IN THE SUPREME COURT OF MISSISSIPPI

NO. 2016-IA-00148-SCT
DR. WILLIE WILSON
v.
DELBERT HOSEMANN, IN HIS CAPACITY AS
MISSISSIPPI SECRETARY OF STATE

DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

02/03/2016
HON. WINSTON L. KIDD
HINDS COUNTY CIRCUIT COURT
SAMUEL L. BEGLEY
OFFICE OF THE ATTORNEY GENERAL
BY: HAROLD E. PIZZETTA, III
CIVIL
REVERSED AND RENDERED - 02/25/2016

CONSOLIDATED WITH
NO. 2016-EC-00163-SCT
DR. WILLIE WILSON
v.
DELBERT HOSEMANN, IN HIS CAPACITY AS
MISSISSIPPI SECRETARY OF STATE
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
DISPOSITION:

02/03/2016
HON. WINSTON L. KIDD
HINDS COUNTY CIRCUIT COURT
SAMUEL L. BEGLEY
OFFICE OF THE ATTORNEY GENERAL
BY: HAROLD E. PIZZETTA, III
CIVIL
REVERSED AND RENDERED - 02/25/2016

MOTION FOR REHEARING FILED:

MANDATE ISSUED:
EN BANC.
DICKINSON, PRESIDING JUSTICE, FOR THE COURT:
1.

Dr. Willie Wilson timely submitted his petition and qualification papers to the

Mississippi State Democratic Executive Committee (the Party), to run for President in the
2016 Democratic primary. The Party rejected Dr. Wilsons petition but later reconsidered
and requested the Mississippi Secretary of State to place Dr. Wilsons name on the primary
ballot. But, because absentee and overseas military voting had already begun, the Secretary
of State refused. The Circuit Court of Hinds County refused to grant Dr. Wilson an
injunction and he appealed. Under the particular facts and circumstances of this case, we
find that Dr. Wilsons due process rights were violated, so we reverse and render.
FACTS AND PROCEDURAL HISTORY
The Presidential Primary Ballot Process
2.

The names of individuals who wish to participate in a political partys presidential

preference primary election are placed on the ballot in two ways. First, Mississippi law
requires the Secretary of State to include all candidates who are generally recognized
throughout the United States or Mississippi as [candidates] for the nomination of President
of the United States.1 The Secretary must announce those candidates on or before

Miss. Code. Ann. 23-15-1089 (Rev. 2015).

2

December 15 in the year preceding the presidential election, and he may continue to add
names thereafter.2
3.

Others who wish their names to appear on the primary ballots may file petitions with

that partys state executive committee between January 1 and January 15 of the presidential
election year.3 Their petitions must be
signed by a total of not less than five hundred (500) qualified electors of the
state, or . . . signed by not less than one hundred (100) qualified electors of
each congressional district of the state.4
Then, no more than two working days following the qualifying deadlinethis year by
January 19the party must submit the names of qualified candidates to the Secretary of State
to be added to the States electronic Statewide Election Management System.5 Rather than
notifying Dr. Wilson prior to the January 19 deadline, the Party waited until 1:04 p.m. on
January 20one day after the deadline had passedto notify him that his petition had been
rejected. So, strictly applying the statutes without reading into them any grace period, the
Party did not inform Dr. Wilson that he had not qualified until after the statutory deadline to
submit his name had passed and he had lost the opportunity to timely contest the Partys
decision.

Id.

Miss. Code Ann. 23-15-1093 (Rev. 2015).

Id.

Miss. Code Ann. 23-15-296 (Rev. 2015).

3

4.

Three days later, absentee voting began, and the Secretary of State was required by

federal law to have mailed ballots to members of the military overseas by that time.6 So,
even had the Secretary of State ignored the January 19 deadlineagain, for which
Mississippi law provides no exception Dr. Wilson had only from 1:04 p.m. on Wednesday,
January 20, to some time on Friday, January 22, the day ballots were prepared and printed
for distribution and mailing the following day, to have the Party correct its mistake and notify
the Secretary of State that his name should be included on the ballot. It is this two-day
window of time that is the focus of the case before us today.
Dr. Wilsons Efforts to Have His Name Appear on the Democratic Primary
Ballot
5.

Dr. Wilsons name was not among those placed on the ballot by the Secretary of State

as a candidate generally recognized throughout the United States or Mississippi. So, on

January 14, 2016, he timely filed with the Mississippi Democratic Party a petition to have his
name added to the ballot. His petition complied in every respect with Mississippi law. But
on January 19the statutory deadline for the Party to submit names of qualified candidates
to the Secretary of Statethe Party informed the Secretary of State that Dr. Wilson had not
qualified.7 Rather than informing Dr. Wilson that same day that he had been rejected, the

Each State shall . . . transmit a validly requested absentee ballot to an absent

uniformed services voter or overseas voter . . . in the case in which the request is received
at least 45 days before an election for Federal office, not later than 45 days before the
election. 52 U.S.C.A. 20302(a)(8)(A).
7

Although Dr. Wilsons petition contained more than double the 500 signatures
required by statute, the Party rejected it because it did not include 100 signatures from each
congressional district, as required by the Partys Delegate Selection Plana requirement that
contradicted Mississippi law and had been rejected by an Attorney General opinion on June
4

Party waited until 1:04 p.m. on the following dayJanuary 20to advise him that his
petition had been rejected.
6.

