Keyes v. Gunn

• Decision Date: 11 May 2018
• Docket Number: No. 17-60097,17-60097
• Citation: 890 F.3d 232
• Parties: Billie Faye KEYES; Joshua Allen ; Courtney Rena Fortune; Karli Ford Matthews; Shelton S. Matthews, Plaintiffs–Appellees v. Philip GUNN ; Mark Baker; Richard Bennett; Charles Jim Beckett ; Bill Denny; The Mississippi House of Representatives, Defendants–Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

890 F.3d 232

Billie Faye KEYES; Joshua Allen ; Courtney Rena Fortune; Karli Ford Matthews; Shelton S. Matthews, Plaintiffs–Appellees

v.Philip GUNN ; Mark Baker; Richard Bennett; Charles Jim Beckett ; Bill Denny; The Mississippi House of Representatives, Defendants–Appellants

No. 17-60097

United States Court of Appeals, Fifth Circuit.

May 11, 2018

John G. Corlew, Corlew, Munford & Smith, P.L.L.C., Jackson, MS, for Plaintiffs–Appellees.

Michael Brunson Wallace, Esq., Charles Edward Cowan, Wise Carter Child & Caraway, P.A., Jackson, MS, for Defendants–Appellants.

Before STEWART, Chief Judge, and JOLLY and OWEN, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

This appeal arises from an election contest in Smith County, Mississippi, which challenges the vote for a state legislative seat for District 79 in the Mississippi House of Representatives. The election resulted in a tie vote: 4,589 votes for each of the two candidates. Under established state procedures, the tie vote was resolved by drawing straws, and the winner took his seat. But not so fast. The loser of the straw-drawing contest had filed an election contest before the Mississippi House of Representatives. In accordance with the established rules, House Speaker Philip Gunn appointed a special committee to hear evidence on the election challenge. After the election-contest hearing, the special committee and the House dispossessed the winner of the seat he had won in the straw-drawing contest and seated the loser, but only after disqualifying five affidavit ballots that had previously been accepted by the Smith County election commissioners. This turn of events meant that the election had not resulted in a tie vote after all.

Five voters, who alleged they had been disqualified, then sued the Mississippi House of Representatives, House Speaker Gunn, and four of the five members of the special committee, for violating their rights under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution by rejecting their affidavit ballots and thus depriving them of their constitutional right to vote.

Because we conclude that this lawsuit presents a state election contest for a legislative seat, we hold that the district court lacked subject matter jurisdiction. We therefore reverse and remand to the district court with instructions to dismiss for lack of subject matter jurisdiction.

I.

On November 3, 2015, Mississippi held a general election, which included District 79's legislative seat in the Mississippi House of Representatives. District 79 includes all of Smith County, Mississippi.¹

In Smith County, thirty people had voted by affidavit ballot. Smith County's election commissioners "duly investigated" all thirty and found that only nine of the thirty were qualified to vote. The official vote count by Smith County officials declared the election a tie between the incumbent Democrat candidate, Blaine "Bo" Eaton, and the Republican candidate, Mark K. Tullos. The result was "duly certified" to the Secretary of State of the State of Mississippi, who tabulated the result and submitted it to the legislative branch.

One week later, in accordance with Mississippi law, and in the presence of the Governor and the Secretary of State of Mississippi, Mr. Eaton drew the longer of two straws and was thus declared the winner. See Miss. Code § 23-15-605. Mr. Eaton was later sworn in and took his seat in the House when the Mississippi Legislature convened in January 2016.

The day before drawing straws, however, Mr. Tullos had filed an election contest in the Mississippi House of Representatives. In accordance with Section 38 of the Mississippi Constitution, House Speaker Philip Gunn appointed a five-member special committee to consider the election contest. See Miss. Const. art. 4, § 38 ("Each house shall elect its own officers, and shall judge of the qualifications, return and election of its own members."). That special committee included Representatives Mark Baker, Richard Bennett, Charles Jim Beckett, and Bill Denny, who are defendants in this case.

Following hearings and a 4-1 vote, the special committee adopted a resolution recommending that Mr. Tullos be seated. The resolution stated that the special committee had disqualified five of the nine affidavit ballots that previously had been approved and accepted by the Smith County election commissioners and the Secretary of State. The special committee did not say which five of the nine were disqualified, but its resolution stated that at least one reason for discarding them had been that the five voters were incorrectly counted by Smith County and the Secretary of State, because these voters had failed to make a timely written request to transfer their voter registration upon moving to a different voting precinct.² The House agreed with the special committee, voting 67-49 to unseat Mr. Eaton and declare Mr. Tullos the winner of the election.

