of the United States. Miss. Const.
art. 12, § 241. The exact language of Article 12, § 241 is as follows:
Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefore and is otherwise a qualified elector." Id. (emphasis added).
The first detennination in constlUing a statute is whether it is ambiguous. Nostrad
v. Little, 362 U.S. 474, 477 (1960). "Where the language of a statute is plain,
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unambiguous, and well understood according to its natural and ordinary sense and meaning, the statute itself furnishes a rule of construction beyond which the cOUli cannot go." rd. A court may not apply the rules of statutory construction in a manner which will create ambiguity. Jones v. City of Palestine, 2008 WL 152569 (5th Cir. Jan. 16,2008). See also In re Rippstein, 2006 WL 1888956 *2-3 (5th Cir. July 10, 2006) (rulings that Texas law regarding liens was unambiguous and, therefore, did not require issue to be certified to state supreme court).
Neither Mississippi's voter registration application form nor the driver's license application form allows a citizen to register to vote only for president and vice president. See Ex. D. Instead, a person completing either fonn is considered to be registering to vote for state and all federal elections. The forms also list twenty-one (21) crimes that are disfranchising and warns potential applicants that "[t]he penalty for conviction of false registration is a felony punishable by a fine of not more than Five (5) Thousand Dollars (5,000) or imprisonment for not more than five (5) years, or both." See id. Article 12, § 241 of the Mississippi Constitution clearly provides that a person with a criminal conviction can vote in presidential and vice presidential elections. The language in the constitution is unambiguous and Defendants must comply with the law by allowing Plaintiffs to register to vote in the November 4, 2008 presidential election.
2. Defendants' refusal to allow Plaintiffs to register and vote in the November 4, 2008 election for president and vice president violates Plaintiffs' right to equal protection under the law.
The Equal Protection Clause of the Fourteenth Amendment provides that no State shall "deny to any person within its jurisdiction the equal protection of the laws." U.S. Const. amend. XIV § I. In order to prove a violation under the Equal Protection Clause,
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the moving pmiy must show that similarly situated persons were treated differently. Bryan v. City of Madison, Miss., 213 F.3d 267, 276 (5th Cir. 2000); Wheeler v. Miller, 168 F.3d 241, 252 (5th Cir. 1999). The right to vote has long been held to be a foundational element of the United States Constitution. "No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live." Wesberry v. Sanders, 376 U.S. 1, 17 (1964). Because "the right to exercise the fi'anchise in a free and unimpaired manner IS preservative of other basic civil and political rights," the Supreme Court has characterized the right to vote as a "fundamental political right." Revnolds v. Sims, 377 U.S. 533, 562 (1964) (citing Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886». Its fundamental role in the functioning of America's democratic institutions means that "[a]ny unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative government." Kramer v. Union Free Sch. No. 15,395 U.S. 621, 626 (1969).
The Supreme Court has established that the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the state has adopted an electoral process for determining who will represent any segment of the state's population. Lubin v. Panish, 415 U.S. 709, 713 (1974) (citing Reynolds v. Sims). See also Dunn v. Blumstein, 405 U.S. 330, 336 (1972) ("this court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction").
When determining whether or not a state election law or policy violates the Equal
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Protection Clause, a court must first consider the character and magnitude of the asserted injury to the rights protected by the Fourteenth Amendment. Anderson v. Celebrezze, 460 U.S. 780, 789 (1983) (applying strict scmtiny standard in mling that an Ohio statute which required independent candidates mnning for President to file their nomination papers earlier than political patty candidates violated equal protection clause). The court then should identify and evaluate the precise interests the state puts forward to justify the burden that its law or policy imposes on a plaintiff. See id. "In passing judgment, the COUli must not only detennine the legitimacy and strength of each of those interests; it also must consider the extent to which those interests make it necessary to burden the plaintiff's lights." rd.
Once a state election law subjects equal protection rights to "severe" restrictions, the state law must be '''narrowly drawn to advance a state interest of compelling impoliance.''' Burdick v. Takushi, 504 U.S. 428, 434 (1992). For election and voting issues, Burdick raised the level of the traditional FOUlteenth Amendment analysis. Unlike other areas where some state actions may survive based on a rational basis test, under Burdick, restrictions on voters must at a minimum be both "reasonable" and "nondiscriminatory." rd. The fundamental role of elections in the functioning of America's democratic institutions means that "[a)ny unjustified discrimination in determining who may participate in political affairs or in the selection of public officials undermines the legitimacy of representative govemment." Kramer v. Union Free Sch. No. 15,395 U.S. at 626.
Pursuant to Article 12, § 241 of the Mississippi Constitution, Plaintiffs retain the right to vote in the November 4, 2008 election for president and vice president on an
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equal basis with citizens who have never been convicted of a crime. In denying Plaintiffs' voting rights, Defendants treat Plaintiffs differently than similarly situated individuals and impose a severe restriction on a fundamental right. Because Defendants' actions are not natTOwly tailored and do not serve a compelling govemmental interest, this Court should enjoin them from unconstitutionally denying Plaintiffs the right to vote.
3. Defendants' refusal to allow Plaintiffs to register and vote in the November 4, 2008 election for president and vice president violates the NVRA.
Congress enacted the NVRA in 1993 to: (1) establish procedures to increase the number of eligible citizens who register to vote in federal elections; (2) make it possible for federal, state, and local govemments to implement national voter registration in a manner that enhances the participation of eligible citizens as voters in federal elections; (3) protect the integrity of the electoral process; and (4) ensure that states maintain accurate and cunent voter registration rolls. 42 U.S.C. § 1973gg(b). In particular, states must: (1) include a voter registration application form for federal elections as part of a state driver's license application; (2) accept voter registration application fonus by mail; and (3) designate voter registration agencies, at which voter registration applications, assistance, and acceptance of applications, must be made available. Id. at 1973gg-3 to 1973gg-5. The Act further mandates that states maintain accurate and cun'ent voter registration rolls through the use of unifonu and non-discliminatory programs and activities. See id. at § 1973gg-6(b)(1). The NVRA allows states to remove from the official list of eligible voters the names of individuals who have a criminal conviction, but only as provided under state law. See id. § I973gg-6(a)(3)(B).
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The NVRA provides a private right of action for citizens affected by a state's violation of the NVRA and states that such a person "may provide written notice of the violation to the chief election official of the State involved." See id. § 1973gg-9(b)(I). If the offending party does not correct the violation within ninety (90) days of receiving notice of the breach or within twenty (20) days after receiving notice if the breach occurred within one hundred and twenty (120) days before a federal election, the aggrieved party may file a civil action against the offending party. See id. § 1973gg9(b)(2).
In Association of Community Organizations for Reform Now v. Miller, 129 F.3d 833, 838 (6th Cir. 1997), the court held that the plaintiffs' failure to provide notice prior to filing their lawsuit to enforce the NVRA did not warrant dismissal of the action. Miller involved a challenge to the Michigan govemor's executive order which prohibited state agencies from complying with the NVRA until federal funds became available. Id. at 835. The defendants argued that the suit should be dismissed because the plaintiffs had failed to give notice ofthe violation prior to filing their lawsuit. Id. at 837-38. The court of appeals rejected that argument and found that, although the individual plaintiffs had not given notice, the organizational plaintiff previously had complained about the violations and the state had made it clear that it would not comply with the NVRA. Id. at 838. The court determined, therefore, that it would have been futile for the individual plaintiffs to provide such notice when the state had already ignored earlier requests for compliance. See also National Coalition for Students with Disabilities Educ. and Legal Defense Fund v. Scales, 150 F. Supp. 2d 845, 852 (D. Md. 2001) (holding that students'
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initial application for registration services thirty days prior to an election provided the university with sufficient notice of its NVRA violations).
In the instant case, Defendants were put on notice that they were violating the NVRA when they were sued in October 2006 for the same violation. Since then, Defendants have not amended the voter registration application form or the drivers license application fonn so that people can register to vote only in federal elections for president and vice president. To the extent that Plaintiffs were required to provide Defendants with notice prior to filing the instant lawsuit, the NVRA's notice provisions have been satisfied.
As already asserted in this memorandum, Mississippi law allows anyone with a criminal conviction to vote for president and vice president of the United States. However, neither Mississippi's voter registration application fonn nor Mississippi's driver's license application form allows a person to register to vote only in presidential and vice presidential elections. The state also has failed to create and implement any procedures to increase the number of eligible citizens who have a felony conviction to register to vote for president and vice president. Finally, the state is not maintaining accurate and current voter registration rolls with respect to federal elections because many eligible citizens like Plaintiffs are being denied the right to register and vote for the presidential and vice presidential elections. Thus, Defendants are violating mandatory provisions under the NVRA. Mississippi is responsible for bearing the costs of complying with the NVRA and an injunction requiring Mississippi's compliance is proper in this case. See ACORN v. Edgar, 56 F.3d 791, 798 (7th Cir. 1995) (enjoining state officials from failing or refusing to comply with NVRA, particularly NVRA
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provision which required application for driver's license to also serve as application to register to vote in federal elections); Voting Rights Coalition v. Wilson, 60 F.3d 1411, 1415 (9th Cir. 1995) (same).
B. Plaintiffs Will Suffer Irreparable Harm If This Court Does Not Issue An Injunction Because They Will Completely Lose The Opportunity To Register And Vote In The November 2008 Election For President And Vice President Of The United States.
The right to vote is one of the most fundamental rights in our system of government. Reynolds v. Sims, 377 U.S. at 554. For that reason, the loss of the constitutionally protected right to vote "for even minimal periods of time, constitutes in'eparable injury." Elrod v. Bums, 427 U.S. 347, 373 (1976). The Mississippi voter registration deadline for the November 4, 2008 presidential and vice presidential election is October 6, 2008. Mississippi law requires that Plaintiffs register before they are allowed to vote. See Miss. Code Ann. § 23-15-11. Unless this Court grants Plaintiffs' motion, they will not be able to register to vote and will have no adequate recourse or remedy available to them for purposes ofthe upcoming November election.
C. The Benefit To Plaintiffs In Obtaining The Injunction Outweighs Any Alleged Harm Defendants Might Experience.
Courts have ruled that the deprivation of a fundamental right outweighs any threatened hann that an injunction might cause a defendant. Murphree v. Winter, 589 F. Supp. 374, 381-382 (S.D. Miss. 1984) ("the deprivation of a fundamental right constitutes in'eparable hann requiring the issuance of a preliminary injunction") (internal citations omitted). As the Supreme Court has held, the right to vote is a fundamental right because it is "preservative of all rights." Yick Wo, 118 U.S. at 370.
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The instant case involves Plaintiffs' fundamental right to vote in the November 4, 2008 election for president and vice president. The injury that Plaintiffs will suffer if they are not allowed to vote surpasses any possible inconvenience that Defendants might experience as a result of a preliminary injunction. No amount of monetary damages or other type of relief this Court may grant after the November 4, 2008 elections will remedy the fact that Plaintiffs will not be allowed to vote in the general election this fall. In order to vote, Plaintiffs must be registered by October 6, 2008 and, if not allowed to register, they will have no recourse or adequate remedy at law because the registration deadline will have passed. Thus, absent the granting of Plaintiffs' motion for a preliminary injunction, any relief that this Court grants prospectively will be insufficient to address the harm of not being allowed to vote this fall.
D. An Injunction Will Serve The Public's Interest Because A Vast Number of Mississippi Citizens Will Be Able To Vote In The November 4, 2008 Election For President And Vice President Of The United States.
Federal courts have found that "[t]he public does indeed have a strong interest in assuring that constitutional rights of citizens are respected." Cohen v. Coahoma County, Miss., 805 F. Supp. 398, 408 (N.D. Miss. 1992). Although Plaintiffs filed the instant lawsuit on their own behalf, a favorable ruling will impact thousands of Mississippi citizens who have a criminal conviction, but who remain eligible to vote in presidential and vice presidential elections. Consequently, an injunction will serve the public interest in a significant way, improve the integrity of elections, and help ensure that Defendants do not apply election laws in a discriminatory manner.
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III. CONCLUSION
For all the reasons stated above, Plaintiffs respectfully ask this Court to grant their
motion for a preliminary injunction.
Respectfully Submitted,
By: Is Kristy L. Bennett
Kristy L. Bennett Miss. Bar No. 99525 AMERICAN CIVIL LIBERTIES UNION
OF MISSISSIPPI P.O. Box 2242 Jackson, MS 39225-2242 753 N. Congress Jackson, MS 39202 Tel: (601) 354-3408 Fax: (601) 355-6465 kbennett@msac1u.org
Laughlin McDonald* Neil Bradley* NancyG. Abudu AMERICAN CIVIL LIBERTIES UNION
VOTING RIGHTS PROJECT 2600 Marquis One Tower 245 Peachtree Center Ave. NE Atlanta, GA 30303-1227 Tel: (404) 523-2721 Fax: (404) 653-0331 lmcdonald@ac1u.org nbradely@ac1u.org nabudu@ac1u.org *Pro Hac Vice Motions to Follow
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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

JERRY YOUNG and CHRISTY COLLEY

PLAINTIFFS

VS.