The very next dayThursdayDr. Wilson (a resident of Chicago, Illinois) located

and retained an attorney who appealed to the Party to reconsider its incorrect decision. The
party admitted its mistake to Dr. Wilsons attorney on Monday, January 25three days after
the deadline to inform the Secretary of State to halt the presses and add Dr. Wilsons name
to the ballot.
7.

Although the Party notified Dr. Wilson of its mistake, it did not notify the Secretary

of State, so on Wednesday, January 27eight days after the Secretary of States deadline,
and five days after the deadline to correct mistakesDr. Wilsons attorney threatened a
lawsuit, and the Party responded by hand-delivering a letter to the Secretary of State, stating
that Dr. Wilson had submitted a qualifying petition and asking that his name be included on
the ballot. As a result of his successful appeal to the Party to change its decision, Dr.
Wilsons counsel also emailed the Secretary of States office that day asking that his name
be added to the ballot.
8.

Two days laterJanuary 29the Secretary of States office informed the Party that

it would not add Dr. Wilsons name to the ballot because the Party had failed to submit his
name by the January 19 deadline, as required by law,8 and because sample ballots had been
issued and absentee voting had begun.

5, 2015. Miss. Op. Atty Gen., No. 2015-00158, 2015 WL 4394179 (June 5. 2015).
8

Miss. Code Ann. 23-15-296.

5

The Litigation
9.

That afternoon, Dr. Wilson filed a complaint in the Hinds County Circuit Court,

seeking a writ of mandamus, as well as declaratory and injunctive relief, ordering the
Secretary of State to add his name to the ballot. Dr. Wilson also filed a motion for
preliminary injunction, requesting the same relief and asserting that his name constitutionally
could not be excluded from the ballot.9 On February 1, Dr. Wilson filed an amended
complaint, adding his argument that his constitutional rights to due process, freedom of
speech, and freedom of association were violated. The Secretary of State responded, arguing
that state and federal statutory deadlines precluded the Secretary of State from adding Dr.
Wilsons name to the ballot.
10.

On February 1, the parties appeared for a hearing in the circuit court on Dr. Wilsons

motion for preliminary injunction. At the end of the hearing, the circuit judge stated that he
would email his ruling that afternoon with a written order to follow. Later that afternoon he
sent the parties an email stating:
The Court, after a review of this matter, finds that the Motion for Preliminary
Injunction is not well taken and will be denied. Voting in the Democratic
presidential primary began on January 23, 2016. Prior to initializing the voting
process, the Secretary of State was advised by the Democratic party that Dr.
Wilson did not qualify. Therefore, the Secretary of State, in accordance with
statutory law, finalized ballots and, on January 23, voting began. It is too late
9

Dr. Wilson has expressly waived any claim that his name should be added to
absentee ballots. In his petition for interlocutory appeal, Dr. Wilson stated [t]he Appellant
waives any right he might have to challenge any military or absentee ballots that have been
cast or have been mailed to be completed and returned to the county circuit clerks, on
account of his name not appearing on such ballots. At oral argument, Dr. Wilsons counsel
reiterated that Dr. Wilson seeks an order that the Secretary of State add his name to the
electronic Statewide Election Management System.
6

to repeat the process. Any such change in this process would be in violation of
the statutory deadlines set forth in Mississippi and federal law. The plaintiff
has not met the requirements for a preliminary injunction and the same is
hereby denied.
11.

So the next dayFebruary 2Dr. Wilson filed a notice of appeal, and the following

dayFebruary 3he filed a Petition for Expedited and Emergency Consideration of

Appeal, For Permission to Appeal of [sic] Interlocutory Order, and for Mandamus Adding
Appellants Name to the Ballot. This petition argued that the failure to add his name to the
ballot violated both his constitutional rights and those of the signatories to his petition. On
February 4, the circuit judge entered his written order, repeating his ruling from the email.
12.

Dr. Wilsons appeal of the circuit courts order denying his motion for a preliminary

injunction technically is interlocutory in nature. But applying our precedent in Gibson v.

Manuel,10 we find the circuit judges order effectively leaves the parties with little else to
litigate in the circuit court. So we grant Dr. Wilsons petition for interlocutory appeal,
consolidate the records from the direct and interlocutory appeals, reverse and render
judgment in Dr. Wilsons favor, order that the Secretary of State add Dr. Wilsons name to
Mississippis electronic Statewide Election Management System, and dismiss the direct
appeal as moot.
ANALYSIS
13.

Dr. Wilson argues that, because he met the statutory requirements to qualify to run in

the Mississippi Democratic Presidential Preference Primary Election, his due process and
First Amendment rightsas well as those of the signatories to his qualifying petitionhave
10

Gibson v. Manuel, 534 So. 2d 199, 2001 (Miss. 1988).

7

been violated by the exclusion of his name from the ballot. We conclude that the Partys
failure to timely inform Dr. Wilson that it found his petition insufficient and to timely
respond to his attorneys request to reconsider, coupled with the January 19 and 23 statutory
deadlines to submit names and send ballots to overseas and military voters, denied Dr.
Wilson a meaningful opportunity to be heard by the Party and deprived him of due process
of law.
14.

