IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI

2014-EC-01247-SCT
CHRIS McDANIEL APPELLANT
v.

THAD COCHRAN APPELLEE
APPEAL FROM THE CIRCUIT COURT OF JONES COUNTY, MISSISSIPPI
HONORABLE W. HOLLIS McGEHEE, SPECIALLY APPOINTED
CIRCUIT JUDGE PRESIDING
BRIEF OF APPELLANT
Mitchell H. Tyner, Sr., MSB No. 8169
TYNER LAW FIRM, P.A.
5750 I-55 North
Jackson, Mississippi 39211
Steve C. Thornton, MSB No. 9216
ATTORNEY AT LAW
P. O. Box 16465
Jackson, Mississippi 39236
ATTORNEYS FOR CHRIS McDANIEL
Submitted September 18, 2014
1
E-Filed Document Sep 18 2014 20:26:54 2014-EC-01247-SCT Pages: 49
CERTIFICATE OF INTERESTED PERSONS
Undersigned counsel of record certifies that the following listed persons have an interest
in the outcome of this case. These representations are made in order that the justices of the
Supreme Court and/or the judges of the Court of Appeals may evaluate possible disqualification
or recusal.
1. W. Hollis McGehee, Specially Appointed Judge, Circuit Court, Jones County,
Mississippi.
2. Chris McDaniel, Appellant
3. Mitchell H. Tyner, Sr., Attorney for Appellant
4. Steve C. Thornton, Attorney for Appellant
5. Thad Cochran, Appellee
6. Phil B. Abernethey, Attorney for Appellee
7. Mark Garriga, Attorney for Appellee
8. Butler Snow Omara Stevens & Cannada, Attorneys for Appellee
9. Mississippi Republican Party
s/ Steve C. Thornton
Steve C. Thornton
ATTORNEY FOR CHRIS McDANIEL
2
TABLE OF CONTENTS
Page
CERTIFICATE OF INTERESTED PERSONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
STATEMENT OF ISSUES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
I. Election Code 23-15-923 does not impose a specific time requirement for filing
a complaint with a political partys state executive committee to contest a
primary election for state-wide office. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
II. Other sections of the Election Code impose many deadlines but none on filing a
complaint to contest a primary election for state-wide office with a political
partys state executive committee. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
III. The absence of a deadline in Election Code 23-15-923 is evidence of intent
by the Legislature that no specific time requirement be imposed. . . . . . . . . . . . . . . . 20
IV. The Mississippi Legislature expressed a clear intent to repeal former Mississippi
election laws regulating primary elections. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
V. The Election Code made material changes in Mississippis election statutes and
specifically to the predecessors of 23-15-923. . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
VI. Kellum v. Johnsons interpretation of former election statutes (now repealed) is
not binding precedent on the interpretation of the current Election Code.. . . . . . . . . 30
VII. Kellum v. Johnson was inconsistent with well-settled principles of law when it
was decided. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
VIII. If Kellum v. Johnson had any precedential value after the overhaul of the
Election Code in 1986, it would have been followed in Barbour v. Gunn. . . . . . . . . 37
IX. The Doctrine of sub silentio was misapplied by the lower court. . . . . . . . . . . . . . . . . 42
3
X. To disregard the ruling in Barbour v. Gunn would create a double standard and
void the decision in Barbour v. Gunn, ab initio. . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
4
TABLE OF AUTHORITIES
Mississippi Cases
Adams v. Yazoo & M.V.R. Co.,
75 Miss. 275, 22 So. 824 (1897) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
A.T.&T. v. Days Inn of Winona,
720 So.2d 178 (Miss. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
Barbour v. Gunn,
890 So. 2d 843 (Miss. 2004) . . . . . . . . . . . . . . . . . . . . . 15, 37, 39, 40, 41, 43, 45, 46
Barbour v. State ex rel. Hood,
974 So.2d 232, 240 (Miss. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Barr v. Delta & Pine Land Co.,
199 So.2d 269 (Miss. 1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Boyd v. Tishomingo County Democrat Executive Committee,
912 So.2d 124, 128 (Miss. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Caves v. Yarbrough,
991 So.2d 142 (Miss. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
City of Natchez v. Sullivan,
612 So.2d 1087 (Miss. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21, 22, 34, 36
Dearman v. Dearman,
811 So.2d 308 (Miss. App. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Dialysis Solutions v. Mississippi Department of Health,
96 So.3d 713 (Miss. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45, 46
Drummond v. State,
185 So. 207 (Miss. 1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43, 44, 45
Earle v. Crum,
42 Miss. 165 (1868) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46
Fidelity & Guaranty Ins. Co. v. Blount,
63 So.3d 453, 465 (Miss. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Gilmer v. State,
955 So.2d 829 (Miss. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
5
Harpole v. Kemper County Democratic Executive Committee,
908 So.2d 129, 135 (Miss. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
Hoy v. Hoy,
93 Miss. 732, 48 So. 903, 904 (1909) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
In The Interest of AB, Jr.,
663 So.2d 580 (Miss. 1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Jones v. Moorman,
327 So.2d 298 (Miss. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Kellum v. Johnson,
237 Miss. 580, 115 So. 2d 147 (Miss. 1959) . . . 14, 15, 23, 30, 31, 32, 33, 34, 35, 41
McDaniel v. Beane,
515 So. 2d 949, 951 (Miss. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Mississippi Department of Transportation v. Allred,
928 So.2d 152 (Miss. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22
Mississippi Ethics Commission v. Grisham,
957 So.2d 997, 1001 (Miss. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Mississippi Public Service Commission v. Municipal Energy Agency,
463 So.2d 1056, 1058 (Miss. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Mississippi State and School Employees Life and Health Plan v. KCC, Inc.,
108 So.3d 932, 936 (Miss. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Mississippi State Highway Department v. Haines,
139 So. 168, 171 (Miss. 1932) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
Moore v. Parker,
962 So.2d 558, 562 (Miss. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
Noxubee County Democratic Executive Committee v. Russell,
443 So.2d 1191 (Miss. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 33
Pearson v. Parsons,
541 So.2d 447 (Miss. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Smith v. Jackson Construction Co.,
607 So.2d 1119 (Miss. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
6
Southern Pacific Transportation Co. v. Fox,
609 So.2d 357, 362 (Miss. 1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
State ex rel. Patterson v. Board of Supervisors of Warren County,
233 Miss. 240, 102 So.2d 198 (1958) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Tillis v. State,
43 So.3d 1127 (Miss. 2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 17
Tolliver ex rel. Beneficiaries of Green v. Mladineo,
987 So. 2d 989 (Miss. App. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Federal Cases
U. S. Supreme Court
Kucana v. Holder,
558 U.S. 233, 249 (2010) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Nken v. Holder,
556 U.S. 418, 430 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Rusello v. United States,
464 U.S. 16, 23 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. L.A. Tucker Truck Lines, Inc.,
344 U.S. 33 (1952) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42, 43
Wong v. McGrath,
339 U.S. 33 (1950) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
U.S. Circuit Courts of Appeals
Chertkof v. United States,
676 F.2d 984, 987-88 (4
th
Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Hazardous Waste Treatment Council v. U.S. Environmental Protection Agency,
861 F.2d 270, 276 (Fed. Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Mississippi Poultry Association, Inc. v. Madigan,
9 F.3d 1113, 1114 (5
th
Cir. 1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
United States v. Wong Kim Bo,
472 F.2d 720, (5
th
Cir. 1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7
U.S. District and Other Federal Courts
Evers v. State Board of Election Commissioners,
327 F.Supp. 640 (D. Miss. 1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Other State Cases
Chase Home Finance, LLC v. Nolan,
2013 Ill. App. 2d 130075-U (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Graffell v. Honeysuckle,
191 P.2d 858 (Wash. 1948) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
In re O.H.,
768 N.E.2d 799, 803 (Ill. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
State v. Budik,
272 P.3d 816 (Wash. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Mississippi Statutes and Rules
Laws 1970, Chapter 506 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Laws 1970, Chapter 508 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Laws 1979, Chapter 452 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Laws 1982, Chapter 477 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Laws 1986, Chapter 495 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Mississippi Code of 1942, Section 3143 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24, 30, 31
Mississippi Code of 1942, Section 3144 . . . . . . . . . . . . . . . . . . . . . . . . . 24, 27, 28, 30, 31, 35
Mississippi Code of 1942, Section 3146 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 35
Miss. Code Ann. 23-15-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Miss. Code Ann. 23-15-71 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Miss. Code Ann. 23-15-239 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Miss. Code Ann. 23-15-293 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
8
Miss. Code Ann. 23-15-296 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Miss. Code Ann. 23-15-297 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Miss. Code Ann. 23-15-331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Miss. Code Ann. 23-15-367 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Miss. Code Ann. 23-15-597 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28, 29, 33
Miss. Code Ann. 23-15-599 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 18, 28, 29
Miss. Code Ann. 23-15-911 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 29, 33
Miss. Code Ann. 23-15-921 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 19, 29, 30, 33, 36, 40
Miss. Code Ann. 23-15-923 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim
Miss. Code Ann. 23-15-927 . . . . . . . . . . . . . . . . . 11, 13, 17, 19, 20, 38, 39, 40, 43, 45, 46
Miss. Code Ann. 23-15-929 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Miss. Code Ann. 23-15-937 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 22
Miss. Code Ann. 23-15-1031 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
Miss. Code Ann. 23-15-1111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 26
9
STATEMENT OF THE ISSUES
The issues before this Court on appeal are:
Issue I: Does Mississippi Election Code 23-15-923 require that a complaint contesting
a primary election for state-wide office be filed with the political partys state
executive committee within a specific number of days?