CIVIL ACTION NO. 3:08cv567 TSL-JCS

DELBERT HOSEMANN, in his official capacity as the Secretary of State of Mississippi; KRISTIN BUSE, DEBBY McCAFFERTY, JOHN M. WAGES, HARRY GRAYSON, JR., and JOHN H. EDWARDS, in their official capacities as Election Commissioners of Lee County; and VIVIAN BURKLEY, JULIUS HARRIS, JIMMY HERRON, BONNIE G. LAND, and RONALD McMINN, in their official capacities as Election Commissioners in Panola County

DEFENDANTS

MEMORANDUM OF AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS COMES NOW the Defendant, Secretary of State Delbert Hosemann, in his official capacity (referred to collectively as “the State” or the “State Defendants,” as the arguments herein are applicable to the election commissioners as arms of the state as asserted herein) in the above styled case and file this Memorandum of Authorities in Support of Defendant’s Motion to Dismiss, stating as follows:
BACKGROUND On September 12, 2008, Plaintiffs filed the present Complaint and a Motion for Preliminary Injunction. “Specifically, Plaintiffs allege that Article 12, Section 241 of the Mississippi Constitution explicitly allows for individuals who have been convicted of a crime to vote for President and Vice President of the United States” and that the State’s “disfranchisement

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violates . . . Section 241 . . . the equal protection clause . . . and the National Voter Registration Act.” (Compl. at ¶ 1). After briefing and a hearing, this Court denied Plaintiffs’ request for injunctive relief, finding that the “Defendants’ interpretation of Section 241 of the Mississippi Constitution is correct[.]” (Doc. no. 11, Order entered September 25, 2008). In lieu of filing an Answer, the State now moves to dismiss Plaintiffs’ Complaint.
LEGAL ARGUMENT The State presents the instant motion pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure to dismiss for lack of subject matter jurisdiction and failure to state a claim upon which relief can be granted, respectively. The State submits that it is entitled to dismissal on all counts because Plaintiffs cannot obtain any relief against it, even if all wellpleaded factual allegations in Plaintiffs’ Complaint are assumed to be true. Jones v. Greninger, 188 F.3d 322, 324 (5th Cir.1999). As discussed below, the Court has several grounds upon which to dismiss Plaintiffs’ claims. The State Defendants will show (1) that Plaintiffs fail to state a claim upon which relief can be granted because their interpretation of Section 241 is legally incorrect; (2) that this Court lacks subject matter jurisdiction; (3) that the State Defendants are entitled to the immunity from suit recognized by the Eleventh Amendment to the Constitution of the United States regarding Plaintiffs’ official capacity claims brought under both state and federal law; and (4) that the Court should abstain from hearing this matter under the Pullman abstention doctrine in the event this Court finds state law unsettled. The State Defendants will address each of these arguments in turn.
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I. All of Plaintiffs’ Claims Rely Upon a Misinterpretation of State Law. Plaintiffs rely solely upon their interpretation of state law to prove a violation of Section
241 itself, the Equal Protection Clause and the NVRA. Although couched in terms of violations of the United States Constitution and the NVRA, Plaintiffs’ claims are, in essence and in fact, merely claims for an alleged violation of state election law. Plaintiffs’ claims begin and end with Section 241 and their interpretation of that provision.
Plaintiffs are not asserting that Section 241 of the Mississippi Constitution, standing alone, is unlawful or unconstitutional. Indeed, Plaintiffs seek the protection and alleged benefit of Section 241, arguing that Section 241 actually protects the right of convicted felons to vote for President and Vice President (although the State has never applied Section 241 in this fashion). Rather, Plaintiffs argue that the State’s interpretation and application of Section 241 violates both state and federal law. Thus, Plaintiffs’ suit turns upon the accuracy of Plaintiffs’ interpretation of state law, so much so that Plaintiffs’ federal claims are dependant on this Court finding a violation of state law.
Section 241 of the Mississippi Constitution provides: Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise a qualified elector. MISS. CONST., art. XII, § 241 (emphasis added). Somehow, Plaintiffs read Section 241 to allow
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convicted felons, who would otherwise be disenfranchised, to vote for President and Vice President.1 The State disagrees.
Section 241 does not preserve the right of a disenfranchised felon to vote for President or Vice President. Section 241 prescribes five requirements for a Mississippi inhabitant to qualify as an elector: the inhabitant must (1) be a citizen of the United States of America; (2) be at least 18 years old; (3) be a resident of the state and county in which he offers to vote for one year and of the voting precinct or municipality for six months;2 (4) be registered to vote; and (5) not be convicted of a disenfranchising crime. MISS. CONST., art. XII, § 241. After setting forth these requirements, Section 241 provides that “[such a person] is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise a qualified elector. Id. (emphasis added). Plaintiffs interpret the “except that he shall be qualified to vote for President” language as an exception or exemption to the last requirement - to not be convicted of a disenfranchising crime - for elections for President and Vice President. Such an interpretation ignores the structure of Section 241, as well as its meaning.
1Both Plaintiffs are disenfranchised felons. According to the Complaint, Colley was convicted of embezzlement in 1999, and Young was convicted of armed robbery, considered “theft” under Section 241, in 1980. See Cotton v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998).
2The durational residency requirements of Section 241 were found to violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution in Graham v. Waller, 343 F. Supp. 1 (S.D. Miss. 1972), which imposed only a thirty day residency requirement in the state, county and precinct or municipality. To that extent, Section 241 was abrogated upon the enactment of Mississippi Code Section 23-15-11, providing for a thirty day residency requirement and incorporating the provisions of Section 241.
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The flaw in Plaintiffs’ reading is readily apparent when one observes the provision’s simple structure:
Every inhabitant of this state . . . who [meets the five listed requirement], is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise a qualified elector. MISS. CONST., art. XII, § 241 (emphasis added). Plaintiffs’ interpretation applies the alleged exception to only one requirement, but no structural or logical basis exists for such an application. The alleged exception is separated from all the listed requirements by a comma and the phrase “is declared to be a qualified elector.” Under Plaintiffs’ interpretation, the exception could apply to any, all or none of the requirements to be a qualified elector because there is no reason why the alleged exception should modify only the last listed requirement. Additionally, Plaintiffs would have this Court ignore the “and is otherwise a qualified elector” language of Section 241, completely reading out any meaning for the phrase. The language of Section 241, however, has meaning. It recognizes Congressional authority to regulate the voting qualifications of electors for President and Vice President, as well as the traditional and inherent authority of the states to set voter qualifications, so long as federal and state laws are not in conflict.3 Plaintiffs’ interpretation would read out of Section 241 the states’ primary authority to establish requirements to be a qualified elector in federal elections. The power to establish requirements for qualified electors for President and Vice
3In fact, the amendment in 1972 of Section 241, lowering the voting age and adding the disputed language, coincides with the ratification of the Twenty-Sixth Amendment, lowering the nation’s voting age to 18. In addition to the Twenty-Sixth Amendment, the Fourteenth, Fifteenth (race), Nineteenth (sex) and Twenty-Fourth (poll tax) Amendments all impact the qualifications of electors and recognize Congressional authority to pass appropriate legislation to enforce those Amendments.
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President is vested in the states by the federal Constitution, providing that “[e]ach State shall
appoint, in such Manner as the Legislature thereof may direct, a Number of Electors[.]” U.S.
CONST. art. II, § 1, cl. 2; see, e.g., McPherson v. Blacker, 146 U.S. 1, 35 (1892). Likewise, states
are vested with the power to set the qualifications of electors for Congressional elections. U.S.
CONST. art. I, § 2, cl. 2 (Representatives) and amend. XVII, cl. 1 (Senators); see, e.g., Katzenbach
v. Morgan, 384 U.S. 641, 647 (1966). Indeed, the constitutionally mandated balance between
state and federal authority has been readily identified by the Supreme Court:
Under the distribution of powers effected by the Constitution, the States establish qualifications for voting for state officers, and the qualifications established by the States for voting for members of the most numerous branch of the state legislature also determine who may vote for United States Representatives and Senators, Art. I, s 2; Seventeenth Amendment; Ex parte Yarbrough, 110 U.S. 651, 663, 4 S.Ct. 152, 28 L.Ed. 274. But, of course, the States have no power to grant or withhold the franchise on conditions that are forbidden by the Fourteenth Amendment, or any other provision of the Constitution.
Katzenbach, 384 U.S. at 647. The Constitution establishes the State’s authority to set voter
qualifications, and while Congress may regulate voting issues, Congress does not establish voter
qualifications per se.
Additionally, Section 2 of the Fourteenth Amendment to the United States Constitution
explicitly recognizes the authority of the states regarding voter qualifications and
disenfranchisement:
Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the
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basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
U.S. CONST. amend. XIV, § 2 (emphasis added). Section 2 of the Fourteenth Amendment plainly
sanctions the disenfranchisement of felons by the states as qualified voters for the election of President and Vice President.4 See id.; Richardson v. Ramirez, 418 U.S. 24, 54-56, 94 S. Ct.
2655 (1974); Hayden v. Pataki, 449 F.3d 305, 316 (2nd Cir. 2006); Cotton, 157 F.3d at 391.
Of Section 241’s requirements to become a qualified elector, only the durational
residency requirement is impacted by federal law. Particularly, 42 U.S.C. § 1973aa-1 provides in
pertinent part:
No citizen of the United States who is otherwise qualified to vote in any election for President and Vice President shall be denied the right to vote for electors for President and Vice President, or for President and Vice President, in such election because of the failure of such citizen to comply with any durational residency requirement of such State or political subdivision[.]
42 U.S.C. § 1973aa-1(c) (emphasis added). Therefore, to qualify to vote for President and Vice
President in Mississippi, an inhabitant must meet the requirements of Section 241, except the durational residency requirement.5
Both the structure and meaning of Section 241 reject Plaintiffs’ interpretation.
Additionally, other state statutes, read in pari materia with Section 241, prove that no federal
4Thus, it is apparent that Plaintiffs’ Equal Protection claim rises and falls with their state law claim. The same is true for Plaintiffs’ claims under the NVRA, which explicitly recognizes that states may remove any registered voter “as permitted by State law, by reason of criminal conviction or mental incapacity.” 42 U.S.C. § 1973gg-6(a)(3)(B); see infra at 20-21.
5Given the enactment of Mississippi Code Section 23-15-11, the only instance in which the state residency requirement would not be applicable is if a qualified elector of Mississippi moved to another state within thirty days of a Presidential and Vice Presidential election and was not a qualified voter under the laws of his new state. In that instance, such otherwise qualified voter could return to Mississippi to vote or vote by Mississippi absentee ballot. See 42 U.S.C. § 1973aa-1(e).
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election exception exists. Section 23-15-11, which tracks the qualified elector language of
Section 241, provides, in pertinent part:
Every inhabitant of this state, except persons adjudicated to be non compos mentis, who is a citizen of the United States of America, eighteen (18) years old and upwards, who has resided in this state for thirty (30) days and for thirty (30) days in the county in which he seeks to vote, and for thirty (30) days in the incorporated municipality in which he seeks to vote, and who has been duly registered as an elector under Section 23-15-33, and who has never been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, shall be a qualified elector in and for the county, municipality and voting precinct of his residence, and shall be entitled to vote at any election. . . . No others than those specified in this section shall be entitled, or shall be allowed, to vote at any election.
Miss. Code Ann. § 23-15-11 (emphasis added). The highlighted language is clear and
unambiguous, containing no exception for federal elections. Additionally, § 23-15-19 stipulates
that:
Any person who has been convicted of any crime listed in Section 241, Mississippi Constitution of 1890, shall not be registered, or if registered the name of such person shall be erased from the registration book on which it may be found by the registrar or by the election commissioners.
Miss. Code Ann. § 23-15-19. Again, this provision contains no exception to disenfranchisement
for those convicted of any crime listed in Section 241. Section 23-15-151 provides for the
tracking of disenfranchised felons:
The circuit clerk of each county is authorized and directed to prepare and keep in his office a full and complete list, in alphabetical order, of persons convicted of any crime listed in Section 241, Mississippi Constitution of 1890. Said clerk shall enter the names of all persons who have been or shall be hereafter convicted of any crime listed in Section 241, Mississippi Constitution of 1890, in a book prepared and kept for that purpose.
Miss. Code Ann. § 23-15-151. As with the other statutes, there is no recognized exception for
voting in federal elections.
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The State Defendants have shown that Plaintiffs’ interpretation is incorrect.6 Having clearly failed to establish that Section 241 protects a convicted felon’s right to vote for President and Vice President, all of Plaintiffs’ claims become unsupportable as a matter of law, and the Court should grant the State’s motion to dismiss. II. This Court Lacks Subject Matter Jurisdiction to Hear Plaintiffs’ Claims.
As the party asserting jurisdiction, Plaintiffs bear the burden of establishing subject matter jurisdiction. Kokkonen v. Guardian Liberty Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). To support federal jurisdiction, the Complaint must be drawn in such a way “so as to claim a right to recover under the Constitution and laws of the United States.” Bell v. Hood, 327 U.S. 678, 681 (1946); Suthoff v. Yazoo County Idus. Dev. Corp., 637 F.2d 337, 339 (5th Cir. 1981). While federal courts should exercise jurisdiction where the Complaint “seek[s] recovery directly under the Constitution or laws of the United States,” Bell, 327 U.S. at 681, jurisdiction does not exist “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous.” Id. at 682-83; Suthoff, 637 F.2d at 339. A claim is considered frivolous or insubstantial where such claim “has no plausible foundation or which is clearly foreclosed by a prior Supreme Court decision.” Bell v. Health-Mor, Inc., 549 F.2d 342, 344 (5th Cir. 1977). As discussed below, Plaintiffs have failed to establish subject matter