In Meeks v. Tallahatchie County, we considered a political candidates legal

challenge to a political partys determination that he had not qualified to run for office.11
There, Eddie Meeks sought the Democratic Partys nomination for justice court judge in
Tallahatchie County.12 At the time, Meeks served as Chairman of the Tallahatchie County
Elections Commission.13 At a meeting to consider candidate certification, the Tallahatchie
County Democratic Party Elections Committee determined that Meeks was ineligible to run
and refused to certify him as a candidate.14
15.

Meeks, upon hearing that the Party had voted to deny his certification, appeared

before the committee and argued that he could be certified as a candidate.15 The Party stood

11

Meeks v. Tallahatchie Cty., 513 So. 2d 563 (Miss. 1987).

12

Id. at 564.

13

Id.

14

Id.

15

Id.
8

by its decision, and Meeks sought an order from the Tallahatchie County Circuit Court to
have his name placed on the ballot.16 The circuit judge denied relief and Meeks appealed.17
16.

On appeal, in addressing Meekss argument that the Party had denied him due process

of law, we held:
Without doubt, election to public office is a public function and any integral
part of that function must be constitutional. The nomination process may
appear to be more a private than a governmental function because it is
conducted by political parties. Appearances notwithstanding, our law
recognizes that the selection of party nominees by primary elections is an
integral part of the entire election process. . . . [T]he primary election process
is sufficiently state action that persons affected by it and participating in it
have available due process protections.18
17.

Applying that principle, we held that:

[W]hen one files the proper qualifying papers and pays the requisite filing fee
to become a candidate for public office, neither the state nor, in the case of a
primary election, a political party may arbitrarily or capriciously deprive him
or her of a place on the ballot. [The candidate is] entitled to due process
protections on two levels. First, he [is] entitled to the opportunity to be heard.
Second, he [is] entitled that his name not be finally stricken from the ballot
except that result be required by law.19

18.

And we made it clear that:

16

Id.

17

Id.

18

Id. (citing Fanning v. State, 497 So. 2d 70, 72 (Miss. 1986); Miss. State Bd. of
Election Commrs v. Meredith, 301 So. 2d 571, 573 (Miss.1974); Terry v. Adams, 345 U.S.
461, 73 S. Ct. 809, 97 L. Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757,
88 L. Ed. 987 (1944); United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368
(1941)).
19

Meeks, 513 So. 2d at 565.

9

[w]here the executive committee decides that a person is not eligible, however,
and where that person wishes to be heard regarding the matter, the executive
committee, as a matter of due process, is required to allow the disqualified
candidate a reasonable opportunity to present his case.20
19.

Meeks instructs us on Dr. Wilsons claim in two ways. First, because the Party

initially determined his petition did not qualify him to run in the primary election, Meeks
obligated the Party to provide Dr. Wilson a reasonable opportunity to present his case.21
That did not occur. And while the Party ultimately listened to Dr. Wilsons attorney and
reversed its decision, it did so too late to provide meaningful due process protection.
20.

Granting due process after it is too late is not due process. As the United States

Supreme Court has explained, [i]f the right to notice and a hearing is to serve its full
purpose, then, it is clear that it must be granted at a time when the deprivation can still be
prevented.22 Here, as a result of extremely tight statutory deadlines and the Partys failure
to timely reach a correct decision, Dr. Wilson was provided no such opportunity.
21.

Dr. Wilson timely filed his petition one day early, on January 14. Under Section 23-

15-296, the Mississippi Democratic Party had until Monday, January 19, to submit Dr.
Wilsons name to the Secretary of State as a qualified candidate. Prior to that day, the Party
provided Dr. Wilson no indication that it would deny his petition. On January 19, the Party
informed the Secretary of States office that one candidateRoque De La Fuentehad

20

Id.

21

Id.

22

Fuentes v. Shevin, 407 U.S. 67, 81, 92 S. Ct. 1983, 1994, 32 L. Ed. 2d 556 (1972)
(emphasis added).
10

qualified by petition, but that Dr. Wilson had not. The Party waited until 1:04 p.m. the
following day to inform Dr. Wilson. At this point, when the Party first informed Dr. Wilson
that his petition had been deemed inadequate, the statutory deadline to submit names for the
ballot already had passed. In other words, Dr. Wilson was not granted [an opportunity to
be heard] at a time when the deprivation can still be prevented because the Party did not
inform Dr. Wilson that he had not qualified until after the statutory deadline to submit his
name to the Secretary of State had passed.
22.

Even then, Dr. Wilson took immediate action to correct the Partys error by hiring an

attorney who, on January 22, presented his case to the Party. But rather than immediately
reviewing the matter and reversing its decision in time to have the ballots corrected before
mailing on January 23,23 the Party once again denied Dr. Wilson a meaningful opportunity
to be heard. The Party waited until Monday, January 25after the ballots were mailed and
absentee voting had begunto admit its mistake to Dr. Wilsons attorney. And even then,
the Party waited two more days to inform the Secretary of State.
23.