Issue II: Does any other section of the Mississippi Election Code require that a complaint
contesting a primary election for state-wide office be filed with the political
partys state executive committee within a specific number of days?
Issue III: Does the absence of a time requirement in Election Code 23-15-923 indicate an
intent by the Legislature that no specific deadline be imposed on filing a
complaint contesting a primary election for state-wide office with the political
partys state executive committee?
Issue IV: When enacting the Mississippi Election Code, did the Legislature express an
intent to repeal Mississippis former election statutes governing primary
elections?
Issue V: Did the Legislatures adoption of the Election Code make material changes in
Mississippis election statutes?
Issue VI: Is the Kellum v. Johnsons interpretation of 1959 Mississippi election statutes
binding precedent on the interpretation of the current Mississippi Election Code?
Issue VII: Is the Kellum v. Johnson decision inconsistent with its own proclaimed well
established principles of statutory construction?
Issue VIII: Did this Court in Barbour v. Gunn interpret and apply Election Code 23-15-
923 consistent with its clear language and contrary to an application of Kellum v.
Johnson as precedent?
10
STATEMENT OF THE CASE
A. Nature of the Case, Course of the Proceedings, and Disposition in the Court Below.
This is an election contest case. Appellant Chris McDaniel (McDaniel) initiated an
election contest to challenge of the results of the June 24, 2014, Republican Party primary runoff
election for U. S. Senator by filing a complaint with the Republican Party State Executive
Committee (SREC) pursuant to Mississippi Election Code 23-15-923. After giving the
SREC time to consider the complaint, McDaniel filed a petition for judicial review with the
Circuit Court pursuant to Election Code 23-15-927.
In the Circuit Court, Appellee Thad Cochran (Cochran) filed a motion to dismiss the
complaint arguing that McDaniel did not timely file the complaint with the SREC.
Notwithstanding the facts that (1) Election Code 23-15-923 does not impose a time
requirement within which a complaint must be filed, (2) no other section of the Election Code
imposes such a requirement, and (3) Mississippis former election laws were expressly repealed
and restructured more than once over the years by the Legislature, Cochran argued that a 1959
decision of the Mississippi Supreme Court interpreting election statutes (since repealed) under
the Mississippi Code of 1942 imposed a 20-day time requirement within which McDaniel was
required to file his election complaint with the SREC.
The Circuit Court granted Cochrans motion, and the Circuit Courts order dismissing
McDaniels case is the subject of this appeal.
B. Statement of Facts
The Mississippi Republican party held its primary election for U. S. Senator on Tuesday,
June 3, 2014. McDaniel received the highest number of votes and Cochran received the second
highest number of votes, but no single candidate received a majority of the votes cast in that
11
primary. These results were certified to the Mississippi Secretary of State by the Chairman of
the Republican Party State Executive Committee (SREC) on June 13, 2014.
On Tuesday, June 24, 2014, the Mississippi Republican party held a primary runoff
election between McDaniel and Cochran. Thirteen (13) days later (July 7, 2014),
1
the Chairman
of the SREC submitted an initial certification of the results to the Secretary of State, declaring
Cochran to have received the highest number of votes and declaring him the Republican
nominee for U. S. Senator. An amended certification was submitted to the Secretary of State
three (3) days later (July 10, 2014).
Having observed significant irregularities in the handling of the voting process on June
24, as well as the Cochran campaign openly promoting violation of Mississippi election law,
McDaniel looked to challenge the results. He gave notice of his intent to begin examining
election results documentation from the runoff election on July 7, 2014, to the circuit clerks of
the States counties pursuant to Mississippi Code 23-15-911. When that examination began in
the counties, McDaniel encountered multiple obstructions, including among them the complete
refusal to access Hinds County records on July 7, 2014. The chairman of the Republican Partys
county executive committee for Hinds County denied McDaniel all access to election records on
July 7, 2014, stating that he had not yet provided the county executive committees certification
of the results to the SREC.
Over the course of the next twenty-eight (28) days, McDaniel examined county election
records in nearly all of Mississippis 82 counties and assimilated the results of that examination
into a complaint consisting of over 390 pages. When all completed, McDaniels complaint
1
Not within ten (10) days as required by Mississippi Code 23-15-599.
12
summarized election code violations in forty-one (41) counties. McDaniel filed his election-
contest complaint with the SREC pursuant to Mississippi Code 23-15-923 on August 4,
2014. The total time period from the June 24 runoff election until McDaniels filing of the
election-contest complaint with the SREC was forty-one (41) days. This forty-one (41) day
period included the initial thirteen (13) days waiting for the SREC to certify the runoff election
results, and then the twenty-eight (28) days for McDaniel to examine the election records in
Mississippis eighty-two (82) counties and assimilate the results of that examination into his
election-contest complaint filed with the SREC.
On August 14, 2014, McDaniel filed his petition for judicial review with the Jones
County Circuit Court pursuant to Election Code 23-15-927. The following day, Chief Justice
Waller appointed Senior Status Judge Hollis McGehee to preside over the election contest
litigation.
On August 21, 2014, Cochran filed his Answer to the Complaint and a motion to
dismiss. Judge McGehee heard arguments on Cochrans motion to dismiss August 28, 2014.
Judge McGehee granted the motion and ordered dismissal, which order was entered by the
Circuit Clerk of Jones County on September 4, 2014. McDaniel filed his Notice of Appeal to
this Court on September 5, 2014.
SUMMARY OF THE ARGUMENT
The Mississippi Election Code, Miss.Code Ann. 23151 through 23151111, is a
comprehensive, detailed set of laws governing all aspects of the election process in the State of
Mississippi. Included in the Election Code are statutes governing the procedures for
challenging primary elections. Election Code 23-15-923 is the section that authorizes
candidates to contest the results of primary elections for multi-county and state-wide offices.
13
Standing alone and in the context of the entire Election Code, 23-15-923 is clear. It does not
impose a specific time requirement within which a complaint must be filed with the political
partys state executive committee to contest a primary election for state-wide office.
A completely separate section of the Election Code authorizes the contest of primary
elections for single county offices. Section 23-15-921 imposes a 20-day deadline for filing a
complaint with a partys county executive committee in such single-county primary elections.
Section 23-15-921 stands in contrast to the multi-county contest statute, 23-15-923, which
clearly omits such a deadline. The language of Section 23-15-921 clearly limits its applicability
to single county offices, as similarly the language of 23-15-923 clearly limits its applicability to
multi-county and state-wide offices. The differentiation between single county offices, on the
one hand, and multi-county and state-wide offices, on the other, is seen throughout the Election
Code. The difference between 23-15-921 and 23-15-923 is just one example of that
differentiation. The absence of a time requirement in 23-15-923 indicates an intent by the
Legislature that no specific time requirement be imposed in the circumstances to which it
applies. As would then be expected, no other section of the Election Code imposes a time
requirement on filing a complaint to contest a primary election for state-wide office.
In the Circuit Court, Cochran argued that the 20-day deadline found in 23-15-921
should be read into (or written by the Court into) 23-15-923. Cochran further argued that this
statutory revision had already been accomplished by this Courts 1959 interpretation of the
Mississippi Code of 1942 in Kellum v. Johnson, 237 Miss. 580, 115 So.2d 147 (1959).
The statutes interpreted by Kellum, along with all other former Mississippi election
statutes, have been repealed. When the Mississippi Legislature enacted the Mississippi Election
Code in 1986, all former Mississippi election statutes (specifically and expressly including the
14
statutes interpreted by Kellum v. Johnson) were expressly repealed, for the third time, in fact,
since the Kellum decision. The Legislatures 1986 repeal of all former Mississippi election laws
and adoption of the Election Code constituted material changes in Mississippis election law. In
the context of the Election Code, 23-15-923 is a new statute that is materially different from
its somewhat similar predecessor. Section 23-15-923 was further amended in 1988. Kellum v.
Johnsons interpretation of a 1959 Mississippi election statute is therefore not authoritative nor
a controlling precedent on the interpretation of the current Mississippi Election Code - a
conclusion confirmed by this Courts decision in Barbour v. Gunn, 890 So.2d 843 (Miss. 2004).
Kellum v. Johnson is internally inconsistent. Applying the principles of statutory
construction announced by Kellum itself shows that Kellum was wrongly decided at the time it
was made.
In 2004, this Court applied 23-15-923 consistent with its clear language and consistent
with recognized principles of statutory construction in Barbour v. Gunn, which application was
inconsistent with an application of Kellum v. Johnson as precedent.
The Circuit Court erred in dismissing McDaniels Complaint. For all these reasons, the
opinion of the court below should be reversed.
ARGUMENT
The issues raised by this appeal are issues of law requiring the interpretation of statutes.
This Court employs a de novo standard in reviewing issues of law and the interpretation of
statutes on appeal. Moore v. Parker, 962 So.2d 558, 562 (Miss. 2007); Boyd v. Tishomingo
County Democrat Executive Committee, 912 So.2d 124, 128 (Miss. 2005); Tillis v. State, 43
So.3d 1127 (Miss. 2010).