Thus, five Smith County voters sued Speaker Gunn, four of the five members of the special committee,³ and the Mississippi House of Representatives itself, under 42 U.S.C. § 1983, alleging that the defendants had deprived them of their right to vote and had violated their rights under the Equal Protection Clause of the Fourteenth Amendment. The five voters—Billie Faye Keyes, Joshua Allen, Courtney Rena Fortune, Karli Ford Matthews, and Shelton S. Matthews—allege that they are among the nine affidavit-ballot voters whose ballots were approved by the Smith County election commissioners and the Secretary of State, and that they "believe" their affidavit-ballots were among the five later rejected by the special committee and the House. Three of the five "suspect" that they were among those whose ballots were excluded for failure to move their registration to their new precincts. All five plaintiffs state that they voted for Mr. Eaton.

In their complaint, the plaintiffs stated that they do not seek money damages, but "only such equitable and prospective remedy, including declaratory or injunctive relief, as the Court deems appropriate to redress the violation of the federal constitutional rights of the Plaintiffs to equal protection of the law." Specifically, the plaintiffs requested "that the Court find that the actions of the Defendants in casting out affidavit ballots which these Plaintiffs and others lawfully cast ... be found in violation of the Equal Protection Clause[;] that [their] votes be counted[;] that the [result of the straw-drawing] be recognized and validated by this Court and that [Mr. Eaton's] position in the Mississippi House of Representatives be restored unto him; that the Court declare the action of the Special Committee to be in violation of the Equal Protection Clause; and that the Court award reasonable attorney fees."

In the proceedings before the district court, the defendants moved to dismiss on various grounds, including legislative immunity, qualified immunity, Eleventh Amendment immunity, lack of subject matter jurisdiction under 28 U.S.C. § 1344, lack of Article III standing, and failure to state a claim. The district court rejected each of the defenses. Finding that it had jurisdiction to consider the plaintiffs' equal-protection claims under 42 U.S.C. § 1983, the district court denied the defendants' motions to dismiss. See Keyes v. Gunn , 230 F.Supp.3d 588, 593–94, 598 (S.D. Miss. 2017). The defendants have appealed under the collateral order doctrine.

II.

"The requirement that jurisdiction be established as a threshold matter ... is inflexible and without exception." Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 94–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (quotation omitted). Thus, we must satisfy ourselves of the jurisdiction both of this court and of the district court.⁴

The issue having been properly raised by the defendants,⁵ we thus proceed to examine whether federal courts have subject matter jurisdiction over this case before we consider anything further.

We review questions of subject matter jurisdiction de novo. Jones v. United States , 625 F.3d 827, 829 (5th Cir. 2010).

III.

Congress determines the jurisdiction of the lower federal courts. U.S. Const. art. I, § 8; id. art. III, § 1; Sheldon v. Sill , 49 U.S. (8 How.) 441, 448–49, 12 L.Ed. 1147 (1850). And Congress has restricted the subject matter jurisdiction of federal courts as it relates to election disputes. See 28 U.S.C. § 1344. If a civil action, such as this one, is determined to contest the results of an election, then it must fall within the exceptions allowing federal jurisdiction under 28 U.S.C. § 1344.

Section 1344 provides:

§ 1344. Election disputes

The district courts shall have original jurisdiction of any civil action to recover possession of any office, except that of elector of President or Vice President, United States Senator, Representative in or delegate to Congress, or member of a state legislature, authorized by law to be commenced, wherein it appears that the sole question touching the title to office arises out of denial of the right to vote, to any citizen offering to vote, on account of race, color or previous condition of servitude.

The jurisdiction under this section shall extend only so far as to determine the rights of the parties to office by reason of the denial of the right, guaranteed by the Constitution of the United States and secured by any law, to enforce the right of citizens of the United States to vote in all the States.

Id. Although the arrangement of the wording is somewhat awkward, § 1344 is clear as it relates to this case: federal courts may not hear an election contest involving the office of a "member of a state legislature." ⁶

Id. ; see Johnson v. Stevenson , 170 F.2d 108, 110 (5th Cir. 1948) (" Sec. 1344 of Title 28 entitled ‘Election Disputes’ ... expressly excludes disputes concerning the office of ... [a] member of a State legislature. ... The aim of the section is to enable the district court to interfere in elections...