So, in sum, Meeks required the Party to provide Dr. Wilson a meaningful opportunity

to present his case. And in order for the opportunity to be meaningful, it must have occurred
when the harmleaving Dr. Wilson off the ballotstill could be remedied. The Partys

23

Once again, this assumes the Secretary of State would have ignored the January 19
deadline, which no Mississippi law permits him to do. Under Mississippi law, Dr. Wilson
was deprived of due process when the January 19 deadline passed without his being
provided an opportunity to present his case. We discuss Dr. Wilsons efforts after January
19 simply to illustrate that he diligently attempted to litigate his case as soon as the Party
provided him an opportunity to do so.
11

delay, coupled with the January 19 and 23 deadlines, denied Dr. Wilson that chance. In other
words, under Meeks, Dr. Wilson was denied due process of law.
24.

But Meeks is instructive for a second reason. At oral argument, the attorney for the

Secretary of State argued that when Dr. Wilson learned the Party had rejected his petition on
Wednesday afternoon, he had until Friday afternoon to go into the court system; and that by
not doing so, he waived any remedy to the violation of his constitutional rights.24 Mississippi
law holds otherwise.
25.

As explained above, Meeks also involved a political partys determination that a

candidate had not qualified for the primary.25 There, discussing the candidates challenge,
this Court held:
Where the executive committee decides that a person is not eligible, however,
and where that person wishes to be heard regarding the matter, the executive
committee, as a matter of due process, is required to allow the disqualified
candidate a reasonable opportunity to present his case.26
26.

We certainly cannot now fault Dr. Wilson for following the very procedure that we

articulated in Meeks. Also, Sections 23-15-923 and 23-15-961both of which govern

election contests and an opponents challenge to a political partys eligibility
determinationsrequire that a contesting candidate seek recourse with the party executive

24

Although it is not dispositive in this case, we note here that it would require
enormous optimism for one to conclude that Dr. Wilson (a Chicago resident) could hire
Mississippi counsel who, in turn, could then research the law, gather evidence, draft
pleadings, obtain a hearing and decision from the Hinds County Circuit Court and a reversal
from this Court, all in approximately two days.
25

Meeks, 513 So. 2d at 563.

26

Id. at 565.
12

committee before seeking a judicial remedy. Section 23-15-1087 states that [e]xcept as
otherwise provided in this chapter, the laws regulating primary and general elections shall
in so far as practical apply to and govern presidential preference primary elections. So, both
caselaw and statutes required Dr. Wilson first to seek a remedy from the Party. He did so but
was denied a meaningful opportunity to be heard.
27.

Remarkably, the dissenting Justiceswhile conceding that Dr. Wilsons rights were

violatedwould provide him relief only had he ignored our precedent in Meeks and
proceeded directly into the courts, or sought a formal hearing with the Party. Chief Justice
Waller criticizes Dr. Wilsons counsels efforts to persuade the Party to change its decision,
labeling his attempts to negotiate and work things out as haggling.27 We find this
criticism unjustified, particularly in light of counsels immediate and concerted efforts to
persuade the Party to change its decision in the two-day snippet of time available to him.
28.

Meeks includes no requirement that counsel seek a formal hearing. Indeed, the due

process right addressed in Meeks is not the right to procedural formality, but rather the right
to be heard in a meaningful way28 at a time when redress can be provided.29 Dr. Wilson

27

Dr. Wilsons attempts to haggle with the Party were hardly futile, as
characterized by Chief Justice Wallers dissent. Dr. Wilson successfully persuaded the Party
to change its decision.
28

Id. (True, the hearing afforded Meeks was somewhat unorthodox in the sense that
Meeks informally got word that the Committee was meeting, had acted negatively upon his
candidacy, and that he then went uninvited to the meeting. No matter. What is
importantindeed, outcome determinativeis that Meeks appeared before the Committee
and fully presented his views and his case.).
29

Fuentes, 407 U.S. at 81 (If the right to notice and a hearing is to serve its full
purpose, then, it is clear that it must be granted at a time when the deprivation can still be
13

sought the opportunity to be heardexactly as this Court required in Meeks. As soon as he

knew the Party had rejected his petition, he retained an attorney who immediately sought
relief, first from the Party, and then from the courts.
29.

Further, Chief Justice Wallers dissent requirements of Dr. Wilson during the two-day

period between January 20 and January 22 border on optimistic fantasy. To suggest that Dr.
Wilsons counsel was less than diligentnegligent, reallyfor not doing more than he did
during that two-day time frame, strikes us as unfair for several reasons.
30.

First, the Partys actions and the statutory procedures for securing a place on the

primary ballot provided Dr. Wilson no chance to do so. The deadline for the Party to notify
the Secretary of State of the names of qualified candidates was January 19, and that deadline
passed before Dr. Wilson even received notice that the Party had rejected his petition.
Mississippi statutory law provides no exception for the January 19 deadline. So no statutory
remedy was available for Dr. Wilsononce he was rejectedever to get on the ballot.
31.

The dissents views that Dr. Wilsons counsel should have ignored Meeks and gone

directly into the courts ignore the practical reality that, even had Dr. Wilson filed his
complaint on January 20, he still would not have been on the ballot by January 23. Dr.
Wilson did not learn of his rejection until 1:04 p.m. on January 20. So, between 1:04 p.m.
on Wednesday afternoon and sometime on Fridayin time to get to the printerDr. Wilson,
who lives in Chicago, would have had to employ Mississippi counsel, file a complaint in the
Hinds County Circuit Court, participate in a hearing, obtain the trial-court ruling, file an

prevented.) (emphasis added).