15
I. Election Code 23-15-923 does not impose a specific time requirement for filing a
complaint with a partys state executive committee to contest a primary election
for state-wide office.
The Mississippi Election Code provides the procedural remedy for a candidate seeking to
contest the election of another in a party primary. In Article 29 Election Contest and
Subarticle B Contests of Primary Elections, Section 23-15-923 provides:

State, congressional, judicial, legislative offices.
Except as otherwise provided in Section 23-15-961, a person
desiring to contest the election of another returned as the nominee
in state, congressional and judicial districts, and in legislative
districts composed of more than one (1) county or parts of more
than one (1) county, upon complaint filed with the Chairman of
the State Executive Committee, by petition, reciting the grounds
upon which the election is contested. If necessary and with the
advice of four (4) members of said committee, the chairman shall
issue his fiat to the chairman of the appropriate county executive
committee, and in like manner as in the county office, the county
committee shall investigate the complaint and return their findings
to the chairman of the state committee. The State Executive
Committee by majority vote of members present shall declare the
true results of such primary.
The language 23-15-923 is clear in the statement of its applicability, authorization, and
limitations. That language specifies, among other things, (1) that it authorizes a person desiring
to contest the election of another as nominee, (2) that it applies and is limited to elections for
nominees in state, congressional, judicial districts, and legislative districts composed of more
than one county or parts of more than one county; (3) that an election-contest authorized by this
section must be initiated by filing a complaint with the Chairman of the State Executive
Committee, and (4) that while the complaint must recite the grounds upon which the election is
contested, the statute does not require any specific category or type of ground be recited.
Equally clear in the language of 23-15-923 is the fact that it does not impose a requirement
that the election-contest complaints authorized thereunder be filed within a specified period of
16
time.
Section 23-15-923s limitation to multiple county elections distinguishes it from other
Election Code sections that apply to single county offices. The Legislature made a distinction
throughout the Election Code between primaries involving single county offices and those
involving multi-county and state-wide offices. See, for example, 23-15-293, 23-15-297,
23-15-331, 23-15-927, and 23-15-937. Section 23-15-923 is tailored to fit into the statutory
scheme that places different requirements on single county office primaries than those placed on
elections for offices involving multiple counties, parts of several counties (such as legislative
districts) and the entire State. The absence of a time requirement is one part of 23-15-923's
tailoring to fit contests of multi-county and state-wide offices into the overall statutory scheme.
When a statute is clear, the Court applies the plain meaning of the statute. Tillis v. State,
43 So.3d 1127 (Miss. 2010). The Court is not to enlarge or restrict a statute where the meaning
of the statute is clear. Barbour v. State ex rel. Hood, 974 So.2d 232, 240 (Miss. 2008); Gilmer
v. State, 955 So.2d 829 (Miss. 2007). Courts have a duty to give statutes a practical application
consistent with their wording, unless such application is inconsistent with the obvious intent of
the legislature. Mississippi State and School Employees Life and Health Plan v. KCC, Inc., 108
So.3d 932, 936 (Miss. 2013); Mississippi Ethics Commission v. Grisham, 957 So.2d 997, 1001
(Miss. 2007). What the Legislature says in the text of the statute is considered the best evidence
of the legislative intent. Mississippi Department of Transportation v. Allred, 928 So.2d 152
(Miss. 2006).
17
II. Other sections of the Election Code impose many deadlines but none on filing a
complaint to contest a primary election for state-wide office with a political partys
state executive committee.
The Election Code is filled with specific deadlines and time requirements, many of which
were added or amended in the adoption of the Election Code in 1986. Attached Addendum A
is a tabulation of selected Election Code sections that impose notable deadlines and time
requirements.
2
This tabulation may be compared to the Secretary of States 2014 Elections
Calendar which presents many of the deadlines and time requirements taken from the Election
Code.
3
Examples of time requirements found in the Election Code include:
- 23-15-71: Two (2) days specified as time within which an aggrieved elector may
file a bill or exceptions to a decision of election commissioners.
- 23-15-239: Not less than five (5) days prior to each election county executive
committees must conduct training sessions for precinct managers.
- 23-15-296: Within two (2) working days of each qualifying deadline political
parties must provide the Secretary of State information on candidates who
submitted qualifying papers.
- 23-15-367: The Secretary of State must provide county election commissioners a
sample official ballot not less than fifty-five (55) days prior to the election.
- 23-15-599: Within ten (10) days after a primary election, the chairman of the
partys state executive committee must transmit a tabulated statement of the
votes to the Secretary of State.
These are but a few of the examples which demonstrate that the Legislature enacted in the
Election Code a coordinated and interdependent system of time requirements in an effort to
effectively regulate the administration of elections in Mississippi. Within that coordinated
2
Addendum A does not attempt to be a comprehensive coverage of every deadline and time requirement
in the Election Code.
3
Published at
http://www.sos.ms.gov/links/elections/2014/2014%20Elections%20Calendar%20web_Rev%209%202013.
pdf (accessed September 11, 2014).
18
system of time requirements, no Code section imposes a time requirement or deadline for filing a
complaint to contest a primary election for state-wide office with a political partys state
executive committee.
Section 23-15-921 provides an example of both a specific time requirement in the
Election Code and also an example of the Election Codes differentiation between single county
offices and multi-county offices. The language of 23-15-921 specifies:
(1) That it applies to elections for nominees to any county office, county district
office, or legislative district composed of one county or less;
(2) That an election contest authorized by this section must be initiated by filing a
complaint with the county executive committee in the county in which the
election was held; and
(3) That such election contest must be filed within twenty (20) days after the
primary election.
In coordinating the regulation of primary election contests, the Legislature again made
distinction between elections for offices involving a single county and those elections involving
more than one county, such as legislative district and state-wide offices. For single county
offices, the Legislature imposed in 23-15-921 a requirement that an election-contest complaint
be filed with the county executive committee within twenty (20) days after the primary elections.
In contrast, the Legislature chose to not impose a deadline for contesting primary
elections for multi-county offices. The absence of a deadline from 23-15-923 makes it similar
to other sections of Election Code that do not impose a time requirement. Among them is 23-
15-927. Section 23-15-927 governs the process of filing a petition for judicial review of an
executive committees decision. Before 2012, 23-15-927 did not impose a deadline for filing a
petition for judicial review. Section 23-15-927 required only that a candidate file his petition for
judicial review forthwith after the conclusion of the executive committees proceeding.
19
Interpreting 23-15-927, the Mississippi Supreme Court has held that the statute imposes no
fixed time limit, but rather the meaning of the term forthwith depends upon consideration of
the surrounding facts and circumstances and varies with each particular case. Pearson v.
Parsons, 541 So.2d 447 (Miss. 1989).
III. The absence of a deadline in Election Code 23-15-923 is evidence of an intent by
the Legislature that no specific time requirement be imposed.
As noted above, the Legislatures adoption of specific time requirements in specific
circumstances is seen throughout the Election Code. Where specific time requirements were
thought necessary, the Legislature adopted them. Similarly, the Legislature omitted specific
time requirements from the Election Code where discretion and flexibility were considered
important. An example of the latter is 23-15-929, which provides that the contestee must file
an answer, but does not specify any specific number of days. Both adoption and omission of
time requirements are part of the Legislatures overall coordination of the Election Code.
The significance of the Legislatures decision to omit specific time requirements was
articulated by the Mississippi Supreme Court in City of Natchez v. Sullivan, 612 So.2d 1087
(Miss. 1992). The Court stated, the omission of language from a similar provision on a similar
subject indicates that the legislature had a different intent in enacting the provisions, which it
manifested by the omission of the language. Id. at 1089. The principle was applied again in In
The Interest of AB, Jr., 663 So.2d 580 (Miss. 1995), where the Court stated: This Court will
not second guess the legislature by reading such a requirement into the statute.
It is an accepted canon of statutory construction that the express inclusion of a
provision in one section of a statute and an omission of that provision in a parallel section of the
statute demonstrates the legislature's intent to omit the provision in the parallel section. Chase
20
Home Finance, LLC v. Nolan, 2013 Ill. App. 2d 130075-U (2013); In re O.H., 768 N.E.2d 799,
803 (Ill. App. 2002). See also, Kucana v. Holder, 558 U.S. 233, 249 (2010); Nken v. Holder,
556 U.S. 418, 430 (2009); Rusello v. United States, 464 U.S. 16, 23 (1983); Mississippi
Poultry Association, Inc. v. Madigan, 9 F.3d 1113, 1114 (5
th
Cir. 1993); United States v. Wong
Kim Bo, 472 F.2d 720, (5
th
Cir. 1972). An intentionally omitted term from one section cannot
legitimately be read into another section, where it is clearly absent. Hazardous Waste Treatment
Council v. U.S. Environmental Protection Agency, 861 F.2d 270, 276 (Fed. Cir. 1988);
Chertkof v. United States, 676 F.2d 984, 987-88 (4
th
Cir. 1982).
This Courts holding in City of Natchez v. Sullivan accurately describes the Mississippi
Legislatures approach to regulating primary election contests. The omission of a set time
period from 23-15-923 was intentional. That intent is further evidenced by a perusal of the
Election Codes overall regulation of party primary elections. The regulation of primary
elections involving multi-county and state-wide offices is obviously more complicated than
regulating those involving single county offices. A candidate contesting a primary election for a
single county office must deal with one county executive committee and one circuit clerk to
review records. This is a relatively straight-forward affair, and the amount of time required to
prepare a contest can be estimated with some degree of confidence.