6A second interpretation exists concerning the phrase “except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor[.]” Because voters actually cast their votes for Presidential electors rather than voting for President directly, Miss. Code Ann. § 23-15-785, one argument is that the disputed language addresses the qualifications of those who would be Presidential electors, i.e. those who actually “vote for President and Vice President.” Regardless, this argument does not aid Plaintiffs but further illustrates the absurdity of Plaintiffs’ position.
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jurisdiction. Plaintiffs are not asserting that Section 241 of the Mississippi Constitution, standing
alone, is unlawful or unconstitutional. Indeed, Plaintiffs seek the protection and alleged benefit of Section 241, arguing that Section 241 actually protects the right of convicted felons to vote for President and Vice President (although the State has never applied Section 241 in this fashion). Rather, Plaintiffs argue that the State’s interpretation and application of Section 241 violates both state and federal law. Thus, Plaintiffs’ suit turns upon the accuracy of Plaintiffs’ interpretation of state law, so much so that Plaintiffs’ federal claims are dependant on this Court finding a violation of state law.
A cursory review of the Complaint reveals that Plaintiffs do not premise their recovery directly on the Equal Protection Clause or the NVRA. Plaintiffs’ entire factual allegations address state law, (Compl. at 3-5), and their first cause of action is devoted to an alleged violation of Section 241 of the Mississippi Constitution, asserting that “Section 241 . . . secures the rights of individuals convicted of crimes to vote for President and Vice President of the Untied States.” (Compl. at 5-6). Plaintiffs’ second and third causes of action for violation of the Equal Protection Clause and the NVRA, respectively, are premised necessarily on the retention by convicted felons of the right to vote under state law. The Complaint recognizes such reliance noting under each count that “[a]lthough Plaintiffs Young and Colley have felony convictions, they remain eligible to vote for President and Vice President of the United States.” (Compl. at ¶¶ 28, 37).
Plaintiffs’ Memorandum of Law in Support of their Motion for Preliminary Injunction leaves no doubt as to Plaintiffs’ sole reliance on state law:
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Pursuant to . . . Section 241 . . . Plaintiffs retain the right to vote in the November 4, 2008 election for president and vice president on an equal basis with citizens who have never been convicted of a crime. (Pl.s’ Memo. in Supp. of Mot. for Prelim. Injunction at 7-8). Regarding Plaintiffs’ claims under the NVRA, Plaintiffs’ Memo again states that: Mississippi law allows anyone with a criminal conviction to vote for president and vice president of the United State. However, neither Mississippi’s voter registration application form nor Mississippi’s driver’s license application form allows a person to register to vote only in presidential and vice presidential elections. (Pl.s’ Memo. in Supp. of Mot. for Prelim. Injunction at 10). Thus, it is only by operation of state law as interpreted by Plaintiffs that Plaintiffs can even invoke the alleged protections of the Fourteenth Amendment and the NVRA. Their claims are clearly predicated on state law, not federal law. Such bootstrapping is impermissible under Supreme Court and Fifth Circuit precedent. In Snowden v. Hughes, the Supreme Court considered a state candidate’s claim that state election officials had “willfully, maliciously, and arbitrarily” violated state election statutes in refusing to place him on the ballot and, thus, violated the Fourteenth Amendment. 321 U.S. 1, 4 (1944). Specifically, state law provided that two Republican nominees were to appear on the ballot for the election of representatives to the General Assembly. Id. at 3. The State Primary Canvassing Board, however, certified only one Republican nominee to appear on the ballot. Id. at 4. Petitioner, having received the second highest votes, sued in federal court under the Equal Protection Clause, arguing that the actions of the canvassing board “constituted an ‘unequal, unjust and oppressive administration’ of the laws of Illinois.” Id. The Supreme Court recognized plaintiff’s argument to be that the canvassing board, “merely by failing to certify
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petitioner as a duly elected nominee, has denied to him a right conferred by state law.” Id. at 8.
The Supreme Court rejected plaintiff’s attempt to equate a violation of state election law
with a violation of the Fourteenth Amendment:
Nor can we conclude that the action of the State Primary Canvassing Board, even though it be regarded as state action within the prohibitions of the Fourteenth Amendment, was a denial of the equal protection of the laws. The denial alleged is of the right of petitioner to be a candidate for and to be elected to public office upon receiving a sufficient number of votes. The right is one secured to him by state statute and the deprivation of right is alleged to result solely from the Board's failure to obey state law. There is no contention that the statutes of the state are in any respect inconsistent with the guarantees of the Fourteenth Amendment.
* * * But not every denial of a right conferred by state law involves a denial of the equal protection of the laws, even though the denial of the right to one person may operate to confer it on another. Where, as here, a statute requires official action discriminating between a successful and an unsuccessful candidate, the required action is not a denial of equal protection since the distinction between the successful and the unsuccessful candidate is based on a permissible classification. And where the official action purports to be in conformity to the statutory classification, an erroneous or mistaken performance of the statutory duty, although a violation of the statute, is not without more a denial of the equal protection of the laws.
Id. at 7-8. The Court noted that the proper inquiry was whether the state action – independent of
its legality under state law – violated the Fourteenth Amendment in and of itself.
If the action of the Board is official action it is subject to constitutional infirmity to the same but no greater extent than if the action were taken by the state legislature. Its illegality under the state statute can neither add to nor subtract from its constitutional validity. Mere violation of a state statute does not infringe the federal Constitution. And state action, even though illegal under state law, can be no more and no less constitutional under the Fourteenth Amendment than if it were sanctioned by the state legislature.
Id. at 11 (internal citations omitted). Based on the preceding, the Court found that it lacked
jurisdiction, concluding that “the right asserted by the petitioner is not one secured by the
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Fourteenth Amendment and affords no basis for a suit brought under the sections of the Civil Rights Acts relied upon[.]” Id. 13.
The Fifth Circuit, in Stern v. Tarant County Hosp. Dist., considered en banc the equal protection claims of five osteopathic physicians who had been denied staff privileges at a county hospital. 778 F.2d 1052 (5th Cir. 1985). Specifically, state law prohibited state-agency hospitals from denying medical staff appointments based solely upon the academic medical degree held by the licensed physician, that is a hospital could not discriminate between an allopathic physician (M.D.) and an osteopathic physician (D.O.). Id. at 1054-55. The offending hospital admittedly denied staff privileges to the five osteopaths because they had not completed an allopathic training program. Id. at 1054.
Nevertheless, the Fifth Circuit ultimately rejected plaintiffs’ equal protection challenge: We reject a per se equal protection analysis. The guarantees of the fourteenth amendment, its requirement that state laws be applied in the same way to those entitled to equal treatment and its promise of protection from arbitrary or irrational state action, are guarantees that turn on federal constitutional standards of equality and rationality rather than on state standards. Converting alleged violations of state law into federal equal protection and due process claims improperly bootstraps state law into the Constitution. In doing so, this novel approach would expand the scope of the fourteenth amendment, would render its meaning less certain, and would serve no legitimate policy. Id. at 1056 (emphasis added). Following Snowden, the Fifth Circuit noted that “[o]ur lodestar is not what the state legislature has done or purported to do, but what any rational decision maker might have chosen to do.” Id. at 1059-60. As directed by the holdings in Snowden and Stern, the proper inquiry is whether the State’s interpretation and application of Section 241, regardless of its alleged illegality under state law, actually violates the Fourteenth Amendment. This inquiry is decisive regarding this
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Court’s jurisdiction for two reasons: First, Plaintiffs do not directly and independently challenge the State’s interpretation and application of Section 241. Plaintiffs’ challenge is dependent upon an alleged violation of state law. Supra at 9-10. Here, as in Snowden, “[t]here is no contention that the statutes of the state are in any respect inconsistent with the guarantees of the Fourteenth Amendment.” Supra at 11. Indeed, as noted in the second point below, Plaintiffs cannot mount a broad attack upon the State’s disenfranchisement of convicted felons.
Second, Supreme Court precedent unequivocally establishes that “the exclusion of felons from the vote has an affirmative sanction in s 2 of the Fourteenth Amendment” and said disenfranchisement does not violate the Equal Protection Clause. Richardson v. Ramirez, 418 U.S. 24, 53-56 (1974). Discussing Richardson, the Fifth Circuit held:
Thus, the Court clearly envisioned that a state could grant the right to vote to some persons convicted of a felony while denying it to others. Section 2's express approval of the disenfranchisement of felons thus grants to the states a realm of discretion in the disenfranchisement and reenfranchisement of felons which the states do not possess with respect to limiting the franchise of other citizens. Shepherd v. Trevino, 575 F.2d 1110, 1114 (5th Cir. 1978). Finally, in Cotton v. Fordice, the Fifth Circuit specifically found that “§ 241 [of the Mississippi Constitution] as it presently exists is unconstitutional only if the amendments were adopted out of a desire to discriminate against blacks.” 157 F.3d 388, 392 (5th Cir. 1998) (emphasis added). The Court subsequently found no discriminatory motive. Id. Thus, Section 241 as interpreted and applied by the State cannot be, and is not, challenged on equal protection grounds. Plaintiffs do not plead a direct and independent federal cause of action, and any broad attack on felony disenfranchisement is foreclosed by the Fourteenth Amendment, Richardson and Fifth Circuit precedent. Rather, Plaintiffs rely upon the State’s position being unlawful under
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state law. Such pleading is not only impermissible bootstrapping, it is insufficient to support federal jurisdiction because any such claim lacks a federal legal basis and therefore, should be dismissed. See Bell v. Hood, 327 U.S. at 682-83 (finding that jurisdiction does not exist “where the alleged claim under the Constitution or federal statutes clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous”); Bell v. Health-Mor, Inc., 549 F.2d at 344 (finding that a claim is considered frivolous or insubstantial where such claim “has no plausible foundation or which is clearly foreclosed by a prior Supreme Court decision”). III. Plaintiffs’ Claims are Barred by the Eleventh Amendment.
Plaintiffs sued the State Defendants in their official capacities, seeking declaratory and injunctive relief. As discussed below, these Defendants, however, are entitled to the immunity from suit recognized in the Eleventh Amendment to the United States Constitution. See Alden v. Maine, 527 U.S. 706, 712-13 (1999). The Eleventh Amendment provides as follows:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. U.S. CONST. amend. XI.7 Absent waiver or a valid abrogation of the State’s immunity by Congress, the State may not be sued in federal court regardless of the relief requested. Green v. Mansour, 474 U.S. 64, 68 (1986); Martinez v. Texas Dep’t of Criminal Justice, 300 F.3d 567, 573 (5th Cir. 2002).
7The Supreme Court “[h]as consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another state.” Edelman v. Jordan, 415 U.S. 651, 662-63 (1974); Lakshman v. Mason, No. 3:05cv151 HTW-JCS, 2006 WL 2827683, at *3 (S.D. Miss. Sept. 30, 2006). (Wingate, J.).
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This immunity extends to state agencies, departments and other arms of the state. Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Richardson v. Southern University, 118 F.3d 450, 452 (5th Cir. 1997). Equally, Eleventh Amendment immunity extends to state officials acting within their official capacities. See Will v. Michigan Dep’t of State Police, 491 U.S. 58, 66-71 (1989); Carter v. Mississippi Dep’t of Human Servs., No. 3:05cv190 HTW-JCS, 2006 WL 2827691, at *2 (S.D. Miss. Sept. 29, 2006) (Wingate, J.). Congress has not abrogated and Mississippi has not waived its Eleventh Amendment or sovereign immunity in the present context.
Secretary Hosemann is clearly a state official and enjoys the benefits of the Eleventh Amendment. E.g. O’Hara v. Mississippi Office of Secretary of State, No. 2:06cv180, 2007 WL 2071796 at *3-4 (S.D. Miss. July 17, 2007) (Starrett, J.). Equally, the county election commissioners, in the context of executing the essential state functions of voting, are considered arms of the state. See McLaughlin v. City of Canton, Miss., 947 F. Supp. 954, 966 (S.D. Miss. 1995) (Wingate, J.) (finding that municipal election commission was an arm of the state where it is was merely enforcing a state statutory scheme [Section 241 in fact] which it believed to be unambiguous on its face and which reflected state, rather than county, policy). Given the foregoing, the State Defendants will address Plaintiffs’ state and federal claims.
A. State Claim Plaintiffs seek declaratory and injunctive relief against the State Defendants premised on a misinterpretation of Section 241 of the Mississippi Constitution, as well as the protections of that very law. See discussion supra at Part I. Plaintiffs’ claim is barred by the Eleventh Amendment. As declared by the Supreme Court in Pennhurst State Sch. & Hosp. v. Halderman:
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A federal court’s grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law. On the contrary, it is difficult to think of a greater intrusion on state sovereignty than when a federal court instructs state officials on how to conform their conduct to state law. Such a result conflicts directly with the principles of federalism that underlie the Eleventh Amendment. 465 U.S. 89, 106 (1984). The Fifth Circuit has held that a plaintiff’s state law claims “are not cognizable in a proceeding under Ex parte Young because state officials continue to be immunized from suit in federal court on alleged violations of state law brought under the federal courts’ supplemental jurisdiction.” Earles v. State Bd. of Certified Public Accountants of La., 139 F.3d 1033, 1039 (5th Cir. 1998) (citing Pennhurst at 103-21); see Mississippi Surplus Lines Ass’n v. Mississippi, 384 F. Supp. 2d 982, 985-86 (S.D. Miss. 2005) (Lee, J.). Clearly, the Eleventh Amendment bars Plaintiffs’ state law claim against the State Defendants. B. Federal Claims Plaintiffs assert that the State’s misapplication of Section 241 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the NVRA. The immunity analysis begins with the assumption that Plaintiffs’ official capacity claims, which act as claims against the State,8 are barred by the Eleventh Amendment. To overcome this bar, Plaintiffs must show that their suit fits within the narrow exception carved out in Ex parte Young, 209 U.S. 123 (1908). In Young, the Supreme Court examined, inter alia, whether the Attorney General of Minnesota could be sued in federal court, consistent with the Eleventh Amendment, where the plaintiffs sought to enjoin the Attorney General from enforcing