14

appeal, and have his appeal heard and decided by this Court. No member of this Court, nor
the bench and bar at large, can believe this could have happened. So, even had Dr. Wilson
skipped any attempt to have the Party change its decision and gone directly into the courts,
the ballots still would have been mailed out on January 23 without his name, and we would
be right where we are today.
32.

The practical result of the dissenting justices view of the requirements for a

wrongfully rejected candidate to seek and obtain relief for a violation of his or her
constitutional rights, would be effectively granting the power to political parties to prevent
any person they desire from qualifying as a candidate.
33.

We note that the dissent by Chief Justice Waller repeatedly states that Dr. Willie

Wilson waited until January 29, 2016, to raise a formal objection to the Secretary of States
refusal to place his name on the Democratic primary ballot. Since January 29 was the very
day the Secretary of State refused to put Dr. Wilsons name on the ballot, we fail to see how
he could have objected earlier.
34.

The dissents criticism of Dr. Wilson for not suing the Democratic Party deserves little

attention. The Democratic Party could afford Dr. Wilson no remedy. It already had agreed
that Dr. Wilsons name should be on the ballot and had asked the Secretary of Statewho
controlled the electronic Statewide Election Management Systemto add Dr. Wilsons
name. Dr. Wilsons constitutional rights were violated, and he was entitled to file suit
against the party in a position to grant him relief.

15

35.

This is not unusual.

For instance, in Gideon v. Wainwrighta landmark

constitutional-law decisionCircuit Judge Robert McCrary violated Clarence Earl Gideons

constitutional rights by refusing to appoint him counsel. Gideon sought a remedy for the
constitutional violationnot by suing Judge McCrary, who could provide him no
remedybut by suing the party who was in a position to provide him a remedy for the
constitutional violation.30
36.

And as a final note, we point out that the defendant in Gideonthe Secretary of the

Florida Department of Correctionswas a proper defendant who lost in the litigation, even
though he had followed all Florida statutes and United States Supreme Court precedent. So
because only the Secretary of State could provide Dr. Wilson a remedy for the constitutional
violation, we must reject the dissents suggestion that he should have sued the Democratic
Party.
37.

Having concluded that Dr. Wilson was denied due process, we now must consider the

appropriate remedy. In both this Court and the circuit court, Dr. Wilson has asked that the
Secretary of State to be ordered to add his name to the States electronic Statewide Election
Management System. He has waived any right to challenge any ballot already printed or
issued.
38.

The Secretary of State, contending that we should grant no relief, argues that federal

law prohibits inconsistent ballots, so this Court cannot honor Dr. Wilsons waiver, and that

30

Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).
16

federal statutory deadlines preclude issuing new absentee ballots at this time. We conclude
that neither federal nor state law precludes us from honoring Dr. Wilsons waiver.
39.

As a general matter, only injunctive relief can remedy Dr. Wilsons injury. For

instance, in Wallace v. Election Commission of the Town of Edwards, this Court found that
the appropriate remedy when a qualified candidate was excluded from a ballot was a writ of
mandamus ordering that his name be added to the ballot.31 Here, the dispute centers on
whether federal law precludes this Court from applying that remedy.
40.

The Secretary of State argues that the United States Court of Appeals for the Fourth

Circuit, in Perry v. Judd, held that federal lawspecifically United States Code Title 52,
Section 20302requires states wishing to add new candidates to the ballot to issue all-new
absentee ballots to overseas and military voters.32 We do not agree. Section 20302 was not
at issue in Perry. That statute was mentioned by the court when it explained that it
considered the case on an expedited basis because the forty-five-day deadline to mail
absentee ballots under Section 20302 soon would arrive.33
41.

While the Fourth Circuit did state that, in that case, the State would be required to

issue new absentee ballots, it did not analyze Section 20302, nor did it cite any opinion

31

Wallace v. Election Commn of the Town of Edwards, 118 So. 3d 568, 570 (Miss.

32

Perry v. Judd, 471 Fed. Appx. 219 (4th Cir. 2012). See 52 U.S.C. 20302 (2009)

33

Id. at 220.

2013).

17

discussing or relying on Section 20302.34 We cannot agree that the Fourth Circuit found that
Section 20302 required new absentee ballots in the case before us today.
42.

We are more persuaded by the United States District Court for the Middle District of

Pennsylvania in United States v. Pennsylvania.35 There, Ralph Nader and Peter Miguel
Camejo had been candidates for President and Vice President of the United States when
Pennsylvania prepared and mailed absentee ballots under Section 20302.36 But their
qualifications to run were subject to a subsequent legal challenge, and their names were
ordered off the ballot.37 The United States Department of Justice then sued Pennsylvania,
seeking an order for the State to issue new ballots, without Naders and Camejos names, to
all voters who received ballots under Section 20302.38 The United States District Court for
the Middle District of Pennsylvania denied the request, explaining that:
The Government contends that the fact that UOCAVA39 protected individuals
have received ballots including the names of Nader and Camejo rather than the
final ballot as certified on October 13, 2004, that excludes those names
represents an UOCAVA violation. As the Commonwealth Defendants note,
this fact does not ipso facto support a finding that the Commonwealth is in
violation of UOCAVA. As UOCAVA does not govern ballot content, the

34

Id. at 227.