In contrast, the contest of a primary election for a multi-county or state-wide office
requires dealing with multiple different county executive committees, circuit clerks (up to 82 in a
state-wide contest), and then the partys state executive committee. The time necessary to
prepare such an election contest is largely unpredictable and need not be specified. Other
sections of the Election Code provide incentive for the candidate pursuing such a challenge to
prepare his challenge as quickly as reasonably possible. Section 23-15-937 likely provides all
21
the incentive required to motivate an election challenger to file a complaint as soon as possible,
as it provides that if a final decision on an election contest is not made by the time the official
ballots are required to be printed, the name of the nominee declared by the party executive
committee shall be printed on the official ballots as the party nominee.
Election Code 23-15-923 must be read in the context of the entire Election Code.
Statutes that address the same subject or are part of a single legislative act must be read
together. Mississippi Department of Transportation v. Allred, 928 So.2d 152, 155
(Miss.2006).
While it is clear that 23-15-923 does not impose a time requirement, if there were any
ambiguity, the intent of the Legislature is made clear by reading the Election Code as a whole.
This Court has held that statutes dealing with the same or similar subject matter must be read in
pari materia and to the extent possible, each section of the Code must be given effect. Fidelity
& Guaranty Ins. Co. v. Blount, 63 So.3d 453, 465 (Miss. 2011)(citing Mississippi Public
Service Commission v. Municipal Energy Agency, 463 So.2d 1056, 1058 (Miss. 1985)).
The absence of a deadline from 23-15-923 gives effect to the section and fits in the
framework created by the Election Code. The principle of statutory construction articulated in
City of Natchez v. Sullivan harmonizes sections of the Election Code. The absence of a specific
time in 23-15-923 provides a flexibility that is commensurate with the scope of the office or
election being challenged. To specify a single time period for all contests authorized by 23-15-
923 would cause contests of state-wide primaries to be treated the same as small districts
(though multi-county) primaries and create conflicts in timing of events specified in the Code.
22
IV. The Mississippi Legislature clearly expressed an intent to repeal former Mississippi
election laws regulating primary elections.
The history of Mississippis Election Code is complicated, but one fact from that history
stands out clearly, the Mississippi Legislature intended to repeal Mississippis former election
statutes and to restructure Mississippis election laws governing primary elections
On April 6, 1970, the Mississippi Legislature adopted House Bill 362 with the express
purpose to adopt:
AN ACT to amend Sections 3107-04, 3108.5, 3118.5, 3118.7,
3121, 3123, 3152, 3153, 3209.5, 3226, 3237, 3238, 3239, 3261,
3263, 3279, 3280, 3281, 3286.5, 3313.5, and 3315, Mississippi
Code of 1942, and to repeal Section 3105, 3107-03, 3107-05,
3107-07, 3108, 3109, 3110, 3111, 3112, 3113, 3114, 3115, 3116,
3117, 3118, 3119, 3124, 3125, 3126, 3127, 3128, 3129, 3130,
3131, 3132, 3133, 3134, 3135, 3136, 3137, 3138, 3140, 3141,
3142, 3143, 3144, 3145, 3146, 3147, 3148, 3149, 3150, 3151,
3154, 3155, 3156, and 3157, Mississippi Code of 1942, to make
the code conform to the provisions of House Bill No. 363,
Regular Session of 1970, which abolished political primary
elections; and for related purposes.
See Laws 1970, Chapter 506 (emphasis added).
4
The referenced House Bill No. 363 abolished
political primary elections and contained provisions setting out the method for qualifying as
candidates for persons affiliated with political parties. Laws 1970, Chapter 508. Shortly after
the adoption of Chapters 506 and 508, the new law was challenged in federal court under
Section 5 of the Voting Rights Act of 1965.
5
See Evers v. State Board of Election
Commissioners, 327 F.Supp. 640 (D. Miss. 1971). In Evers, the federal court issued an
injunction that blocked the new law from taking effect. At the time of the Evers decision, the
4
Sections 3143 and 3144 of the Mississippi Code of 1942 are discussed below.
5
The Voting Rights Act of 1965 (89 P.L. 110, 79 Stat. 437 (Aug. 6, 1965)) was formerly codified at 42
U.S.C. 1973c but now codified at 52 U.S.C. 10301. The Voting Rights Act of 1965 is another major
change in election law that took place after Kellum v. Johnson was decided in 1959, as discussed below.
23
United States Department of Justice had not approved or disapproved Chapter 506. Nearly
three (3) years later, on April 26, 1974, the Department of Justice disapproved Chapter 506.
See also Jones v. Moorman, 327 So.2d 298 (Miss. 1976)(recognizing the history of Chapters
506 and 508 of the Laws of 1970).
In 1979, the Mississippi Legislature again adopted legislation that would repeal the
States former statutes relating to party primary elections. On March 30, 1979, the Legislature
adopted Senate Bill No. 2802 as:
AN ACT to . . . repeal 3105, 3107-03, 3107-04, 3107-05, 3108,
3108.5, 3109, 3110, 3111, 3112, 3113, 3114, 3115, 3117, 3118,
3118.5, 3118.7, 3123, 3124, 3126, 3127, 3129, 3137, 3142
through 3157, 3169, 3261, 3279, 3281, 3313.5, 3315, and 3374-
63, Mississippi Code of 1942, as they existed prior to November
1, 1964, and Sections 23-1-9, 23-1-27, 23-1-31, 23-1-39, 23-1-
65, 23-3-23, 23-5-135, 23-5-169, 23-5-173, 23-5-241 and 23-5-
245, Mississippi Code of 1972, which relate to political party
primaries; and for related purposes.
See Laws 1979, Chapter 452 (emphasis added).
6
This Act of the Legislature was blocked by
disapproval from the United States Department of Justice under Section 5 of the Voting Rights
Act of 1965.
On April 22, 1982, the Mississippi Legislature adopted House Bill 828 to adopt:
AN ACT to amend Sections 3109, 3111 and 3152, Mississippi
Code of 1942, to provide that the first political party primary
election shall be held seven weeks before the general, regular or
municipal general election and that the second political primary
election, if necessary, shall be held three weeks thereafter; to
amend Section 23-5-134, Mississippi Code of 1972, to provide
that independents shall qualify for an election at the same time as
political party candidates; to repeal Section 3260A, Mississippi
Code of 1942, which provides for the form of the ballot and the
6
Sections 3143 and 3144 of the Mississippi Code of 1942, discussed below, are included in the
emphasized block of repealed sections, and specifically enumerated in Section 38 of the adopted Senate
Bill 2802.
24
manner of qualifying as a candidate; to repeal Section 3260,
Mississippi Code of 1942, which provides for the content of
ballots and the manner of qualifying for United States Senator and
United States Representative; to repeal Chapter 452 of the Laws
of the General Session of 1979, which provides for the open
primary form of election; and for related purposes.
Laws 1982, Chapter 477 (emphasis added). This Act was also blocked by disapproval from the
United States Department of Justice under Section 5 of the Voting Rights Act of 1965.
By the time the Voting Rights of 1965 was amended in 1982,
7
the Mississippi
Legislature had gone through at least two (2) iterations of repealing and restructuring the States
election laws governing primary elections, both of which had been rejected by the U. S.
Department of Justice.
In the spring of 1984, then Secretary of State Dick Molpus appointed a 25-member
Election Law Reform Task Force to rewrite Mississippi's election law. With a generalized
assignment to recodify Mississippi election law, the Task Force held public hearings in each of
the state's five congressional districts receiving testimony and written recommendations from a
wide variety of interest groups. Based upon this testimony, the Task Force perceived a need to
broaden its underlying assignment of recodification and to undertake the task of rewriting
substantial portions of then existing law. R. Andrew Taggart & John C. Henegan, The
Mississippi Election Code of 1986: An Overview, 56 Miss. L. J. 536, 537-539 (1986).
Over an approximately two year period, the process of rewriting Mississippis election
law worked its way through the Task Force, through the 1985 session of the Legislature, and
then through the Joint Interim Study Committee of the Mississippi Legislature formed in 1985
and tasked with additional study of the States election laws and making proposals for reform.
7
97 Pub. L. 205, 96 Stat. 134 (June 29, 1982).
25
In the 1986 Legislative Session, the Joint Interim Study Committee of the Mississippi
Legislature made its proposal to make significant changes to the States election laws, including
repealing all for former election statutes and consolidating all of the States election laws into a
coordinated, single Election Code that was codified in a single chapter of the Mississippi Code.
On April 16, 1986, the Mississippi Legislature adopted Senate Bill 2234 (Laws 1986,
Chapter 495). The preface Senate Bill 2234 (copy attached hereto as Addendum B) provides
a picture of the expansive scope of the 1986 Act. Section 1 (now codified at Mississippi Code
23-15-1) provided This act shall be known and may be cited as the Mississippi Election
Code. Sections 331 through 345 of the Act repealed election laws formerly found in Chapters
1 - 11 of Title 23 of the Mississippi Code of 1972. Section 346 of the Act provided that
Sections 3105 through 3157, Mississippi Code of 1942, which relate to political party primary
elections, are hereby repealed. In that grouping, Sections 3143 and 3144 of the Mississippi
Code of 1942, discussed below, were again expressly repealed. Then, Section 348 of the 1986
Act provided that All election laws in conflict with the provisions of this act are hereby
repealed. Section 348 is now codified at Mississippi Code 23-15-1111.