8By suing the specified Defendants in their official capacities for declaratory and injunctive relief relating to voting registration, Plaintiffs are quite plainly seeking to restrain the State from acting or to compel it to act; thus, Plaintiffs’ official capacity claims are claims against the sovereign. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02, n. 11 (1984).
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a state enactment alleged to be unconstitutional. 209 U.S. at 126-33. In holding that the Eleventh Amendment did not impede such suit, the Court reasoned as
follows: If the act which the state attorney general seeks to enforce be a violation of the Federal Constitution, the officer, in proceeding under such enactment, comes into conflict with the superior authority of that Constitution, and he is in that case stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct. The state has no power to impart to him any immunity from responsibility to the supreme authority of the United States.
Id. at 159-60. Addressing the Young holding in a later case, the Supreme Court explained that “[t]his holding was based on a determination that an unconstitutional state enactment is void and that any action by a state official that is purportedly authorized by that enactment cannot be taken in an official capacity since the state authorization for such action is a nullity.” Papasan v. Allain, 478 U.S. 265, 276 (1986)
Given these considerations, the Supreme Court has specifically limited the application of Young, stating that “[i]n accordance with its original rationale, Young applies only where the underlying authorization upon which the named official acts is asserted to be illegal.” Papasan, 478 U.S. at 277. Additionally, even where certain cases meet the formal Young requirements, the Supreme Court limits the Young fiction to “cases in which a violation of federal law by a state official is ongoing as opposed to cases in which federal law has been violated at one time or over a period of time in the past, as well as on cases in which the relief against the state official directly ends the violation of federal law[.]” Id. at 277-78.
Plaintiffs may only invoke the Young fiction if they seek (1) to prospectively enjoin (2) a state official (3) from acting pursuant to the authority granted by an unconstitutional state
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enactment (4) where the violation of federal law is ongoing and (5) where such injunction will directly end the violation of federal law. When viewed in its entirety, the Young exception is quite narrow. Should a claim fail to satisfy each requirement of the exception, the Eleventh Amendment will bar such claim.
Plaintiffs do not challenge Section 241; rather, Plaintiffs petition this Court to enjoin the State Defendants to apply the law, and its perceived benefits, to them. Plaintiffs seek to drag the State into federal court by transmogrifying a claim premised solely on state law (of which Plaintiffs seek the benefit) into federal constitutional and statutory claims for declaratory and injunctive relief. As such, Plaintiffs cannot invoke the Young exception because this matter does not involve an unconstitutional state enactment or the kind of claims that would require a tipping of the balance away from the constitutionally recognized immunity of the State toward the need to vindicate federal rights as the supreme law of the land. See Pennhurst, 465 U.S. at 105-06.
As to the treatment of state law, this case bears striking similarity to Mohler v. State of Mississippi, 782 F.2d 1291 (5th Cir. 1986). In Mohler, Mississippi school teachers brought a class action civil rights suit against the State asking the federal court to require the State to increase teachers’ pay scale in accordance with Mississippi’s “pay-raise” statute. 782 F.2d at 1292. The teachers argued that the pay-raise statute created a property right vesting in the teachers and that they had been denied their property right in violation of federal law. Id. The Fifth Circuit began its analysis by chiding plaintiffs, “[r]egarding appellants’ claim for their purported pay raises, a minimal perusal of the case law would have informed appellants’ attorney that this entire action is barred by the Eleventh Amendment.” Id. at 1292-93.
Continuing, the Court cut straight to the heart of the matter: “The instant action is both in
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form and in substance a suit against the state. It seeks equitable relief requiring the state to pay money from its treasury to its teachers.” Id. at 1293. The Court further found that the pay-raise statute could not be interpreted as creating a constitutionally protected property interest vesting in the teachers. Id.
Addressing the teachers’ request for prospective relief, the Fifth Circuit found as follows: The appellants also appear to demand prospective relief (pay raise for both 1985 and 1986). But no constitutional claims have been stated. The complaint instead is obviously based upon state law, and the alleged failure of Mississippi officials to carry out the dictates of state law. When only state law is involved, “the eleventh amendment immunity jurisdictional bar applies to state agencies and officials acting in their official capacity regardless of the relief the plaintiff[s] seek[ ].” Id. (citations omitted). Finally, the Court concluded that the Young exception did not apply, reasoning that: [Young] is not applicable here, because appellants do not seek to enjoin a state official from enforcing an unconstitutional statute. Rather, they seek to compel state officials to enforce state law, which appellants obviously otherwise interpret as constitutional and under which they claim expected benefits-not even recognizable property rights. Id. at 1294. Mohler precludes Plaintiffs’ attempt to gain access to federal court via state law. See also Chayer v. Barbour, 560 F. Supp. 2d 490 (S.D. Miss. 2008) (Lee, J.). Additionally, Plaintiffs do not allege an ongoing violation of federal law that can be reviewed by this Court. Given that Section 241 clearly disenfranchises certain convicted felons and that the Eleventh Amendment prohibits this Court from reviewing legal challenges premised on state law, this Court cannot review Plaintiffs’ alleged Equal Protection and NVRA violations because the existence of such violations or actionable claims must be based, necessarily, on an actual violation of Section 241. See supra at 7 n. 4 and Part II. The State Defendants’ construction and execution of Section 241 do not violate the
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Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. See supra Parts I, II. Plaintiffs contend that they are qualified electors who are being denied the right to register and vote in violation of the Equal Protection Clause. Plaintiffs’ argument hinges on their being found to be qualified voters, which position the State Defendants have previously addressed, supra Part I. Plaintiffs must rely on such an argument because the United States Supreme Court has explicitly found that a state may exclude felons from the franchise without violating the Equal Protection Clause of the Fourteenth Amendment. See Richardson, 418 U.S. at 54-56; Cotton, 157 F.3d at 391. Because Plaintiffs are not qualified voters, their disenfranchisement does not violate the Equal Protection Clause.
Equally decisive, the NVRA explicitly recognizes that states may remove any registered voter “as permitted by State law, by reason of criminal conviction or mental incapacity.” 42 U.S.C. § 1973gg-6(a)(3)(B). As set forth previously, supra Part I, Mississippi constitutional and statutory law clearly prohibit those individuals who have been convicted of certain crimes from registering to vote. Accordingly, the NVRA does not prohibit Mississippi from enforcing its voter qualification laws and/or removing such convicted felons from the voter rolls.
Finally, Plaintiffs cannot avail themselves of the Young exception because the present State Defendants do not have the authority to enforce Section 241, thus any injunction against these State Defendants would not end the alleged violation of federal law, making them nominal defendants. See Young at 156-58. In Okpalobi v. Foster, 244 F.3d 405 (5th Cir. 2001), the United States Court of Appeals for the Fifth Circuit, sitting en banc, confronted the issue whether the Governor and Attorney General of Louisiana were shielded from suit by the Eleventh Amendment in a private action in federal court challenging the constitutionality of a state statute
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creating a private cause of action against medical doctors performing abortions. Recognizing that the suit would be barred absent application of the Young fiction, the Court set about recounting and analyzing Young’s predecessors and progeny, including decisions rendered by other federal courts. Okpalobi, 244 F.3d at 411-416.
Before beginning its detailed analysis, the Fifth Circuit noted that “[i]t is against this background of the overriding importance of the Eleventh Amendment in limiting the power of the federal courts over the sovereignty of the several states, that we now consider whether the facts of this appeal can fit into the exception carved from the Eleventh Amendment in Ex parte Young, so as to allow the federal courts to enjoin [the state statute].” Okpalobi, 244 F.3d at 411. At the end of its analysis, the en banc Court found that “[the Young] exception only applies when the named defendant state officials have some connection with the enforcement of the act and ‘threaten and are about to commence proceedings’ to enforce the unconstitutional act.” Id. at 416. Because the governor and attorney general did not meet this two-pronged test (the statute provided a private right of action), the Young fiction did not apply, even though the plaintiff was seeking prospective injunctive relief regarding an allegedly unconstitutional statute. Id. at 41621.
In the present suit, the State Defendants have little connection with the enforcement of the challenged provision. Plaintiffs seek an injunction preventing these State Defendants from interfering with their alleged right to register to vote for federal elections. (Compl. at 8; Pl.s’ Mot. for Prelim. Injunc. at 1). Registrars are the entities tasked with registering voters. Miss. Code Ann. § 23-15-33, -41. Plaintiffs have not sued any registrars. This district court has previously ruled that concerning the enforcement of Section 241, the Secretary of State is not a
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proper party. McLaughlin, 947 F. Supp. 965. Additionally, while election commissioners have some authority to purge convicted felons from the registration book, Miss. Code Ann. § 23-1519, and some oversight of the registrar to “register the names of all persons who have duly applied to be registered and have been illegally denied registration,” Miss. Code Ann. § 23-15153(1), election commissioners have no right to register voters. Section 23-15-41(1) explicitly states that “[n]o person other than the registrar, or a deputy registrar, shall register any applicant.” Miss. Code Ann. § 23-15-41(1). These State Defendants are not sufficiently connected with the enforcement of Section 241 for Plaintiffs to maintain an action against them. That being true, any injunction issued against these State Defendants would not end the alleged violation of federal law.
A challenge to a state enactment pursuant to which the state official acts and against whom an injunction would be effective is necessary to invoke the Young fiction. These State Defendants being only nominal defendants, no need exists to tip the balance away from the constitutional immunity of the states toward the need to vindicate federal rights and hold these State Defendants responsible to the supreme authority of the United States in a federal forum. See Pennhurst, 465 U.S. at 105-06.
Plaintiffs’ claims are based on state law and the State’s alleged failure to follow the requirements of state law. As shown herein, the State Defendants have properly construed and executed Section 241. As such, this action is prohibited by the Eleventh Amendment and not excepted by Young. Accordingly, the State Defendants are immune from suit, and Plaintiffs’ entire suit should be dismissed.
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IV. As an Alternative, This Court Should Abstain from Hearing this Case Under the Pullman Doctrine. Plaintiffs’ arguments, even if believed by this Court, would establish nothing more than
that state law on this point is unclear or unsettled and, therefore, this Court should abstain from resolving an unsettled issue of state law under the doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496 (1941). In Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Committee, the Fifth Circuit explained Pullman abstention:
The Supreme Court explained in Hawaii Housing Authority v. Midkiff that under the Pullman doctrine, a federal court should abstain from exercising its jurisdiction "when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided." "By abstaining in such cases, federal courts will avoid both unnecessary adjudication of federal questions and 'needless friction with state policies....'" In other words, for Pullman abstention to be appropriate in [a] case, it must involve (1) a federal constitutional challenge to state action and (2) an unclear issue of state law that, if resolved, would make it unnecessary for us to rule on the federal constitutional question. 283 F.3d 650, 652-53 (5th Cir. 2002) (internal citations omitted). As to the first Pullman prong, Plaintiffs have at least attempted to state a constitutional claim under the Equal Protection Clause of the Fourteenth Amendment and a federal statutory claim under the NVRA. (Compl. at 6-8). As to the second Pullman prong, the Nationwide Mutual court described the test as follows: “[T]here must be an uncertain issue of state law that is ‘fairly susceptible’ to an interpretation that would render it unnecessary for us to decide the federal constitutional questions in a case.” Id. at 653 (quoting Baran v. Port of Beaumont Navigation Dist., 57 F.3d 436, 442 (5th Cir. 1995)). In this case, if the law were settled by a state court in favor of these State Defendants, Plaintiffs’ arguments and claims would falter. This is so because Plaintiffs are not questioning the underlying law (indeed, they are seeking its protection)
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but only the State’s interpretation of the law. Thus, even if the Court were to find the authority to be unclear, the State Defendants
respectfully request that this Court abstain from hearing the federal claims so that the state courts will have the opportunity to determine this matter that, if resolved, would alter this Court’s interpretation of the federal issues. See Brooks v. Walker County Hospital District, 688 F.2d 334, 338 (5th Cir. 1982) (“It is well settled that Pullman abstention may be appropriate . . . where the federal claims may be thoroughly mooted through a narrowing construction of state law.”); see also Thrasher v. Board of Sup’rs of Alcorn County, Miss., 765 F.Supp. 896, 904 (N.D. Miss.1991) (noting possible application of Pullman in an election case but refusing to apply because even if the state court resolved the law against the defendants “plaintiffs would still have failed to show, as a matter of law, the type of federal or constitutional violation warranting this court’s jurisdiction under Section 1983”).
CONCLUSION Based on the preceding arguments, the State Defendants respectfully request that this Court grant the State Defendants’ motion and dismiss Plaintiffs’ claims in their entirety. Wherefore, premises considered, the State Defendants respectfully request that this Court GRANT the present Motion to Dismiss. Respectfully submitted, this the 2nd day of October, 2008.
By: JIM HOOD, ATTORNEY GENERAL s/ Shawn S. Shurden SHAWN S. SHURDEN, MSBN 99678 SPECIAL ASSISTANT ATTORNEYS GENERAL CIVIL LITIGATION DIVISION Counsel for the Defendant 25

