Thompson v. Attorney Gen. of Miss.

Citation555 F.Supp.3d 297
Decision Date18 August 2021
Docket NumberCAUSE NO. 3:15-CV-620-JEG-DPJ-CWR-FKB
Parties Rickey THOMPSON ; Rencie Fells, Plaintiffs v. ATTORNEY GENERAL OF the State of MISSISSIPPI; Lee County Democratic Party Executive Committee; Lee County Election Commission, Defendants
CourtU.S. District Court — Southern District of Mississippi

555 F.Supp.3d 297

Rickey THOMPSON ; Rencie Fells, Plaintiffs
ATTORNEY GENERAL OF the State of MISSISSIPPI; Lee County Democratic Party Executive Committee; Lee County Election Commission, Defendants


United States District Court, S.D. Mississippi, Northern Division, Northern Division.

Filed August 18, 2021

555 F.Supp.3d 299

Jim D. Waide, III, Waide & Associates, P.A., Willie C. Allen, Allen Law Firm, PLLC, Tupelo, MS, Carroll Edward Rhodes, Law Offices of Carroll Rhodes, Hazlehurst, MS, for Plaintiffs.

Mary Jo Woods-State Gov, Office of the Attorney General, Jackson, MS, for Defendant Attorney General of the State of Mississippi.

Margaret Sams Gratz, William C. Murphree, Mitchell, McNutt & Sams, PA, Gary L. Carnathan, Carnathan Law Office, Tupelo, MS, for Defendant Lee County Election Commission.


Daniel P. Jordan III, Chief District Court Judge:

In Shelby County v. Holder ,1 the Supreme Court invalidated the coverage formula that determined which states were required to seek preclearance under Section 5 of the Voting Rights Act of 1965. As such, no state is presently required to obtain preclearance before changing its voting laws. Because Section 5 no longer stands in the way of a state seeking to implement voting changes, we cannot compel a state to obtain preclearance. Accordingly, we hold that Mississippi may now disqualify judicial candidates based on voting laws that were enacted prior to Shelby County but never precleared.

For that reason, we grant the Mississippi Attorney General's Motion for Summary Judgment [58] and deny Plaintiffs Rencie Fells and Rickey Thompson's Motion for Summary Judgment [54]. We further find that Defendant Lee County Election Commission's Motion for Summary Judgment [42] and Plaintiffs’ Motion to Join Marcus Crump as a Party [56] are moot.2

I. Background

In January 2004, Rickey Thompson became the first elected African-American Justice Court Judge in Lee County, Mississippi. Am. Compl. [10] at 2;

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Thompson v. Att'y Gen. of Miss. , 129 F. Supp. 3d 430, 432 (S.D. Miss. 2015). His tenure was rocky, and on May 21, 2015, the Mississippi Supreme Court determined that Thompson had repeatedly engaged in misconduct and ordered him removed from office. Miss. Comm'n on Jud. Performance v. Thompson , 169 So. 3d 857, 874 (Miss. 2015). Under Mississippi law, the removal made Thompson permanently ineligible for judicial office in the state. Miss. Code. Ann. § 9-19-17.3

Nine days before the Mississippi Supreme Court's mandate, Thompson won the Democratic primary for the same position. That victory presented a dilemma for the Lee County Democratic Party and the Lee County Election Commission: If the Mississippi Supreme Court's decision had in fact rendered Thompson ineligible to again serve as a judge, then the Democratic Party could not certify Thompson as its nominee as a matter of law, and the Election Commission could not place his name on the ballot. The Lee County Democratic Party therefore sought advice from the Mississippi Attorney General, who recommended that the Party follow section 9-19-17 and select a different candidate to stand for the general election. See Thompson , 129 F. Supp. 3d at 432.

On August 21, 2015, Thompson and Fells, a voter in Thompson's district, sued the Mississippi Attorney General, the Lee County Democratic Party Executive Committee, and the Lee County Election Commission (collectively "the State"). Id. They challenged section 9-19-17, arguing that the statute violates the Voting Rights Act of 1965, the Fourteenth Amendment of the U.S. Constitution, and section 171 of the Mississippi Constitution. Id.

Soon after, we rejected Plaintiffs’ motion for a temporary restraining order, denied their request for a preliminary injunction as to their claims under Sections 2 and 5 of the Voting Rights Act, and dismissed their state-law claim. See id. at 436 ; Thompson v. Att'y Gen. of Miss. , No. 3:15-CV-620, 2015 WL 12916336, at *3 (S.D. Miss. Sept. 9, 2015).