35

United States v. Pennsylvania, 2004 WL 2384999 (M.D. Penn. Oct. 20, 2004).

36

Id. at *1.

37

Id.

38

Id.

39

UOCAVA stands for Uniformed and Overseas Citizens Absentee Voting Act.
See 52 U.S.C. 20302.
18

burden is on Plaintiff to establish that the alleged ballot defect undermines the
right of UOCAVA voters to cast their ballots.40
43.

We agree with the assessment by the district court that Section 20302 does not

govern ballot content. Nowhere does the statute require that subsequent ballots be issued
when a ballot change occurs. Rather, the statute focuses on the right of voters timely to
receive and submit ballots.41
44.

In fact, the District Court focused its inquiry on the fact that UOCAVA voters will,

like all other absentee voters in Pennsylvania, vote the ballot that was legally correct at the
time they requested and were provided absentee ballots.42 It also noted that there was no
indication that UOCAVA voters irreparably would be harmed by casting the same ballot as
every other absentee voter registered in the state who received a similar ballot.43 We craft
a similar remedy here by honoring Dr. Wilsons waiver and ordering that his name be
included in the electronic Statewide Election Management System so that it may be made
available through electronic voting machines on March 8.
CONCLUSION
45.

We grant Dr. Wilsons petition for interlocutory appeal and order the Secretary of

State to add Dr. Wilsons name to the electronic Statewide Election Management System,
so that it may be made available through electronic voting machines for the Democratic

40

Id. at *4.

41

52 U.S.C. 20302.

42

United States v. Pennsylvania, 2004 WL 2384999, at *4 (emphasis added).

43

Id.
19

primary on March 8. We also order that any voting precincts using paper ballots for the
March 8 election prepare ballots that include Dr. Wilson as a candidate. However, Dr.
Wilsons name shall not be added to any absentee ballots prepared or issued to voters. In this
way we insure that military and overseas voters use the same ballot as local absentee voters.
Finally, we accept Dr. Wilsons express waiver of any right to challenge absentee ballots
going forward. No motion for rehearing will be allowed and the Clerk of Court is directed
immediately to issue the mandate.
46.

REVERSED AND RENDERED.

RANDOLPH, P.J., KITCHENS, KING, COLEMAN AND BEAM, JJ.,

CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY LAMAR AND MAXWELL, JJ. MAXWELL, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.
WALLER, CHIEF JUSTICE, DISSENTING:
47.

States have important interests in protecting the integrity of their political processes

. . . [and] ensuring that their election processes are efficient . . . . Clements v. Fashing, 457
U.S. 957, 965, 102 S. Ct. 2836, 73 L. Ed. 2d 508 (1982). As time passes, the states interest
in proceeding with the election increases in importance as resources are committed and
irrevocable decisions are made, and the candidates claim to be a serious candidate who has
received a serious injury becomes less credible by his having slept on his rights. Kay v.
Austin, 621 F.2d 809, 813 (6th Cir. 1980). Voting for the Democratic Presidential Primary
began in Mississippi on January 23, 2016. Dr. Willie Wilson waited until January 29, 2016,
to raise a formal objection to the Secretary of States refusal to place his name on the
Democratic primary ballot. The majoritys remedy ordering Wilsons name to be placed
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on the ballots to be cast on March 8, 2016, all while accepting absentee ballots which exclude
Wilson cannot be reconciled with the States interest in ensuring the integrity of the
election process. For this reason, I cannot join the majority.
48.

Federal law mandates that absentee ballots for uniformed services voters and overseas

voters (UOCAVA voters) be transmitted forty-five days before a scheduled primary

election. Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. 20302(a)(8)
(2009). Mississippis presidential preference primary election will be held on March 8, 2016.
Thus, in order to comply with the federal mandate, Mississippi transmitted ballots to
UOCAVA voters on January 23, 2016. To aid compliance with the federal mandate,
Mississippi requires political parties to inform the Secretary of State of qualifying candidates
for a presidential preference primary by January 19. See Miss. Code 23-15-296, 23-151093 (Rev. 2015). This quick process provides little room for delay.
49.

In todays case, the Mississippi Democratic Party informed the Secretary of State on

January 19, 2016, that Wilson did not qualify for the presidential preference primary. The
party informed Wilson of its decision on January 20, 2016. With the well-known January 23,
2016, deadline quickly approaching, Wilson opted to negotiate and tried to work things
out with the Democratic Party. Instead of pursuing a formal hearing with the party or
seeking immediate judicial intervention, Wilson continued to haggle with the party.
50.

There is no dispute that Wilson had at one time the right to be on the Democratic

primary ballot. See Meeks v. State, 513 So. 2d 563, 564-65 (Miss. 1987) ([W]hen one files
the proper qualifying papers and pays the requisite filing fee to become a candidate for public

21

office, neither the state nor, in the case of a primary election, a political party may arbitrarily
or capriciously deprive him or her of a place on the ballot.). See also Kay, 621 F. 2d at 811
([T]he right to be a candidate has been recognized as an important . . . interest.).
51.