Case 3:08-cv-00567-TSL-JCS Document 14 Filed 10/02/08 Page 26 of 27 Civil Litigation Division Office of Attorney General Post Office Box 220 Jackson, Mississippi 39205 Telephone: (601) 359-3680
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CERTIFICATE OF SERVICE
This is to certify that I, Shawn S. Shurden, a Special Assistant Attorney General for the
State of Mississippi, I electronically filed the foregoing with the Clerk of the Court using the
ECF system which sent notification of such filing to the following:
Kristy L. Bennett AMERICAN CIVIL LIBERTIES UNION OF MISSISSIPPI Post Office Box 2242 Jackson, Mississippi 39225-2242
Laughlin McDonald Neil Bradley Nancy G. Abudu AMERICAN CIVIL LIBERTIES UNION VOTING RIGHTS PROJECT 2600 Marquis One Tower 245 Peachtree Center Ave., N.E. Atlanta, GA 30303-1227
This the 2nd day of October, 2008.
s/ Shawn S. Shurden SHAWN S. SHURDEN

 
 Case 3:08-cv-00567-TSL-JCS Document 44 Filed 03/09/09 Page 1 of 2

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION

JERRY YOUNG and CHRISTY COLLEY

PLAINTIFFS

VS.

CIVIL ACTION NO. 3:08CV567TSL-JCS

DELBERT HOSEMANN, in his official capacity as the Secretary of State of Mississippi; KRISTIN BUSE, DEBBY McCAFFERTY, JOHN M. WAGES, HARRY GRAYSON, JR., and JOHN H. EDWARDS, in their official capacities as Election Commissioners of Lee County; and VIVIAN BURKLEY, JULIUS HARRIS, JIMMY HERRON, BONNIE G. LAND, and RONALD McMINN, in their official capacities as Election Commissioners in Panola County

DEFENDANTS

ORDER This cause is before the court on the motion of defendants to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiffs have responded in opposition to the motion. The court, having considered the memoranda of authorities submitted by the parties, concludes as a matter of law that plaintiff’s complaint is without merit and should be dismissed with prejudice. Plaintiffs filed this action on September 12, 2008, accompanied by a motion for preliminary injunction, alleging that “Article 12, Section 241 of the Mississippi Constitution explicitly allows for individuals who have been convicted of a crime to vote for President and Vice President of the United States” and that the State’s “disfranchisement violates . . . Section 241 . . . the equal protection clause . . . and the

Case 3:08-cv-00567-TSL-JCS Document 44 Filed 03/09/09 Page 2 of 2
National Voter Registration Act.” After briefing and a hearing, the court denied plaintiffs’ request for injunctive relief, explaining that plaintiffs were entitled to no relief because the court “does not find the plaintiff’s interpretation (of Section 241) to be a fair or reasonable construction,” and because the court “concludes that defendants have correctly construed this provision.” Defendants have now moved to dismiss, asserting, among other grounds for dismissal, that plaintiffs fail to state a claim upon which relief can be granted because their interpretation of Section 241 is legally incorrect.1 Having again considered the parties’ arguments, the court reaffirms its earlier conclusion that defendant has correctly construed Section 241. It follows that plaintiffs’ complaint is without merit and should be dismissed with prejudice.
Accordingly, it is ordered that defendant’s motion to dismiss is granted.
SO ORDERED this 9th day of March, 2009.
/s/Tom S. Lee UNITED STATES DISTRICT JUDGE

1

Defendants have also argued that this court lacks

subject matter jurisdiction. The court previously rejected this

argument, and does so again now.

2

 
 Case: 3:08-cv-00567-TSL-JCS As of: 08/23/2011 08:21 PM CDT 1 of 7
CLOSED, JCS
U.S. District Court Southern District of Mississippi (Jackson) CIVIL DOCKET FOR CASE #: 3:08−cv−00567−TSL−JCS

Young et al v. Hosemann et al Assigned to: District Judge Tom S. Lee Referred to: Magistrate Judge James C. Sumner Case in other court: U.S. Court of Appeal for 5th Circuit,
09−60188 Cause: 28:1331 Fed. Question: Civil Rights Violation
Plaintiff

Date Filed: 09/12/2008 Date Terminated: 03/09/2009 Jury Demand: None Nature of Suit: 441 Civil Rights: Voting Jurisdiction: Federal Question

Jerry Young

represented by Kristy L. Bennett KRISTY L. BENNETT, ATTORNEY AT LAW 2888 Laverne Road Nesbit, MS 38651−9651 662/429−1852 Email: k_l_bennett@hotmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Moffatt Laughlin McDonald − PHV AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.−Atlanta 230 Peachtree Street NW, Suite 1440 Atlanta, GA 30303 404/523−2721 Fax: 404/653−0331 Email: lmcdonald@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Nancy G. Abudu − PHV AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.−Atlanta 230 Peachtree Street NW, Suite 1440 Atlanta, GA 30303 404/523−2721 Fax: 404/653−0331 Email: nabudu@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