In May 2016, Plaintiffs purported to voluntarily dismiss all claims except for their Section 5 claim. Notice of Voluntary Dismissal [51]; see supra note 2. Then, in June 2016, Plaintiffs moved for summary judgment, requesting (1) a declaratory judgment that section 9-19-17 is void and unenforceable because it violates Section 5, and (2) an injunction directing the State to conduct a special election wherein Thompson is the Democratic nominee. Mot. [54]; Mem. [55]. The State filed a cross-motion for summary judgment. Mot. [58].

We then stayed the case in January 2017, pending the Mississippi Supreme Court's decision in a related case construing section 177A of the Mississippi Constitution.4 Order [64]. In May 2017, the Mississippi

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Supreme Court held "that the phrase ‘remove from office’ found in [s]ection 177A of the Mississippi Constitution necessarily means a permanent separation from office, such that an individual judge removed from office remains ineligible to return to it." Thompson v. Att'y Gen. , 227 So. 3d 1037, 1044 (Miss. 2017). The parties subsequently submitted supplemental briefing in this case to address section 177A. Mem. [65]; Resp. [66]; Resp. [69]; Reply [71].5

The final wrinkle occurred in 2019, when Thompson was elected to the Mississippi House of Representatives; he began serving in early 2020. Considering that development, we ordered additional briefing on whether this case is moot and allowed the parties to supplement their original briefs with any new authority. Order [75]. The parties submitted that briefing, see Mem. [78]; Mem. [81]; Rebuttal [82], and we now address the mootness issue and the merits of the Section 5 claim.

II. Mootness

Mootness is "the doctrine of standing set in a time frame: The requisite personal interest that must exist at the commencement of the litigation (standing) must continue throughout its existence (mootness)." U.S. Parole Comm'n v. Geraghty , 445 U.S. 388, 397, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (citation omitted). "Generally, any set of circumstances that eliminates actual controversy after the commencement of a lawsuit renders that action moot," but there are exceptions to the mootness doctrine. Ctr. for Individual Freedom v. Carmouche , 449 F.3d 655, 661 (5th Cir. 2006).

One such exception is the class of controversies "capable of repetition, yet evading review." Id. (quoting First Nat'l Bank v. Bellotti , 435 U.S. 765, 774, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978) ). To invoke this exception, a plaintiff must show that "(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again." Fed. Election Comm'n v. Wis. Right to Life, Inc. , 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (quoting Spencer v. Kemna , 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) ). The parties have concluded that this exception applies; we agree.

Plaintiffs satisfy the first prong. "Controversy surrounding election laws ... is one of the paradigmatic circumstances in which the Supreme Court has found that full litigation can never be completed before the precise controversy (a particular election) has run its course." Ctr. for Individual Freedom , 449 F.3d at 661. Thus, "suits challenging the validity of state election laws are classic examples of cases in which the issues are ‘capable of repetition, yet evading review.’ " Id. (quoting Morial v. Judiciary Comm'n , 565 F.2d 295, 297 n.3 (5th Cir. 1977) ). Thompson was removed from office on August 13, 2015, and sought inclusion on the ballot for the November general election. The few-month period between his removal and the election was "too short" for the case to be fully litigated. Fed. Election Comm'n , 551 U.S. at 462, 127 S.Ct. 2652.

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Plaintiffs also meet the second prong. The Fifth Circuit has applied the mootness exception in election cases where any candidate would likely face the challenged restrictions in the future. For instance, in Moore v. Hosemann , Brian Moore sued the Mississippi Secretary of State after being left off the state's 2008 presidential ballot for failing to submit his qualifying papers by the statutory deadline. 591 F.3d 741, 742–43 (5th Cir. 2009). The court concluded that the case was not moot, even though Moore failed to aver that he would again run for President. Id. at 744. In reaching that conclusion, the Fifth Circuit noted that courts have applied the second prong "somewhat loosely" in election cases. Id. It then held: "As long as the complained-of deadline is in place, future candidates in Mississippi will be subject to it and will need to conform to its demands. Thus, the effects of the deadline will persist." Id. at 745 (holding that Moore satisfied "both prongs of the mootness exception"); accord Kucinich v. Tex. Democratic Party , 563 F.3d 161, 163–64 (5th Cir. 2009).

Though Thompson has not explicitly stated whether he intends to run for his prior judicial...

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