Wilsons right, however, must be considered along with the states compelling

interest in maintaining the stability of its electoral system. Id. And [a] states interest in
proceeding with an election increases as time passes, decisions are made, and money is
spent. Nader v. Blackwell, 230 F. 3d 833, 835 (6th Cir. 2000).
52.

In order to balance these two interests, political candidates must pursue claims

diligently. Kay, 621 F. 2d at 813. See also Fulani v. Hogsett, 917 F. 2d 1028, 1031 (7th Cir.
1990) (To prevent prejudice to the state, political candidates claim must be expressed
expeditiously.). Although candidates who take proper steps to run for political office have
a right to be on the ballot, there is no constitutional right to procrastinate. Dobson v.
Dunlap, 576 F. Supp. 2d 181, 183 (D. Me. 2008).
53.

[T]here must be a substantial regulation of elections if they are to be fair and honest

and if some sort of order, rather than chaos, is to accompany the democratic processes.
Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983) (citing
Storer v. Brown, 415 U.S. 724, 730, 94 S. Ct. 1274, 1279, 39 L. Ed. 2d 714 (1974)). To
protect the states interest in providing a fair democratic process, reasonable and
nondiscriminatory restrictions are justifiable. Id.; see also Williams v. Rhodes, 393 U.S. 23,
43, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968) ([T]he State may limit the right of political
association by invoking an impelling policy justification for doing so.). Such restrictions

22

are even more crucial in a presidential primary election, when the outcome has an impact
beyond [a states] own borders. Id. at 795, 103 S. Ct. 1564. Moreover, the states interest
in ensuring the uniformity, fairness, accuracy, and integrity of elections aids compliance
with the strict forty-five-day deadline for UOCAVA voters. Perry v. Judd, 471 Fed. Appx.
219, 227 (4th Cir. 2012).
54.

Considering the states important interest in protecting the integrity of the election

process, courts routinely have denied relief to candidates seeking ballot access. Often, courts
deny relief based on the candidates delay in challenging a ballot. In Westerman v. Nelson,
409 U.S. 1236, 1236-37, 93 S. Ct. 252, 34 L. Ed. 2d 207 (1972), Justice Douglas recognized
that the petitioners complaint may have merit, but denied relief solely on timeliness: in
fairness to the parties I must deny the injunction, not because the cause lacks merit but
because the orderly election process would likely be disrupted by so late an action. The time
element has plagued many of these election cases; but one in my position cannot give relief
in a responsible way when the application is [as] tardy as this one.
55.

In Dobson, an independent candidate and voters supporting the candidate challenged

Maines statutory election deadlines and sought an injunction. Dobson, 576 F. Supp. 2d at
182. In denying the petitioners last minute challenge, the district court considered the
prejudicial effect of an untimely ballot change. Id. at 187-88. The court noted that the
Secretary of State had taken steps to prepare and print ballots, and that any injunction at that
point could run the risk of restricting the voting rights of other voters, including overseas
members of the military. Id. at 188. Ultimately, the court found that prejudice to the

23

Secretary in stopping the printing presses is manifest and denied relief. Id. In Kay, the
Michigan Secretary of State refused to place a presidential primary candidate on the ballot,
despite the candidates assertion that he met the minimum statutory requirements to run as
a nationally recognized candidate. Kay, 621 F. 2d at 810. In affirming the district courts
denial of relief, the Sixth Circuit found that the candidate waited too long to challenge the
Secretary of States decision. Id. at 813.
56.

In addition to charging candidates with the duty expeditiously to pursue ballot

challenges, courts also require candidates to be aware of the statutory deadlines. See
Fishman v. Schaffer, 429 U.S. 1325, 1327, 97 S. Ct. 14, 50 L. Ed. 2d 56 (1976) (denying
relief, in part, because candidate was aware of statutory requirements and could have
brought suit earlier); Perry v. Judd, 471 Fed. Appx. 219, 224-25 (4th Cir. 2012) (denying
candidates eleventh hour challenge to Virginia election laws which have been on the
books for years and noting Movants delay was not the result of a lack of notice or clarity
on the part of Virginia . . . . If Movant believed this provision violated the Constitution, he
could and should have acted expeditiously); Reform Party of Alabama v. Bennett, 18 F.
Supp. 2d 1342, 1351-52 (M.D. Ala. 1998) (denying constitutional claim due to candidates
failure to ascertain political partys status as major or minor party and holding candidates
are charged with knowledge of the law and are required to comply with its terms).
57.

Todays case is similar to Esiason v. Washington County Board of Elections, 220

A.D. 2d 878, 878 (N.Y. App. Div. 1995), where, due to a misunderstanding between the
Commissioner of Elections and the candidate, the candidate untimely filed certificates of

24

nomination. Despite the candidate having a sympathetic case, the New York court denied
relief: relaxing the mandatory filing requirements would not only render the various
deadlines set forth in the Election Law utterly meaningless, but would also interject
confusion and inequality into a process where the Legislature plainly intended stability and
uniformity to prevail. Id. at 879. The court further held the mere fact that petitioners were
not directly responsible for the failure to file relevant certificates in a timely fashion is of no
moment. Id.
58.