The 1986 Act (chapter 495, Laws of 1986) was submitted on November 3, 1986, to the
Attorney General of the United States for consideration and preclearance under the provisions
of the Voting Rights Act of 1965, as amended and extended. On December 31, 1986, and on
January 2, 1987, the Attorney General of the United States interposed no objections to the
changes involved in chapter 495, Laws of 1986, thereby implementing the effective date of
January 1, 1987, of the Mississippi Election Code. See also McDaniel v. Beane, 515 So. 2d
949, 951 n.1 (Miss. 1987). The Election Code as enacted by the 1986 Act continues in effect,
though additional changes have been made to specific sections, one of which is 23-15-923.
26
V. The Election Code made material changes in Mississippis election statutes and
specifically to the predecessors of 23-15-923.
Changes made by the 1986 Act and subsequent amendments now reflected in the
Election Code are sweeping and restructuring in nature. Attached Addendum A presents a
limited picture of those changes, a picture that is focused on changes in time requirements and
related new sections added by the 1986 Act or subsequent amendments. While it is obvious
from a perusal of the former and current election statutes that the draftsmen of the 1986 Act
used the form of the old statutes as a starting point for some of the new laws, this fact should
not be allowed to obscure the substantiality of the changes the Election Code. These changes
affected both the overall structure and specific sections of the election law. Comparing the
identified sections of the Code of 1942 with the related current sections of the Election Code,
Addendum A demonstrates by sample the significance of the number of time requirements that
were added or changed by the 1986 Act and subsequent amendments. Addendum A identifies
47 different former election code sections that the 1986 Act or subsequent amendments changed
by adding a new time requirement or by modifying an old time requirement.
The changes most pertinent to the interpretation of Election Code 23-15-923 are of
two types. The first type is changes in the language and structure that resulted in the current
23-15-923. The second type is changes of time requirements in other sections that affect the
time in which a challenger has access to election records.
The differences in language and structure between Election Code 23-15-923 and its
predecessor (Section 3144 of the Mississippi Code of 1942) may be seen graphically in the side-
side comparison presented in Addendum C. The differences may be described generally as
follows: Section 3144 was by indirect language limited to allegations of fraud as the grounds for
27
an election contest. Election Code 23-15-923 covers entire classes of other grounds for
contesting primary elections that Section 3144 did not. Section 3144 did not include exceptions
or other language coordinating it with other election statutes. Election Code 23-15-923
includes both. Section 3144 did not apply to legislative districts composed of more than one
county or parts of more than one county. Election Code 23-15-923 does. The language of
23-15-923 makes an even clearer delineation of its applicability to multi-county primaries by the
addition of the language and in legislative districts composed of more than one county or parts
of more than one county. Section 3144 applied to flotorial contests. Election Code 23-15-
923 does not.
The structural differences are equally significant. Section 3144 did not specify who
could file a complaint. Nor did it directly describe the purpose for which a complaint could be
filed. Election Code 23-15-923 is structured materially different. It first includes language
coordinating 23-15-923 with other sections of the Election Code. Then the new language
addresses both who may file and what must be recited in the complaint. Section 23-15-923 is
structurally independent.
Changes in other code sections made 23-15-923's cooperation with other parts of the
Election Code different than Section 3144. In the 1986 adoption of the Election Code, the
political party state executive committees were given ten (10) days after a primary election to
certify the results to the Secretary of State. See Election Code 23-15-599. Prior to the
adoption of the Election Code in 1986, the election statutes did not impose such a time
requirement on the state executive committees. See 3146, Mississippi Code of 1942.
The Election Codes coordination between sections produces an expected time-sequence
of events in primary elections for multi-county offices. Section 23-15-597 requires that political
28
party county executive committees (hereinafter CEC) meet on the first or second day after the
election to canvass returns, declare the result for their county and then transmit the county
results to the partys state executive committee within 36 hours after the CEC has declared the
county results. This procedure consumes the first 4 days after the primary election.
Section 23-15-599 then requires the state executive committee to transmit the state-wide
results to the Secretary of State within 10 days from the date of the primary election. This
deadline is calculated from the date of the election, not from the date of the CECs transmittal of
results. Under 23-15-597, a state executive committee should have received the CEC results
within 4 days of the date of the primary election. The state executive committee would then
have, under 23-15-599's ten day deadline, at least 6 days to prepare its own certification to the
Secretary of State. That these requirements apply to primaries for United States Senator,
Election Code 23-15-1031 makes clear.
The date of the state executive committees certification to the Secretary of State
initiates the 12-day window within which a candidate may examine election-results
documentation under 23-15-911 in state wide elections. This is a corollary to the CEC
certification under 23-15-597 initiating the examination period in a single county primary
election. See Election Code 23-15-1031; Noxubee County Democratic Executive Committee
v. Russell, 443 So.2d 1191 (Miss. 1983). In this setting, the candidates right to examine the
documents does not begin until 10 days after the primary election and does not conclude until 22
days after the date of the primary election.
29
VI. Kellum v. Johnsons interpretation of the 1959 Mississippi election statutes is not
binding precedent on the interpretation of the current Mississippi Election Code.
In the Circuit Court, Cochran argued that the 20-day deadline found in 23-15-921 had
been read into (or written by the Court into) 23-15-923 by this Courts 1959 interpretation of
the Mississippi Code of 1942 in Kellum v. Johnson, 237 Miss. 580, 115 So.2d 147 (1959).
Kellum v. Johnson dealt with the two statutory sections that addressed election contests in
1959. The first was Section 3143 of the Mississippi Code of 1942. Although it bears some
similarity to current Election Code 23-15-921, the differences are substantial. Section 3143
was limited to allegations of fraud. Election Code 23-15-921 is not limited to allegations of
fraud, but rather includes and applies to grounds for contesting primary elections that Section
3143 did not. Next, Section 3143 did not include exceptions or other language coordinating it
with other election statutes. Election Code 23-15-921 includes both. Third, Section 3143 did
not by its terms apply to legislative districts composed of one county or less. Election Code
23-15-921 does. Fourth, Section 3143 was not clear as to which county executive committee
could accept the subject election dispute petition. The language of Election Code 23-15-921
indicates which county executive committee. The most significant distinction however is that
Section 3143, as it then existed, was repealed in 1986. It was not re-enacted. Rather, a new
statute was enacted. That new statute is Election Code 23-15-921.
The second statutory section Kellum dealt with was Section 3144 of the Mississippi
Code of 1942. It bears some similarity to Election Code 23-15-921, but the differences,
discussed above, are substantial.
The Kellum decision recognized that, in 1959, Section 3143 governed election contests
for primaries for single county and beat offices, while Section 3144 governed election contests
30
for primaries for multi-county offices. The election at issue in Kellum was a multi-county office
- the office of district attorney. The Kellum decision further recognized that Section 3143
contained a time requirement that election contests for single county offices be filed with the
CEC within 20 days after the primary election, while Section 3144 did not contain such a time
requirement for multi-county offices. The Kellum court took the 20-day deadline from Section
3143 (applicable only to single county elections) and inserted it into Section 3144, thereby
judicially creating a basis for applying a 20-day deadline to the primary election for district
attorney there at issue.
The single similarity between the scenario in Kellum v. Johnson and the case sub judice
is obvious: the single county statute included a 20-day deadline and the multi-county statute
contained no deadline. This similarity has no effect on the material changes made to
Mississippis election statutes, including the two sections interpreted by Kellum, since the
Kellum case was decided. These substantial and material changes in the statutes effectively set
aside Kellum v. Johnson as precedential authority for interpreting the current Election Code.
See Southern Pacific Transportation Co. v. Fox, 609 So.2d 357, 362 (Miss. 1992).
In the Circuit Court, Cochran argued that the Kellum v. Johnson interpretation was
incorporated into re-enactement of the election statutes. However, the case authority relied on
by Cochran in making such argument requires, as the foundational element, that a statutory re-
enactment be without change or without material change between the old and new statutes.
See, for example, Caves v. Yarbrough, 991 So.2d 142 (Miss. 2008); Barr v. Delta & Pine Land
Co., 199 So.2d 269 (Miss. 1967); Hoy v. Hoy, 93 Miss. 732, 48 So. 903, 904 (1909); Dearman
v. Dearman, 811 So.2d 308 (Miss. App. 2001). See generally, Smith v. Jackson Construction
Co., 607 So.2d 1119 (Miss. 1992) (Robertson concurring). The rule stated in this line of cases
31
rests on a foundation that the two statutes be exactly the same or the same in all material
respects. Faced with this difficulty, Cochrans argument strained to minimize the differences
between the former election statutes and the current Election Code and to downplay the clear
language of the 1986 adoption of the Election Code. Those differences cannot be ignored. Nor
are they minimized by similarities between the former and current statutes.
When there is a material change between a repealed statute and a newly enacted one, the
cases relied on by Cochran do not apply. From research for this case, it appears that the
Mississippi Supreme Court has not addressed the situation directly, but the principle is so well
ingrained it appears to have been accepted by Mississippi election officials who have looked at
the history of Mississippi election law. None other than Secretary of State Delbert Hosemann,
Mississippis chief election official, concluded that 23-15-923 did not require Chris McDaniel
to file his election-contest complaint with the SREC within any specific number of days. See
Record Supp. at page 6.