Neil T. Bradley AMERICAN CIVIL LIBERTIES UNION FOUNDATION, INC.−Atlanta 230 Peachtree Street NW, Suite 1440 Atlanta, GA 30303 404/523−2721 Fax: 404/653−0331 TERMINATED: 03/12/2009 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Christy Colley

represented by Kristy L. Bennett (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:08-cv-00567-TSL-JCS As of: 08/23/2011 08:21 PM CDT 2 of 7
Moffatt Laughlin McDonald − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Nancy G. Abudu − PHV (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Neil T. Bradley (See above for address) TERMINATED: 03/12/2009 PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Delbert Hosemann in his official capacity as the Secretary of State of Mississippi
Defendant Kristin Buse in official capacity as Election Commissioner of Lee County
Defendant Debby McCafferty in official capacity as Election Commissioner of Lee County Defendant Harry Grayson, Jr. in official capacity as Election Commissioner of Lee County
Defendant Vivian Burkley in official capacity as Election Commissioner in Panola County

represented by Shawn Stephen Shurden MISSISSIPPI PUBLIC SERVICE COMMISSION 501 N. West Street Suite 201−A Jackson, MS 39201 601/961−5497 Fax: 601/961−5469 Email: shawn.shurden@psc.state.ms.us LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by William C. Murphree MITCHELL, MCNUTT &SAMS, PA − Tupelo P. O. Box 7120 Tupelo, MS 38802−7120 662/842−3871 Fax: 662/842−8450 Email: bmurphree@mitchellmcnutt.com LEAD ATTORNEY
represented by William C. Murphree (See above for address) LEAD ATTORNEY
represented by William C. Murphree (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jay Westfaul THE WESTFAUL LAW FIRM Governor Charles C. "Cliff" Finch Building 115 Eureka Street, Suite A Batesville, MS 38606 662/563−8482

Case: 3:08-cv-00567-TSL-JCS As of: 08/23/2011 08:21 PM CDT 3 of 7

Fax: 662/563−8481 Email: westfaul@westfaulfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Julius Harris in official capacity as Election Commissioner in Panola County

represented by Jay Westfaul (See above for address) LEAD ATTORNEY

Defendant
Jimmy Herron in official capacity as Election Commissioner in Panola County

represented by Jay Westfaul (See above for address) LEAD ATTORNEY

Defendant
Bonnie G. Land in official capacity as Election Commissioner in Panola County

represented by Jay Westfaul (See above for address) LEAD ATTORNEY

Defendant
Ronald McMinn in official capacity as Election Commissioner in Panola County

represented by Jay Westfaul (See above for address) LEAD ATTORNEY

Defendant
John H. Edwards in official capacity as Election Commissioner of Lee County

represented by William C. Murphree (See above for address) LEAD ATTORNEY

Defendant
John M. Wages in official capacity as Election Commissioner of Lee County

represented by William C. Murphree (See above for address) LEAD ATTORNEY

Date Filed 09/12/2008
09/12/2008 09/12/2008 09/17/2008 09/19/2008

# Docket Text
1 COMPLAINT for Injunctive and Declaratory Relief against Julius Harris, Jimmy Herron, Bonnie G. Land, Ronald McMinn, Delbert Hosemann, Kristin Buse, Debby McCafferty, Harry Grayson, Jr, Vivian Burkley, John M. Wages, John H. Edwards (Filing fee $350.00 receipt number J027458), filed by Jerry Young, Christy Colley. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit−A, # 3 Exhibit−B, # 4 Exhibit−C, # 5 Exhibit−D)(SEC) Modified on 9/12/2008 (SEC). (Entered: 09/12/2008)
2 MOTION for Preliminary Injunction by Jerry Young, Christy Colley (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Bennett, Kristy) (Entered: 09/12/2008)
3 MEMORANDUM in Support re 2 MOTION for Preliminary Injunction filed by Jerry Young, Christy Colley (Bennett, Kristy) (Entered: 09/12/2008)
4 Summons Issued as to Julius Harris, Jimmy Herron, Bonnie G. Land, Ronald McMinn, John H. Edwards, John M. Wages, Delbert Hosemann, Kristin Buse, Debby McCafferty, Harry Grayson, Jr, Vivian Burkley. (SEC) (Entered: 09/17/2008)
5 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction filed by Delbert Hosemann (Attachments: # 1 Exhibit Exhibits A − B)(Shurden, Shawn) (Entered: 09/19/2008)

Case: 3:08-cv-00567-TSL-JCS As of: 08/23/2011 08:21 PM CDT 4 of 7

09/23/2008 09/23/2008 09/23/2008 09/23/2008 09/24/2008 09/25/2008
09/25/2008 09/26/2008
09/26/2008 09/26/2008 09/26/2008 10/02/2008 10/02/2008 10/02/2008 10/03/2008 10/03/2008
10/03/2008 10/06/2008 10/07/2008

6 MOTION for Neil T. Bradley to Appear Pro Hac Vice by Jerry Young, Christy Colley (Attachments: # 1 Exhibit A)(Bennett, Kristy) (Entered: 09/23/2008)
7 MOTION for Moffatt Laughlin McDonald to Appear Pro Hac Vice by Jerry Young, Christy Colley (Attachments: # 1 Exhibit A)(Bennett, Kristy) (Entered: 09/23/2008)
8 MOTION for Nancy G. Abudu to Appear Pro Hac Vice by Jerry Young, Christy Colley (Attachments: # 1 Exhibit A)(Bennett, Kristy) (Entered: 09/23/2008)
9 ATTACHMENT re 5 Response in Opposition to Motion Supplement to Response by Delbert Hosemann (Shurden, Shawn) (Entered: 09/23/2008)
10 Rebuttal re 5 Response in Opposition to Motion, 9 Attachment filed by Jerry Young, Christy Colley (Attachments: # 1 Exhibit E, Docket Sheet, # 2 Exhibit F, Order, # 3 Exhibit G, Order of Recusal)(Bennett, Kristy) (Entered: 09/24/2008)
Minute Entry for proceedings held before District Judge Tom S. Lee: Motion Hearing held on 9/25/2008 re 2 MOTION for Preliminary Injunction filed by Jerry Young, Christy Colley. ACTION TAKEN: Motion denied. (Court Reporter C. Bond (601/965−4410) (LWE) (Entered: 09/25/2008)
11 ORDER denying 2 Motion for Preliminary Injunction Signed by District Judge Tom S. Lee on 9/25/08 (SEC) (Entered: 09/25/2008)
TEXT ONLY ORDER granting 6 Motion to Appear Pro Hac Vice; granting 7 Motion to Appear Pro Hac Vice; granting 8 Motion to Appear Pro Hac Vice, that Neil T.Bradley, Moffatt Laughlin McDonald and Nancy G. Abudu be admitted pro hac vice in this case on behalf of the plaintiffs in association with local counsel, upon payment of the required fee and upon registration for electronic filing as required by the Court. NO WRITTEN ORDER SHALL ISSUE. Signed by Magistrate Judge James C. Sumner on September 26, 2008 (CSF) (Entered: 09/26/2008)
Pro Hac Vice fee paid by Nancy G. Abudu $100, receipt number J027610 (SEC) (Entered: 09/26/2008)
Pro Hac Vice fee paid by Moffatt Laughlin McDonald $100, receipt number J027609 (SEC) (Entered: 09/26/2008)
Pro Hac Vice fee paid by Neil T. Bradley $ 100, receipt number J027608 (SEC) (Entered: 09/26/2008)
12 MOTION for Certificate of Appealability by Jerry Young, Christy Colley (Bennett, Kristy) (Entered: 10/02/2008)
13 MOTION to Dismiss by Delbert Hosemann (Shurden, Shawn) (Entered: 10/02/2008)
14 MEMORANDUM in Support re 13 MOTION to Dismiss filed by Delbert Hosemann (Shurden, Shawn) (Entered: 10/02/2008)
15 MOTION to Withdraw 12 MOTION for Certificate of Appealability by Jerry Young, Christy Colley (Bennett, Kristy) (Entered: 10/03/2008)
16 NOTICE OF INTERLOCUTORY APPEAL as to 11 Order on Motion for Preliminary Injunction by Jerry Young, Christy Colley. Filing fee $ 455, receipt number 05380000000001122821. (Bennett, Kristy) Modified on 10/3/2008 to reflect interlocutory appeal. (cwl). (Entered: 10/03/2008)
Remark − mailed to attorney Kristy L. Bennett transcript order form. (cwl) (Entered: 10/03/2008)
17 ORDER withdrawing 12 Motion for Certification of interlocutory appeal; granting 15 Motion to Withdraw. Signed by District Judge Tom S. Lee on 10/6/08 (LWE) (Entered: 10/06/2008)
18 MOTION to Stay pending appeal by Jerry Young, Christy Colley (Attachments: # 1 Proposed Order)(Abudu − PHV, Nancy) (Entered: 10/07/2008)

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10/07/2008 10/17/2008 10/17/2008 10/20/2008 10/22/2008 10/27/2008 10/28/2008 10/28/2008 10/28/2008 10/28/2008 11/07/2008 11/07/2008 11/12/2008
11/13/2008 11/14/2008 11/14/2008 11/14/2008 11/17/2008 11/24/2008

19 ORDER denying 18 Motion to Stay/motion for injunction pending appeal. Signed by District Judge Tom S. Lee on 10/7/08 (LWE) (Entered: 10/07/2008)
20 RESPONSE in Opposition re 13 MOTION to Dismiss filed by Jerry Young, Christy Colley (Abudu − PHV, Nancy) (Entered: 10/17/2008)
21 Rebuttal re 13 MOTION to Dismiss filed by Delbert Hosemann (Attachments: # 1 Exhibit Exhibits A − C)(Shurden, Shawn) (Entered: 10/17/2008)
22 ORDER of USCA(certified copy) as to 16 Notice of Appeal, filed by Jerry Young, Christy Colley; that appellants' motion for injunction pending appeal is denied. (SEC) (Entered: 10/21/2008)
23 TRANSCRIPT REQUEST by Jerry Young, Christy Colley for proceedings held on 9/25/08 before Judge Tom S. Lee, (Abudu − PHV, Nancy) (Entered: 10/22/2008)
24 NOTICE of Appearance by Jay Westfaul on behalf of Julius Harris, Jimmy Herron, Bonnie G. Land, Ronald McMinn, Vivian Burkley (Westfaul, Jay) (Entered: 10/27/2008)
25 SUMMONS Returned Executed by Jerry Young, Christy Colley Julius Harris served on 10/21/2008, answer due 11/10/2008. (Bennett, Kristy) (Entered: 10/28/2008)
26 SUMMONS Returned Executed by Jerry Young, Christy Colley Jimmy Herron served on 10/21/2008, answer due 11/10/2008. (Bennett, Kristy) (Entered: 10/28/2008)
27 SUMMONS Returned Executed by Jerry Young, Christy Colley Bonnie G. Land served on 10/21/2008, answer due 11/10/2008. (Bennett, Kristy) (Entered: 10/28/2008)
28 SUMMONS Returned Executed by Jerry Young, Christy Colley Ronald McMinn served on 10/21/2008, answer due 11/10/2008. (Bennett, Kristy) (Entered: 10/28/2008)
29 MOTION to Dismiss by Julius Harris, Jimmy Herron, Bonnie G. Land, Ronald McMinn, Vivian Burkley (Westfaul, Jay) (Entered: 11/07/2008)
30 Joinder by John H. Edwards, John M. Wages, Kristin Buse, Debby McCafferty, Harry Grayson, Jr to 13 MOTION to Dismiss filed by Delbert Hosemann (Murphree, William) (Entered: 11/07/2008)
31 USCA JUDGMENT: dismissed as to 11/5/08, for want of prosecution. The appellant failed to timely order transcript and make financial arrangements as to 16 Notice of Appeal, filed by Jerry Young, Christy Colley (Attachments: # 1 Cover Letter)(cwl) (Entered: 11/13/2008)
32 RESPONSE in Opposition re 29 MOTION to Dismiss filed by Jerry Young, Christy Colley (Abudu − PHV, Nancy) (Entered: 11/13/2008)
DOCKET ANNOTATION as to # 32 second page of document inadvertently scanned twice. Attorney Nancy Abudu should refile the document. (cwl) (Entered: 11/14/2008)
Pro Hac Vice fee paid by (John P. Wolff, III) $ 100, receipt number J028739 (cwl) Modified on 11/14/2008 inadvertently filed instead it should have been docketed in 3:08cv657. (cwl). (Entered: 11/14/2008)
33 DOCKET ANNOTATION as to Pro Hac Fee paid as to John P. Wolff, III inadvertently entered in this case instead is should have been entered in 3:08cv657. (cwl) (Entered: 11/14/2008)
34 RESPONSE in Opposition re 29 MOTION to Dismiss (Corrected) filed by Jerry Young, Christy Colley (Abudu − PHV, Nancy) (Entered: 11/17/2008)
35 USCA Memorandum: reinstated, re 16 Notice of Appeal. (cwl) (cwl). (Entered: 11/24/2008)