Wilsons case, too, is sympathetic. The Mississippi Democratic Party now admits that

Wilson met Mississippis statutory requirements for inclusion on the presidential preference
primary ballot. Wilson, however, is not without fault. Mississippis deadline to comply with
UOCAVA was January 23, 2016. Wilson waited until January 29, 2016, to lodge a formal
complaint challenging the Secretary of States decision not to include Wilson on the ballot.
Seemingly lost in Wilsons pleadings is recognition that the Mississippi Democratic Party
not the Secretary of State incorrectly decided to exclude Wilson from the ballot. Wilson
did not name the Democratic Party as a party in todays case. And, while Wilson had the
right to challenge the partys decision through a formal hearing, he chose a different route.
See Meeks, 513 So. 2d 563.
59.

Wilson should have sought judicial intervention with the Secretary of State rather than

engaging in the clearly futile attempt to negotiate with the Party prior to the Secretary of
States qualification deadlines. Cf. Miss. Dept of Envtl. Quality v. Weems, 653 So. 2d 266,
(Miss. 1995) (quoting Ellington & Assocs., Inc., et al. v. Keefe, 410 N.W.2d 857, 860 (Minn.

25

App. 1987)) ([T]he doctrine of exhaustion of administrative remedies does not require that
futile attempts at administrative relief be taken before seeking a judicial determination.).
The deadlines imposed by federal law and the States interest in ensuring the uniformity,
fairness, accuracy, and integrity of elections leave no room for casual negotiations, and
Wilson is charged with knowledge of these deadlines. By waiting to raise a formal challenge
to his exclusion from the ballot, Wilson allowed the strictly imposed federal deadline to pass
and Mississippis election machinery to begin running. Wilson and the majority sidestep
these facts by waiving any challenge to Wilsons name being on UOCAVA or other
absentee ballots. Now, UOCAVA and absentee voters will receive different ballots than
those cast on March 8, 2016. This remedy wholly fails to recognize the States interest in
regulating elections and the resulting prejudice from a late ballot change. The practical effect
of the majoritys opinion is to invalidate Mississippis candidacy deadlines, as the tardiness
of a partys internal processes or the candidates actions to seek redress now are of no
moment.
60.

For these reasons, I cannot join the majority.

LAMAR AND MAXWELL, JJ., JOIN THIS OPINION.
MAXWELL, JUSTICE, DISSENTING:

61.

All justices agree the party wrongly excluded Wilson from the ballot, but the remedy

for this error is the sticking point. While I do not doubt the majoritys sincere belief that
complying with this courts order will not place the Secretary of State in violation of
UOCAVA and other federal election laws, that issue remains to be seen. And this courts

26

order in no way shields the Secretaryor the validity of the Mississippis Democratic
primary itselffrom federal challenge. Also, adding a candidate midstream, causing
absentee voters to choose from different pools of candidates than those in ballots cast on
March 8, 2016, has potential to disenfranchise voters and begs the question of just how late
a candidate can be added. So I do not join the majority. I instead agree with the gist of Chief
Justice Wallers point that Dr. Wilsons delay while trying to negotiateinstead of seeking
a formal hearing with the party, then immediate judicial interventionkeeps him from
receiving the remedy he seeks.
62.

As Chief Justice Waller correctly notes in his dissent, the entity we all agree violated

Wilsons due-process rights is not even named as party to this lawsuit. For this reason, the
majoritys heavy reliance on Meeks v. Tallahatchie County, 513 So. 2d 563 (1987), seems
misplaced. In Meeks, unlike here, the would-be candidate sued the Mississippi Democratic
Executive Committee. Id. at 564. So this courts instructions were directed to the state
executive committees on what they must do to provide potential candidates due process. Id.
at 565. This court ultimately concluded, if there were any procedural irregularities, they were
harmless because the candidate was in fact disqualified. Id. Thus, Meeks did not consider
what would be an appropriate remedy for an otherwise qualified candidate who did not learn
about his disqualification until after the deadline to inform the Secretary of State. And it
certainly did not consider the States competing interest in orderly elections as a reason to
deny a candidates request to be placed on this ballot.

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63.

Nor do I see how Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799

(1963), a habeas corpus case involving a criminal defendants right to counsel, is relevant.
To suggest that the Secretary of States enforcement of a known and necessary ballot
deadline is akin to the atrocity of wrongful incarceration is, to put it mildly, quite a stretch.
This is not to downplay Dr. Wilsons due-process rights. But as the Chief Justice pointed out
in his dissent, Dr. Wilson had been in a position to protect his rights prior to January 23 but
chose not to do so.
64.

I further disagree with the majoritys ordering any voting precincts using paper

ballots for the March 8 election prepare ballots that include Dr. Wilson as a candidate. I
point out that Dr. Wilson did not ask for this remedy. Instead, his only request was that the
Secretary of State be ordered to add his name to the electronic ballot. And even the majority
acknowledges Dr. Wilson has waived any right to challenge any ballot already printed or
issued. So I do not see how this part of the order squares with Dr. Wilsons clear waiver.
Instead, it only seems to create potential confusion for the county Democratic executive
committees and the reported seventy-eight of eighty-two local election precincts that already
have started printing ballots to be used on March 8.
65.

For these reasons, I dissent.

WALLER, C.J., JOINS THIS OPINION.

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