When the Supreme Court of Washington faced the issue, it recognized that a change in
statutory law indicates that the Legislature had in mind a mischief and a remedy. It further
held that in construing statutes which reenact or repeal other statutes, or which contain revisions
or codification of earlier laws, where a material change is made in the wording of a statute, a
change in legislative purpose must be presumed. Graffell v. Honeysuckle, 191 P.2d 858 (Wash.
1948). See also State v. Budik, 272 P.3d 816 (Wash. 2012) quoting Graffell and applying the
same rule.
If this Court were to apply Kellum v. Johnson to the current Election Code, a conflict in
the statutory scheme would be created, where none otherwise exists. It would impose a
requirement that candidates in multi-county or state-wide election contests file their complaint
32
with the state executive committee before the end of their allowed 12-day period to examine
election records. In that setting, the candidate would be required to file his complaint 2 days
before the end of the examination period. In the real factual circumstances of the instant case,
McDaniel would have been required to file 5 days before the end of his 12-day examination
period - and for 3 of those days, Petitioners loss would have been caused by the state executive
committees failure to meet the requirements of the Election Code.
Such conflict created by application of Kellum would also be contrary to the intent of the
Legislature as expressed for single county election contests. The time frames set forth in the
Election Code sections applicable to single county election contests indicate that the Legislature
allowed time for a candidate to prepare his election-contest complaint after the 12-day
examination period had expired. Under 23-15-597 CECs are required to meet on the first or
second day after the primary election, canvass the returns, and announce the nominee. This
announcement by the CEC is a certification that triggers the 12-day period pursuant to 23-15-
911 within which a candidate may complete a full examination of the election-results
documentation. Noxubee County Democratic Executive Committee v. Russell, supra. When
23-15-911 and 23-15-597 are read together, it is clear that the process of CEC certification
and candidate review of election records for a single county primary could take from as little as
2 days up to a maximum of 14 days after the primary election date. If a candidate decides, after
reviewing the election documentation, to contest the single-county primary election results,
23-15-921 requires that the candidate file a petition with the CEC within 20 days after the
primary election. The three Election Code sections, 23-15-597, 23-15-911, and 23-15-
921 are coordinated in their application to primary elections for single county offices. Pursuant
to them, a candidate would have, after the conclusion of his 12-day document-examination
33
window, a minimum of 6 days and a potential maximum of 18 days (depending on how long it
took the executive committee to certify results and the candidate to review election records) to
prepare his election-contest complaint and get it filed with the CEC.
The holding of City of Natchez v. Sullivan teaches that the Legislatures omission of a
time requirement from 23-15-923 indicates a legislative intent that a candidate in a multi-
county election contest similarly have some reasonable time (intentionally not specified) after his
12-day examination period within which to file his election-contest complaint with the state
executive committee. In another election case, this Court observed the necessity for a candidate
to examine election records before filing an election-contest complaint, posing the definitive
question: How could [the candidate] file a protest with the [executive committee] before he
obtained evidence via the examination of the ballot boxes? Harpole v. Kemper County
Democratic Executive Committee, 908 So.2d 129, 135 (Miss. 2005).
In sum, material changes in the law adopted by the Legislature in the Election Code have
made Kellum v. Johnsons interpretation of the former election statutes no longer applicable.
VII: Kellum v. Johnson was inconsistent with well-settled principles of law when it was
decided.
The Kellum decision states that it was applying the following principles of statutory
construction:
[D]ifferent parts of a statute reflect light upon each other, and
statutory provisions are regarded as in pari materia where they are
parts of the same act. Hence, a statute should be construed in its
entirety, and as a whole.
. . .
All parts of the act should be considered, compared, and
construed together.
. . .
34
Statutes should, if possible, be given a construction which will
produce reasonable results, and not uncertainty and confusion.
. . .
In construing statutes, the courts should not convict the
Legislature of unaccountable capriciousness.
237 Miss. at 585-86, 115 So.2d at 149-50. These are long established and often acknowledged
principles of statutory construction. See, for example, Adams v. Yazoo & M.V.R. Co., 75 Miss.
275, 22 So. 824 (1897)(A statute must receive such a construction that it will, if possible, make
all of its parts harmonize with each other and render them consistent with its purpose and
scope.) One year before Kellum, the Court had held, The legislative intent must be ascertained
from the provisions of the statute as a whole, and not from a segregated portion considered
apart from the rest of the statute. State ex rel. Patterson v. Board of Supervisors of Warren
County, 233 Miss. 240, 102 So.2d 198 (1958).
At the time Kellum was decided, Section 3143 of the Mississippi Code of 1942 applied
to contests of primary elections involving single county offices. That section required that any
such contest be filed with the county executive committee within 20 days after the primary
election. At the same, Section 3144 applied to contests of primary elections involving multi-
county offices and required that such contests be initiated by filing a complaint with the
appropriate state executive committee. Section 3144 did not impose a deadline for filing a
complaint. Also at that time, Section 3146 did not impose a deadline by which a state executive
committee was required to report the results of any multi-county primary election to the
Secretary of State.
By re-writing Section 3144 to insert a 20-day time requirement on candidates for state-
wide offices, the Kellum court did not construe all the related statutes together so as to give the
statutes a construction which produced a reasonable result. The Kellum decision gave a
35
candidate for state-wide office less time to review election records from 82 counties and prepare
his complaint than the Legislature had given candidates for single county offices. The
candidates for single-county offices were not required to wait on a state executive committee. If
the Kellum court had let different parts of a statute reflect light upon each other, it would have
seen that the omission of language from a similar provision on a similar subject indicates that
the legislature had a different intent in enacting the provisions, which it manifested by the
omission of the language. City of Natchez v. Sullivan, 612 So.2d 1087, 1089 (Miss. 1992).
Were this court to adopt Kellums reasoning and apply it to the current Election Code to
impose the same time requirement for multi-county contests that the Legislature adopted for
single-county contests, it would accuse the Legislature of unaccountable capriciousness. Such
imposition would create an irreconcilable conflict in the statutory scheme where none existed as
adopted by the Legislature. It would be confusing to set a time period of 22 days after a
primary election within which a candidate may review election records for the purpose of
determining whether to file an election contest (the first 10 of which a candidate must wait for
the state executive committee to certify the results of an election), but then require the candidate
to prepare and file his election dispute complaint within 20 days after the primary election - 2
days before the end of the period allowed for an initial examination of election records.
It is clear from a broader look at the system adopted in the current Election Code that
the Legislature is not guilty of such a charge. The different parts of the current Election Code
do reflect light upon each other and should be read as a whole. The omission of a specific time
requirement from 23-15-923, in light of a specific time requirement in 23-15-921, indicates
that the Legislature intended to leave unspecified the amount of time a candidate in a multi-
county contest has to file his complaint with the state executive committee. It would be obvious
36
to a casual observer (and certainly obvious to the States legislators) that a candidate for an
office covering a single county would not require as much time to discover facts and prepare a
complaint as a candidate for a state-wide office. The latter, to prepare his complaint, must
examine election returns for up to 82 counties and then synthesize that examination into an
election-contest complaint to be filed with the state executive committee.
VIII. If Kellum v. Johnson had any precedential value after the comprehensive overhaul
of the Election Code in 1986, it would have been followed in Barbour v. Gunn .
Cochrans argument that McDaniel was required to file his election-contest complaint
with the SREC within 20 days of the primary runoff flies in the face of Barbour v. Gunn, 890
So.2d 843 (Miss. 2004). In Barbour v. Gunn,, Jep Barbour and Phillip Gunn sought the
Republican nomination for House District 56 of the Mississippi House of Representatives.
The primary was held on August 5, 2003. After a close race, Jep Barbour was certified the
winner of the primary election.
On September 8, 2003, 34 days after the primary election, Phillip Gunn filed a challenge
to the primary election with the SREC pursuant to Miss. Code Ann. 23-15-923. Said statute
then read as follows:
23-15-923. State, congressional, judicial, legislative offices
Except as otherwise provided in Section 23-15-961, a person
desiring to contest the election of another returned as the nominee
in state, congressional and judicial districts, and in legislative
districts composed of more than one (1) county or parts of more
than one (1) count, upon complaint filed with the chairman of the
State Executive Committee, by petition, reciting the grounds upon
which the election is contested. If necessary and with the advice of
four (4) members of said committee, the chairman shall issue his
fiat to the chairman of the appropriate county executive
committee, and in like manner as in the county office, the county
committee shall investigate the complaint and return their findings
to the chairman of the state committee. The State Executive
Committee by majority vote of members present shall declare the
37
true results of such primary.
Pursuant to Phillip Gunns (now Speaker of the House of Representatives and
hereinafter referred to as Speaker Gunn) challenge, the SREC met with him and Jep Barbour.