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11/24/2008 11/25/2008 11/25/2008 11/25/2008 11/25/2008 11/25/2008 12/17/2008 01/14/2009 01/28/2009
03/09/2009 03/11/2009 03/11/2009 03/11/2009 03/12/2009 04/01/2009

36 Joinder by Julius Harris, Jimmy Herron, Bonnie G. Land, Ronald McMinn, Vivian Burkley to 14 Memorandum in Support of Motion filed by Delbert Hosemann, 21 Rebuttal filed by Delbert Hosemann, 13 MOTION to Dismiss filed by Delbert Hosemann (Westfaul, Jay) (Entered: 11/24/2008)
37 SUMMONS Returned Executed by Jerry Young, Christy Colley Harry Grayson, Jr served on 10/24/2008, answer due 11/13/2008. (Bennett, Kristy) (Entered: 11/25/2008)
38 SUMMONS Returned Executed by Jerry Young, Christy Colley John M. Wages served on 10/24/2008, answer due 11/13/2008. (Bennett, Kristy) (Entered: 11/25/2008)
39 SUMMONS Returned Executed by Jerry Young, Christy Colley John H. Edwards served on 10/24/2008, answer due 11/13/2008. (Bennett, Kristy) (Entered: 11/25/2008)
40 SUMMONS Returned Executed by Jerry Young, Christy Colley Kristin Buse served on 10/24/2008, answer due 11/13/2008. (Bennett, Kristy) (Entered: 11/25/2008)
41 SUMMONS Returned Executed by Jerry Young, Christy Colley Debby McCafferty served on 10/24/2008, answer due 11/13/2008. (Bennett, Kristy) (Entered: 11/25/2008)
42 WAIVER OF SERVICE Returned Executed by Jerry Young, Christy Colley. Vivian Burkley waiver sent on 12/3/2008, answer due 2/2/2009. (Abudu − PHV, Nancy) (Entered: 12/17/2008)
DOCKET ANNOTATION as to # 35 incorrect pdf document attached. Removed and attached the correct pdf document. (cwl) (Entered: 01/14/2009)
43 NOTICE OF FILING OF OFFICIAL TRANSCRIPT for dates of September 25, 2008 before Judge Tom S. Lee, re 16 Notice of Appeal, Court Reporter/Transcriber Cherie Bond, Telephone number 601.965.4410. NOTICE RE : REDACTION OF TRANSCRIPTS: The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no Notice is filed, the transcript will be made electronically available to the public without redaction after 90 calendar days. The policy is located on the court website at www.mssd.uscourts.gov. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 2/18/2009. Redacted Transcript Deadline set for 3/2/2009. Release of Transcript Restriction set for 4/28/2009. (CB) (Entered: 01/28/2009)
44 ORDER granting 29 Motion to Dismiss; granting 13 Motion to Dismiss Signed by District Judge Tom S. Lee on 3/9/09 (cwl) (Entered: 03/09/2009)
45 MOTION to Withdraw as Attorney for Neil Bradley by Jerry Young, Christy Colley (Attachments: # 1 Proposed Order)(Abudu − PHV, Nancy) (Entered: 03/11/2009)
46 NOTICE OF APPEAL as to 44 Order on Motion to Dismiss, by Jerry Young, Christy Colley. Filing fee $ 455, receipt number 05380000000001243463. (Abudu − PHV, Nancy) (Entered: 03/11/2009)
47 REPLY to Response to Motion re 45 MOTION to Withdraw as Attorney for Neil Bradley filed by Julius Harris, Jimmy Herron, Bonnie G. Land, Ronald McMinn, Vivian Burkley (Westfaul, Jay) (Entered: 03/11/2009)
TEXT ONLY ORDER granting 45 Motion to Withdraw as Attorney. Attorney Neil T. Bradley terminated. Signed by Magistrate Judge James C. Sumner on March 12, 2009. NO FURTHER WRITTEN ORDER TO ENTER. (DCL) (Entered: 03/12/2009)
48 USCA Case Number 09−60188 for 46 Notice of Appeal filed by Jerry Young, Christy Colley. (SEC) (Entered: 04/02/2009)

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04/20/2009
06/11/2009 03/25/2010 03/25/2010
03/25/2010 03/29/2010

49 Appeal Remark: the court granted motion to consolidate; the briefing notice is being issued in case 09−60188 and resumed in case 08−60941 so that the brief deadlines will be due on the same date re 46 Notice of Appeal : (SEC) (Entered: 04/20/2009)
50 COURT RECORD LOAN FORM re 46 Notice of Appeal : complete appeal handed Hoseman's attorney of record. (SEC) (Entered: 06/11/2009)
51 Copy of Opinion − USCA re 46 Notice of Appeal, 16 Notice of Appeal, AFFIRMED. (SEC) (Entered: 03/26/2010)
52 USCA JUDGMENT as to 46 Notice of Appeal filed by Jerry Young, Christy Colley, 16 Notice of Appeal, filed by Jerry Young, Christy Colley; that the judgment of the District Court is affirmed; that plaintiffs−appellants pay to defendants−appellees the costs on appeal to be taxed by lthe Clerk of this Court. Issued as Mandate: 3/19/10 (SEC) (Entered: 03/26/2010)
53 Appeal Remark re 16 Notice of Appeal, 46 Notice of Appeal : Record/original papers/exhibits to be returned. (SEC) (Entered: 03/26/2010)
54 Appeal Remark re 16 Notice of Appeal, 46 Notice of Appeal : the electronic record recycled. (SEC) (Entered: 03/29/2010)

 
 598 F.3d 184 (2010)

Jerry YOUNG; Christy Colley, Plaintiffs-Appellants,

v.

Delbert HOSEMANN, in his official capacity as the Secretary of State of Mississippi;

Kristin Buse, in official capacity as Election Commissioner of Lee County; Debby

McCafferty, in official capacity as Election Commissioner of Lee County; Harry Grayson,

Jr., in official capacity as Election Commissioner of Lee County; Vivian Burkley, in official

capacity as Election Commissioner in Panola County; Julius Harris, in official capacity as

Election Commissioner in Panola County; Jimmy Herron, in official capacity as Election

Commissioner in Panola County; Bonnie G. Land, in official capacity as Election

Commissioner in Panola County; Ronald McMinn, in official capacity as Election

Commissioner in Panola County; John H. Edwards, in official capacity as Election

Commissioner of Lee County; John M. Wages, in official capacity as Election

185

Commissioner of Lee County, Defendants-Appellees. *185

Nos. 08-60941, 09-60188.

United States Court of Appeals, Fifth Circuit.

February 25, 2010.

186 *186 Nancy G. Abudu (argued), M. Laughlin McDonald, ACLU Foundation, Inc., Atlanta, GA, for PlaintiffsAppellants.

Shawn Stephen Shurden (argued), Jackson, MS, for Hosemann.

William C. Murphree, Michael Dale Chase, Mitchell, McNutt & Sams, P.A., Lit. Counsel, Gary L. Carnathan, Carnathan & McAuley, Tupelo, MS, for Buse, McCafferty, Grayson, Edwards and Wages.

Darrin Jay Westfaul, Westfaul Law Firm, Batesville, MS, for Burkley, Harris, Herron, Land and McMinn.

Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.

187 *187 EDITH H. JONES, Chief Judge:

Jerry Young and Christy Colley, both convicted felons, contend that § 241 of the Constitution of the State of Mississippi grants felons the right to vote in presidential elections. That the state denies them this right, they claim, violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and the National Voter Registration Act. The plain text of § 241, however, belies Young and Colley's proffered interpretation of the provision. We therefore affirm the district court's dismissal of their case.

I. BACKGROUND

Section 241 of the Constitution of the State of Mississippi provides as follows:
Qualification for Electors. Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be

qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise a qualified elector.
Appellants Jerry Young and Christy Colley are felons. They otherwise meet Mississippi's requirements to vote. In 2008, they sought to register to vote in that year's presidential election, but were told that, as felons whose voting rights had not been restored by pardon or legislative enactment, they were ineligible to do so.
On September 12, 2008, Young and Colley filed this lawsuit against the Mississippi Secretary of State and the election commissioners of their counties ("election officials"), seeking a preliminary injunction to allow them to register and to vote. The final clause of § 241 ("except that ... qualified elector"), they argued, is an exception to the bar on felon voting that precedes it and therefore guarantees them the right to vote. Under this interpretation, the state's actions violated state law, the Equal Protection Clause of the Fourteenth Amendment, and the National Voter Registration Act.
The district court denied the plaintiffs' request for a preliminary injunction from the bench, stating that their interpretation of § 241 was not "fair or reasonable." This court subsequently denied the plaintiffs' motion for emergency injunctive relief pending appeal.
In October, the election officials filed a motion to dismiss the complaint for lack of federal jurisdiction and failure to state a claim. FED.R.CIV.P. 12(b)(1), (6). On March 9, 2009, the district court granted that motion as to 12(b)(6), concluding that, as a matter of law, the plaintiffs' complaint was "without merit and should be dismissed with prejudice" because their interpretation of § 241 was "legally incorrect." The court also concluded that "defendants have correctly construed this provision."
The plaintiffs timely appealed.
II. STANDARD OF REVIEW
Whether a district court possesses subject matter jurisdiction is, as question of law, reviewed de novo on appeal. 188 Sandoz v. Cingular Wireless LLC, 553 *188 F.3d 913, 915 (5th Cir.2008). A district court's grant of a motion to
dismiss for failure to state a claim under Rule 12(b)(6) is also subject to de novo review. In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir.2007). The facts pled by the appellants before the district court are uncontested and so not subject to review.
III. DISCUSSION
The appellants raise three issues on appeal. First, they argue that the district court's order dismissing their complaint failed to set forth a basis for the decision sufficient for review by this court. Second, they challenge the state's interpretation of § 241. And third, they propose that, if this court rejects their proffered interpretation of § 241, it abstain under the doctrine of Railroad Commission v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and leave the question of § 241 to Mississippi courts.
A. Jurisdiction
First, however, we address the matter of jurisdiction. The election officials contend that Young's and Colley's federal claims do not establish federal question jurisdiction, 28 U.S.C. § 1331, because they are clearly "immaterial and made solely for the purpose of obtaining jurisdiction or ... wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 681, 66 S.Ct. 773, 90 L.Ed. 939 (1946).
When a federal claim appears on the face of the complaint, "[d]ismissal for lack of subject matter jurisdiction is only proper in the case of a frivolous or insubstantial claim, i.e., a claim which has no plausible foundation or which is clearly foreclosed by a prior Supreme Court decision." Bell v. Health-Mor, 549 F.2d 342, 344 (5th Cir.1977). Further, when a complaint asserts a cognizable federal claim, dismissal for want of jurisdiction is disfavored as a matter of policy:

Judicial economy is best promoted when the existence of a federal right is directly reached and, where no claim is found to exist, the case is dismissed on the merits. This refusal to treat indirect attacks on the merits as Rule 12(b)(1) motions provides, moreover, a greater level of protection to the plaintiff who in truth is facing a challenge to the validity of his claim: the defendant is forced to proceed under Rule 12(b)(6) (for failure to state a claim upon which relief can be granted) or Rule 56 (summary judgment)0907both of which place greater restrictions on the district court's discretion.
Williamson v. Tucker, 645 F.2d 404, 415-16 (5th Cir.1981) (en banc). Therefore, the pleading burden to establish federal question jurisdiction is low: only claims "patently without merit ... justify the district court's dismissal for want of jurisdiction." Suthoff v. Yazoo County Indus. Dev. Corp., 637 F.2d 337, 340 (5th Cir.1981).
In their complaint, the appellants alleged that, because § 241 gives felons the right to vote, the election officials' "action of failing and/or refusing to allow Plaintiffs to register and vote for President and Vice President treats them differently from other qualified voters and violates the Equal Protection Clause." Similarly, they alleged that Mississippi's failure to provide a registration form for federal elections is, if state law permits them to vote in such elections, a violation of the National Voter Registration Act's requirement that each state "shall include a voter registration application form for elections for Federal office as part of an application for a State motor vehicle driver's license." 42 U.S.C. § 1973gg-3.
189 *189 The election officials challenge federal question jurisdiction on three grounds. First, they argue that the appellants' federal claims merely restate their state claim. A disputed application of state law, however, can be the basis for a § 1983 claim and thereby support federal question jurisdiction. Daigle v. Opelousas Health Care, Inc., 774 F.2d 1344, 1347-348 (5th Cir.1985). State law is challenged here, but an Equal Protection challenge to state practices that deny a class of voters the right to participate on an equal basis with other qualified voters is a federal claim, as is a challenge to such a practice under the NVRA. That these claims alleging violations of rights conferred by federal law are predicated on an alleged violation of state law is of no moment.
Second, the election officials argue that the substance of the appellants' federal claims is clearly foreclosed by law and therefore frivolous. As to the Equal Protection claim, the Supreme Court has stated that "the Equal Protection Clause confers the substantive right to participate on an equal basis with other qualified voters whenever the State has adopted an electoral process for determining who will represent any segment of the State's population." Lubin v. Panish, 415 U.S. 709, 713, 94 S.Ct. 1315, 1318, 39 L.Ed.2d 702 (1974); Bush v. Gore, 531 U.S. 98, 104-105, 121 S.Ct. 525, 530, 148 L.Ed.2d 388 (2000) ("Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that of another."). Whatever its merit, the appellants' Equal Protection claim, made through § 1983, is not "clearly foreclosed" by law and so is neither insubstantial nor frivolous. For that reason, it is sufficient to support federal question jurisdiction.
The NVRA claim is likewise not clearly foreclosed. A state is not required to register convicted criminals to vote in an election when those criminals are ineligible to vote "as provided by State law." 42 U.S.C. § 1973gg-6(a)(3)(B). If Mississippi's law does not disenfranchise felons, the state may have violated the terms of the NVRA. That this claim is predicated on a dispute of state law does not undermine federal question jurisdiction.
Finally, the election officials argue that, even if the appellants' federal claims are sufficiently cognizable to support federal question jurisdiction, the Eleventh Amendment nonetheless bars them. This argument is premised on Pennhurst, in which the Supreme Court explained, "A federal court's grant of relief against state officials on the basis of state law, whether prospective or retroactive, does not vindicate the supreme authority of federal law." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S.Ct. 900, 911, 79 L.Ed.2d 67 (1984). Pennhurst, which rejected an injunction entered by a district court that required state officials to conform their conduct to state law, is inapplicable here. The Eleventh Amendment may be relevant to the appellants' state law claim, but it has no relevance to their claims seeking to vindicate federal rights and thereby the supremacy of federal law.
Because the appellants' federal claims are neither frivolous nor clearly foreclosed by law, they support subject matter jurisdiction.

B. Sufficiency of the District Court's Decision
The appellants assert that the district court's order granting the election officials' motion to dismiss under Rule 12 (b)(6) failed to set forth a sufficient basis for the decision, preventing this court from reviewing the judgment.
190 *190 In Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 128 S.Ct. 1140, 1145, 170 L.Ed.2d 1 (2008), the Supreme Court vacated a judgment that relied on a district court order that excluded evidence without stating the basis for doing so. The Tenth Circuit had offered a post hoc rationalization for the district court's ruling. Id. The Supreme Court, however, found no indication supporting either the rationalization or that the district court had evaluated the excluded evidence under FED.R.EVID. 403. Id. at 1146. Accordingly, the Court directed the district court to clarify its evidentiary ruling. Similarly, in Castillo v. City of Weslaco, this court declined to reach the merits of an appeal of a district court's order denying summary judgment because the order "failed to outline the relevant factual scenario and the evidence in the record establishing the relevant conduct." 369 F.3d 504, 507 (5th Cir.2004). "[R]ather than combing through the record ourselves and concluding what factual scenario the district court likely assumed," the court remanded for clarification, while acknowledging that it was "not required to make such a remand." Id.
These cases are inapposite for two reasons. First, an appellate court is not compelled to remand when the basis for a district court's decision is readily inferable, even if tersely stated. Second, these particular cases turned on the district court's unique competence and duty to make determinations concerning the relevance, prejudice, and existence of evidence (e.g., at summary judgment), rather than the application of law. Unlike in Mendelsohn and Castillo, no material facts are at issue in the present case.
The district court's statement of the legal basis for its decision was sufficient. The plaintiffs' interpretation of § 241, it stated, was not "a fair or reasonable construction." It concluded instead "that defendants have correctly construed this conclusion." Accordingly, it dismissed the plaintiffs' claims on that textual ground. The brevity of the district court's order does not impede this court's ability to conduct de novo review.
C. Section 241 of the Mississippi Constitution
Turning to the merits, appellants contend that Section 241, which sets out voter qualifications, contains an explicit exception that allows felons to vote in presidential elections. The state's longstanding interpretation to the contrary is that the bar on felon voting applies equally in all elections.
The parties dispute the meaning of the provision's "presidential election clause":
... except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise a qualified elector.
Appellants0907represented by the ACLU0907concede that Mississippi could constitutionally, and consistently with the federal Voting Rights Act, disenfranchise felons from voting.[1] The question is whether the "except" clause did so.
191 *191 The appellants begin by observing that because there is little legislative history regarding § 241, and because it is unambiguous, its plain text is the only appropriate evidence of its meaning. Notwithstanding this point, they cite legislative history explaining that the 1972 amendment that added the clause was distinct from that amendment's other provision, which lowered the voting age to eighteen following ratification of the TwentySixth Amendment. Therefore, the addition of the clause was not meant merely to keep the state in compliance with changes to the federal law governing voter qualifications. Moreover, the use of the word "except" in the presidential election clause creates an exception to the qualifications that precede it, including the bar on felon voting.
Appellants next assert that the limitation "otherwise a qualified elector" cannot refer back to the definition of "qualified elector" that precedes the presidential election clause, because doing so would render the limitation

superfluous, contrary to our duty to "give effect, if possible, to every clause and word of a statute." Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147, 2 S.Ct. 391, 27 L.Ed. 431 (1883). Rather, the fact that "qualified elector" is used twice in § 241 indicates that there are two classes of qualified electors: one for state elections and one for presidential elections.
Finally, properly construing those two terms0907"except" and "qualified elector" 0907 reveals the plain meaning of the presidential election clause: that the bar on felon voting does not apply to presidential elections. Consequently, individuals who meet the qualifications of § 241 but for the bar on felon voting (i.e., sanity, age, citizenship, residency, and registration) are qualified to vote in presidential elections if they also satisfy any requirements established by Congress.
The appellants offer two more general arguments in support of their interpretation of § 241. The first is that the Mississippi Supreme Court has interpreted the felon bar narrowly, particularly when it has held that the bar does not apply to federal or out-of-state convictions.[2] The second is that the Supreme Court has repeatedly espoused the importance and fundamental nature of the right to vote. See, e.g., Wesberry v. Sanders, 376 U.S. 1, 17, 84 S.Ct. 526, 535, 11 L.Ed.2d 481 (1964) ("No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live."); but see Richardson v. Ramirez, 418 U.S. 24, 55, 94 S.Ct. 2655, 2671, 41 L.Ed.2d 551 (1974) (holding that the Constitution affirmatively sanctions the disenfranchisement of felons).
We need not consider these supporting arguments, however, because the text of § 241 is perfectly clear and perfectly contrary to the construction urged by the appellants. The word "except," as used in the presidential election clause does indeed create an exception. The general rule is that any individual who satisfies the qualifications listed in § 241, and only those qualifications, is a "qualified elector." For presidential elections, however, a voter must "meet[ ] the requirements established by Congress" and be "otherwise a qualified elector." The term "qualified elector," as used at this point, must bear the same definition that it is given in the text that 192 immediately precedes the presidential *192 election clause. If it referred only to requirements established by Congress, rather than those in state law, it would be superfluous. The term is simply not susceptible to the appellants' theory that it somehow incorporates all of the qualifications of state law but for the bar on felon voting.
Further, the appellants' assertion that consistently defining "qualified elector" renders superfluous the final element of the presidential election clause ("... and is otherwise a qualified elector") defies logic. Were this text omitted, only "requirements established by Congress" would limit the franchise, and nothing in federal law prevents non-residents, infants, the insane, and indeed felons from voting in presidential elections, except as pursuant to state or local voting requirements. See 3 U.S.C. §§ 1-21 (presidential elections and vacancies); 42 U.S.C. § 1971(a) (stating that voting rights are defined by state and local law). The term "qualified elector," as previously defined, serves the plain and vital purpose of setting the breadth of the franchise in presidential elections. Far from being superfluous, the absence of this term would radically alter the effect of the presidential election clause.
Despite the appellants' protestations, there is no principled reason that the presidential election clause would grant only felons the right to vote in presidential elections while leaving the other qualifications of § 241 intact. In fact, for what conceivable reason would the State of Mississippi grant any group that it has forbidden from voting in state elections the explicit license to vote in presidential elections? And if, as the appellants' argument logically demands, the presidential election clause imports none of the qualifications that precede it, then the term "qualified elector" becomes a nullity. Appellants' parsing of Section 241 cannot stand against commonsense plain meaning.
D. Abstention and Certification
As a fallback, the appellants suggest that Pullman abstention may be appropriate to resolve uncertainty regarding the meaning of § 241 and to give state courts an opportunity to interpret state law. In turn, the election officials, who argued below in favor of abstention, now propose, as an alternative to abstention, certifying the question of the meaning of § 241 to the Mississippi Supreme Court.

Pullman abstention is justified "`when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.'" Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law Comm., of State Bar of Tex., 283 F.3d 650, 652 (5th Cir.2002) (quoting Hawaii Housing Authority v. Midkiff, 467 U.S. 229, 236, 104 S.Ct. 2321, 81 L.Ed.2d 186 (1984)). Regarding certification, this court has recognized that it is preferable to "the more cumbersome and ... problematic abstention doctrine." Ctr. for Individual Freedom v. Carmouche, 449 F.3d 655, 668 (5th Cir.2006) (quoting Virginia v. American Booksellers Ass'n, 484 U.S. 383, 397, 108 S.Ct. 636, 644, 98 L.Ed.2d 782 (1988)). Neither approach can be justified here, because the text of § 241 is clear and the appellants' proffered interpretation of § 241 does not comport with its text. Accepting the state's longstanding, commonsense interpretation of the provision both avoids the constitutional issue and demonstrates respect for the state's interpretation of its own laws. Further, our decision does not preclude a state court from reaching a contrary holding in some future case. Today's result obviates any need to abstain or certify a question to the Mississippi Supreme Court.
193 *193 IV. CONCLUSION
For the reasons discussed above, the district court's dismissal of the appellants' claims is AFFIRMED.
[1] Indeed, the appellants have repeatedly stated that they seek to vindicate only their "right to vote in certain federal elections absent a clear and valid abridgement of that right by the State." Appellants' Reply Brief at 15. They explicitly acknowledge that a clearly stated bar on felon voting would vindicate this right, id. at 15-17, and that a state has the "authority" under the U.S. Constitution to disenfranchise felons. Oral Argument at 7:30-8:05 (January 6, 2010).
[2] Specifically, the Mississippi Supreme Court has ruled that § 241 and the statutes that implement it do not disenfranchise those convicted of felonies under the laws of other states or under federal law. Mississippi v. McDonald, 164 Miss. 405, 145 So. 508, 511 (1933); Middleton v. Evers, 515 So.2d 940 (Miss. 1987).
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