The SREC received the challenge complaint and concluded that it had jurisdiction and set a date
for hearing the challenge. The date that the SREC agreed to hear the challenge was October 2,
2003. One day after setting the hearing date before the SREC, Speaker Gunn sought judicial
review pursuant to 23-15-927 of the Miss. Code Ann. which states:
23-15-927 Petition for judicial review
When and after any contest has been filed with the county
executive committee, or complaint with the State Executive
Committee, and the said executive committee having
jurisdiction shall fail to promptly meet or having met shall fail to
give with reasonable promptness the full relief required by the
facts and the law the contestant shall have the right forthwith to
file in the circuit court of the county wherein the irregularities are
charged to have occurred, or if more than one county to be
involved then in one (1) of said counties, a sworn copy of his said
protest or complaint, together with a sworn petition, setting forth
with particularity wherein the executive committee has wrongfully
failed to act or to fully and promptly investigate or has wrongfully
denied the relief prayed by said contest, with a prayer for a judicial
review therof. But such petition for a judicial review shall not be
filed unless it bear the certificate of two (2) practicing attorneys
that they and each of them have fully made an independent
investigation into the matters of fact and of law upon which the
protest and petition are based and that after such investigation
they verily believe that the said protest and petition should be
sustained and that the relief therein prayed should be granted, and
the petitioner shall give a cost bond in the sum of Three Hundred
Dollars ($300.00), with two (2) or more sufficient sureties
conditioned to pay all costs in case his petition be dismissed, and
an additional bond may be required, by the judge or chancellor, if
necessary, at any subsequent stage of the proceedings. The filing
of such petition for judicial review in the manner set forth above
shall automatically supersede and suspend the operation and effect
of the order, ruling or judgment of the executive committee
appealed from. (Emphasis supplied.)
38
The Mississippi Supreme Court, after Speaker Gunn sought judicial review, appointed
Judge Forest Johnson to preside over the election contest between Speaker Gunn and Jep
Barbour in Hinds County Circuit Court. After a hearing on the evidence, Judge Forest Johnson
entered his ruling in favor of Speaker Gunn.
Mississippi law is replete with authority that mandates the Supreme Court determine
whether or not jurisdiction exists as a threshold issue, one of the very issues on which Jep
Barbour based his appeal was jurisdiction. Even though the Mississippi Supreme Court is
already mandated to determine the sufficiency of jurisdiction of all cases before it, the parties
specifically raised the issue of jurisdiction before the Court. The Court, through Justice Graves
specifically noted the timing of Speaker Gunns appeal:
Jep Barbour was originally certified as the winner of the
Mississippi House of Representatives District 56 race in the
August 5, 2003 , Republican primary election. His opponent in
the primary, Philip Gunn, filed an election contest on September
8, 2003
890 So.2d at 844 (34 days after the primary election)
After a recitation of the facts including the one quoted above, Justice Graves then listed
the questions before the Supreme Court and the very first item that Justice Graves listed was,
Did the trial court have authority to hear the issue? Id at 845. The Court answered that
jurisdictional question quickly at paragraph 10. . . . we find that the trial court did have
authority to hear the election contest. Id at 846. The initial way jurisdiction was conferred on
the Circuit Court to hear Speaker Gunns challenge was that Speaker Gunn had filed his
election-contest complaint with the SREC, and that filing was proper under 23-15-923.
Justice Graves set out the provisions of 23-15-927 (Rev. 2001) that determines
whether or not the Circuit court had jurisdiction to even hear the complaint by Gunn:
39
When and after any contest has been filed with the county
executive committee, or complaint with the State Executive
Committee, and the said executive committee having jurisdiction
shall fail to promptly meet
Id. at 846. The threshold question for the Supreme Court to determine if the Circuit Court had
authority to hear the challenge was whether or not the challenge had been filed with the State
Executive Committee and that said executive committee had jurisdiction. So what gave the
executive committee jurisdiction? The only statute that conferred jurisdiction on the State
Executive Committee is 23-15-923. If there was any doubt whether or not this jurisdictional
issue was before the Supreme Court in Barbour v. Gunn, one could look to Justice Cobbs
dissent where she stated:
Gunn began his contest of Barbours election as the Republican
party nominee for Representative of House District 56 by filing a
complaint with the SREC, pursuant to Miss. Code Ann. 23-
15-923, on September 9, 2003.
Id. at 849. At page 847, Justice Graves goes on to state: this Court agrees that the trial court
properly found that it had jurisdiction to proceed in this matter. Again, Justice Graves recites
Miss. Code Ann. 23-15-927 and quotes the part that confers jurisdiction with the executive
committee. Jurisdiction with the executive committee can only be conferred by Miss. Code
Ann. 23-15-923.
The Mississippi Supreme Court was entirely satisfied that jurisdiction had been conferred
through the application of 23-15-923 in conjunction with 23-15-927. Notably, the Supreme
Court did not look to 23-15-921 to determine whether or not Gunn met his jurisdictional
requirements. Why? Because 23-15-923 as overhauled by the legislature in 1986 and further
amended in 1988 cleared up any ambiguity and it now rests on its own and needs no further
statutory construction interpretations.
40
Justice Cobb even recognized the overhaul of Mississippis Election Code:
The Mississippi Election Code, Miss. Code Ann 23-15-1
through 23-15-1111 (Rev.2001 & Supp.2003), is a
comprehensive, detailed set of laws governing all aspects of the
election process in the State of Mississippi. Enacted in 1986, after
years of study, it consolidated the entire body of Mississippis
election law into a unified consistent whole.
Id. at 848.
The Courts analysis of jurisdiction in Barbour v. Gunn speaks directly to the question
currently before the Court sub judice. That is, whether McDaniel satisfied the requirements of
23-15-923. The analysis employed by the Court in Barbour v. Gunn applies directly to
McDaniels challenge herein. Notably absent from the Courts analysis in Barbour v. Gunn is
any mention of Kellum v. Johnson. That absence speaks instructively. There was no reason for
the Barbour v. Gunn Court to mention or analyze Kellum, because Kellums precedential
authority was set aside with the repeal of the election statutes on which it had been based.
The Legislature in 1986 implemented a totally restructured Election Code and two years
thereafter further amended 23-15-923.
The Mississippi Election Code, Miss.Code Ann. 23-15-1
through 23-15-1111 (Rev. 2001 & Supp. 2003), is a
comprehensive, detailed set of laws governing all saspectes of the
election process in the State of Mississippi. Enacted in 1986, after
years of study, it consolidated the entire body of Mississippis
election law into a unified, consistent whole.
Barbour v. Gunn, 890 So.2d at 848. Thus, the statutory reconstruction/interpretation of 25-
15-923, as requested by the Appellee, was not required for the Hinds County Circuit Court nor
the Mississippi Supreme Court to fully comprehend and apply 23-15-923 in Barbour v. Gunn.
Neither is it required for this Court in the instant case.
41
IX. The Doctrine of sub silentio was misapplied by the Circuit Court.
After hearing this matter on August 28, 2014 in open Court and recognizing the
significance of the Barbour v. Gunn, the trial judge in the lower court in the case sub judice
delayed his ruling to determine whether or not Barbour v. Gunn overruled Kellum v. Johnson.
That afternoon, Cochran submitted another case for the Courts consideration and represented
to the trial court that the doctrine of sub silentio applied. The case submitted by Cochran was
United States v. L.A. Tucker Truck Lines, Inc. 344 U.S. 33 (1952) .
United States v. L.A. Tucker is inapplicable to the case currently before the Court. In
United States v. L.A. Tucker, the United States Supreme Court was faced with reviewing an
administrative hearing before the Interstate Commerce Commission. After a complete
administrative hearing on whether or not a certificate of convenience could be issued to a party,
one of the participants objected to the duly appointed ICC Examiner, arguing a lack of
jurisdiction because the examiner had not been appointed pursuant to 11 of the Administrative
Procedures Act (APA)(5 U.S.C.S. 1010).
The appellant in U.S. v. L.A. Tucker argued that the APA required that anyone appointed
under the APA must be qualified under that statute and suggested that failure to have a qualified
examiner would deprive the Interstate Commerce Commission of jurisdiction for determining the
propriety of issuing a Certificate of Convenience. For this proposition they turned to the case of
Wong v. McGrath, 339 U.S. 33 (1950) which involved another administrative law hearing. In
Wong, the Supreme Court was reviewing a decision from the Commissioner of Immigration and
Naturalization who had also been appointed through the APA. The appellant in U.S. v. L.A.
Tucker attempted to draw a jurisdictional inference regarding the collateral attack by writ of
habeas corpus in Wong suggesting that the Supreme Courts finding of a defect in the
42
examiners appointment was one of jurisdictional magnitude. U.S. v. L.A. Tucker, 355 U.S.
35 (1952).
That line of cases, concerning the application of the Administrative Procedures Act for
appointing examiners for administrative hearings has no application to the case sub judice.
Mississippi law is absolutely clear. The Mississippi Supreme Court must determine
whether or not it has jurisdiction and provided that it does, it must also be assured that the Court
from which the case arose also had jurisdiction. The Mississippi Supreme Court has no
discretion regarding the threshold issue of jurisdiction. Therefore, the doctrine of sub silentio
has no application to the Mississippi Supreme Court regarding jurisdictional matters.
As discussed by both Kellum and the trial court, the issue regarding a deadline for filing
an election contest is not merely a statute of limitations, but it is a condition precedent to
seeking judicial review under 23-15-927 of the Mississippi Code. Therefore, the Mississippi
Supreme Court was required to determine whether or not it had jurisdiction in Barbour v. Gunn.
Recall that Speaker Gunn filed his election challenge with the SREC pursuant to 23-15-
923, and filed it 34 days after the primary election. This is the same statute by which McDaniel
filed his election challenge with the SREC. Filing with the SREC is a condition precedent to
seeking judicial review in Circuit Court. Only after filing with the SREC may a challenger then
utilize 23-15-927 to seek judicial review in Circuit court. It is a jurisdictional condition
precedent.
While Cochran represensented to the Cirucuit Court in this case that the Mississippi
Supreme Court was silent as to jurisdicition in Barbour v. Gunn, Mississippi case law
specifically says otherwise. The pivotal case on this issue is Drummond v. State 185 So. 207
(Miss. 1938). Cochran argued to the lower court that the Mississippi Supreme Court in
43
Barbour v. Gunn just passed over in silence the jurisdictionally determinative question whether
Speaker Gunn was properly before the SREC by filing his complaint with the SREC 34 days
after the primary, but Drummond tells us otherwise:
It has been argued that inasmuch as the high court did not
mention the subject of its jurisdiction, or the question of the direct
appeal, it may be considered that it did not pass upon that
question. The authorities above cited are distinctly contrary to
any such argument, for the court was bound to pass upon the
question, as already shown. Therefore, instead of assuming
that it did not pass upon the question-which assumption would be
that it was oblivious of its duties in the premises-we must rather
assume that it considered the question so plain, that the
validity of the statute in that respect was so obvious, that it
required no discussion of the point.
Drummond v. State 185 So. 207, 210 (emphasis added).
The Court in Drummond preceded the above language with the following:
When a court takes jurisdiction, it inescapably decides that it has
jurisdiction. . . . But it can never be assumed that the distinguished
judges who composed the Court at that time were not acquainted
with the rule theretofore established as early as Stamps v. Newton,
3 How. 34, that it is the duty of an appellate court to inquire
of its own motion, even though the question is not raised by the
parties, whether the appellate court has jurisdiction. As said
in Mississippi State Highway Dept v. Haines, 162 Miss. 216 at
page 227, 139 So. 168, at 171; The Supreme court in all cases
is bound to inquire into its own jurisdiction, and decline to
exercise a power not conferred upon it by law. And, if the
question of jurisdiction is not raised by either of the parties to a
cause, it is the duty of the Supreme Court to raise it of its own
motion. As stated by the Supreme Court of the United States in
Morris v. Gilmer , 129 U.S. 315, 325, 9 S.Ct. 289, 292, 32 L.Ed.
690, 694: on every writ of error or appeal, the first and
fundamental question is that of jurisdiction, first, of this
court and then of the court from which the record comes.
This question the court is bound to ask and answer for itself, even
when not otherwise suggested and without respect to the relations
of the parties to it.
Drummond at page 209 (emphasis supplied).
44
Mississippi law leaves little doubt that the threshold issue before the Mississippi Supreme
Court in Barbour v. Gunn was not only whether or not it had jurisdiction to hear the appeal but
also whether or not the court from whence Barbour came had jurisdiction. The only statutes
conferring jurisdiction in Barbour v. Gunn are the exact same statutes relied upon by McDaniel
to bring forth his challenge - Election Code 23-15-923 and 23-15-927. Cochrans
representation to the trial court that the doctrine of sub silentio is applicable is clearly erroneous
and misplaced. Unfortunately, the trial court in its pronouncement relied on that doctrine to
dismiss the instant complaint. Record at pages 477 - 478.
Continuing the language of Drumond;
The high court in the two cases above mentioned was theretofore
bound, as a fundamental duty to ask the question and answer for
itself whether it had jurisdiction of those appeals. And it did not
have jurisdiction unless the statutes allowing the direct appeals to
it were valid. When it took jurisdiction and proceeded with the
appeals it necessarily decided that it was bound to decide, namely,
that that portion of the statute was valid which conferred the right
of such appeal, else, as said, the court could not have done
anything else than dismiss the appeal. When a court proceeds to
judgment, it necessarily implies a finding by the court that it had
jurisdiction. 34 C.J. 925; 3 C.J. 371, 372; also 15 C.J. pp. 851,
852.
Drummond at page 209. The rule set forth in Drummond has been and continues to be the law
of this State. It was reiterated more recently in Dialysis Solutions v. Mississippi Department of
Health, 96 So.3d 713 (Miss. 2012). Recognizing the Courts duty to determine jurisdiction as a
threshold issue in every case, Justice Randolph delved into the Courts authority to decide the
case before it, ultimately determining that the Court did not have jurisdictional authority to hear
the matter. The Court cited Drummond v. Sate and quoted Mississippi State Highway
Department v. Haines, 139 So. 168, 171 (1932) to hold:
45
The Supreme Court in all cases is bound to inquire into its own
jurisdiction, and decline to exercise a power not conferred upon it
by law. And, if the question of jurisdiction is not raised by either
of the parties to a cause, it is the duty of the Supreme Court to
raise it of its own motion.
Dialysis Solutions, 96 So.3d at 714.
X. To disregard the ruling in Barbour v. Gunn would create a double standard and
void the decision in Barbour v. Gunn, ab initio.
Jurisdiction in Barbour v. Gunn was conferred by two Mississippi statutes: 23-15-293
(in the SREC) and 23-15-927 (in the Circuit Court). Without these two statutes, Speaker
Gunn was not authorized to pursue the process to obtain the relief sought in his challenge.
Speaker Gunn not only prevailed with his challenge in Hinds County Circuit Court, the trial
courts decision was upheld by the Mississippi Supreme Court.
Chris McDaniel likewise filed his claim utilizing 23-15-923 which has not changed since
this Courts decision in Barbour v. Gunn.
To apply a new or different standard to Senator Chris McDaniels challenge would not
only create a double standard in the Court suggesting judicial activism, but would also void this
Courts decision in Barbour v. Gunn ab initio. If this Court were to decide that it was wrong in
its jurisdictional analysis - if the Court did not have jurisdiction to hear Speaker Gunns election
contest case because he did not file his complaint with the SREC within 20 days, then Speaker
Gunn could be removed from his office, since this Courts ruling in that case would be void ab
initio. Therefore, the Republican Partys State Executive Committees certification of Jep
Barbour as the winner would stand.
46
Judgments and decrees of courts having no jurisdiction are void ab initio. Earle v. Crum
42 Miss. 165 (1868). The Court in Earle said:
It is essential to the validity of a judgment or decree that the court
rendering it should have jurisdiction of the person and subject-
matter. And it is well settled that judgments and decrees of courts
having no jurisdiction are void ab initio. In this case, the order of
the court appointing the appellant guardian being absolutely void,
he, therefore, never was the legal guardian, and the court had no
authority over him as guardian; and the whole proceeding on said
final settlement was coram no judice, and void. Earle v. Crum at
page 166.
More recently, in Tolliver ex rel. Beneficiaries of Green v. Mladineo 987 So. 2d 989 (Miss.
App. 2007), the Court of Appeals recognized that a court without jurisdiction cannot make any
ruling or judgment. Any ruling or judgment issued by a court without jurisdiction is void ab
initio.
Although the decedents brother, alone, brought the wrongful
death claim within the applicable statute of limitations, his
complaint lacked standing. This lack of standing robs the court
of jurisdiction to hear the case. Pruitt v. Hancock Med. Ctr., 42
So.2d 797, 801 (14) (Miss.2006)(quoting McNair v. United
States Postal Service, 786 F.2d 730,737 (5
th
Cir. 1985). Thus,
any ruling on such a case is void ab initio. It follows, then, that
an amended complaint filed in a case where the original
complainant lacks standing cannot relate back to the filing of the
original complaint, because a complaint cannot relate back to a
nullity.
987 So.2d at 995 (emphasis added).
47
CONCLUSION
For all the foregoing reasons, this Court should find Election Code 23-15-923 does not
impose a specific time requirement for filing a complaint with a partys state executive
committee to contest a primary election for state-wide office; and Kellum v. Johnson has no
application to the interpretation of 23-15-923. The law favors trial of issues on the merits.
A.T.&T. v. Days Inn of Winona, 720 So.2d 178 (Miss. 1998). The judgment of the specially
appointed Circuit Court of Jones County in this matter should be reversed.
Respectfully submitted, this the 18
th
day of September, 2014.
s/ Steve C. Thornton
Mitchell H. Tyner, Sr., MSB No. 8169
TYNER LAW FIRM, P.A.
5750 I-55 North
Jackson, Mississippi 39211
Telephone: (601) 957-1113
Facsimile: (601) 957-6554
Email: mtyner@tynerlawfirm.com
Steve C. Thornton, MSB No. 9216
ATTORNEY AT LAW
P. O. Box 16465
Jackson, Mississippi 39236
Telephone: 601-982-0313
Facsimile: 601-957-6554
Attorneys for Appellant Chris McDaniel
48
CERTIFICATE OF SERVICE
I, Steve C. Thornton, attorney for the appellant Chris McDaniel, certify that I have this
day filed the foregoing Brief of Appellant with the Clerk of Court using the Mississippi
Electronic Court electronic case filing system and have served a true and correct copy of said
Brief of Appellant upon the following persons by electronic mail, addressed as follows:
Phil B. Abernethy, Esq.
phil.abernethy@butlersnow.com
Mark W. Garriga, Esq.
mark.garriga@butlersnow.com
BUTLER SNOW LLP
Post Office Box 6010
Ridgeland, Mississippi 39158-6010
ATTORNEYS FOR APPELLEE THAD COCHRAN

and
Honorable Hollis McGehee
Special Circuit Court Judge
grace12353@me.com
311 West Michigan Avenue
McComb, MS 39648
CERTIFIED this 18
th
day of September, 2014.
Steve C. Thornton
Steve C. Thornton
49