In re Election for House of Representatives District 71

987 So. 2d 917, 2008 Miss. LEXIS 68, 2008 WL 253051
CourtMississippi Supreme Court
DecidedJanuary 31, 2008
DocketNo. 2007-M-02193-SCT
StatusPublished

This text of 987 So. 2d 917 (In re Election for House of Representatives District 71) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Election for House of Representatives District 71, 987 So. 2d 917, 2008 Miss. LEXIS 68, 2008 WL 253051 (Mich. 2008).

Opinion

DIAZ, Presiding Justice,

for the Court.

STATEMENT OF THE CASE

¶ 1. On December 11, 2007, John Reeves filed a “Petition for Emergency Extraordinary Writ or, in the alternative, Mandamus, or, in the alternative, for Interlocutory Appeal with Immediate Stay, and for Other Relief’ with this Court. Reeves asked this Court to vacate the writ of mandamus issued by the Circuit Court of Hinds County compelling the Hinds County Election Commission to certify the results of the House District 71 election and the writ of prohibition canceling the partial re-vote ordered by the Commission. This Court entered an order on December 13, 2007, vacating both the writ of mandamus and the writ of prohibition issued by the trial court, and stating that an opinion would issue in due course. This is that opinion.

FACTS AND PROCEEDINGS BELOW

¶ 2. In the general election held on November 6, 2007, Wooten ran against Reeves, the incumbent, for the District 711 seat in the Mississippi House of Representatives. Wooten defeated Reeves by a vote of 1,455 to 1,258. Reeves filed a “Petition Contesting Election” with the Hinds County Election Commission. On November 20, 2007, the Hinds County Election Commission met and voted four to one to not certify the results of the House District 71 election because of alleged, material irregularities in the voting process in four split precincts.2 The Commission then voted four to one to have a re-vote on December 18, 2007, in the four split precincts where the alleged irregularities occurred.

¶ 3. On December 4, 2007, Wooten filed a “Petition for Writ of Mandamus, Writ of Prohibition, Emergency Hearing, and/or in the alternative, Complaint for Temporary Restraining Order and Preliminary Injunction” in Hinds County Circuit Court. The circuit court ruled that the Commission was required to certify the results of the

[919]*919District 71 election pursuant to Mississippi Code Sections 23-15-601 (Rev.2007) and 23-15-603 (Rev.2007). Further, the court held that the Commission was without authority under Mississippi Code Section 23-15-593 (Rev.2007) to order another election- in the four split precincts because there were no failures to comply with Mississippi Code Annotated Section 23-15-591 (Rev.2007) or Section 23-15-895 (Rev.2007). Accordingly, the court issued a writ of mandamus requiring the Commission to certify the results of the election and issued a writ of prohibition canceling the scheduled December 18 re-vote.

¶ 4. Reeves filed his petition with this Court on December 11, 2007, pursuant to Mississippi Rule of Appellate Procedure 21. Reeves contended that the trial court improperly issued the writ of mandamus because certifying election results is a discretionary function performed by county election commissions. He also argued that the trial court erred in issuing the writ of prohibition canceling the re-vote because the Commission did not exceed its authority in ordering the re-vote pursuant to Section 23-15-593.

¶ 5. In response, Wooten argued that the Commission was required by law to certify the results of the District 71 election, and thus the issuance of the writ of mandamus requiring the Commission to certify the election was proper. Wooten also argued that the Commission exceeded its authority in ordering a partial re-vote because the requirements of Section 23-15-593 were not met. Therefore, she contended, the issuance of the writ of prohibition canceling the re-vote was proper.

DISCUSSION

¶ 6. All questions of law are considered de novo by this Court. Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000).

I. Did the trial court err in issuing the writ of mandamus requiring the Commission to certify the election?

¶ 7. County election commissions are required by statute to certify election results within ten days of the election: “[T]he commissioners of election shall canvass the returns, ascertain and declare the result, and, within ten (10) days after the day of the election, shall deliver a certificate of his election to the person having the greatest number of votes[.]” Miss.Code Ann. § 23-15-601 (Rev.2007). They are also required to deliver the returns of each election to the Secretary of State. Miss. Code Ann. § 23-15-603 (Rev.2007).

¶ 8. However, if a county election commission determines that there were irregularities in the voting process “to such an extent that it is impossible to arrive at the will of the voters” at a particular precinct, the commission can have the ballot box “thrown out” and, then “order another election to be held at the box.” Miss.Code Ann. § 23-15-593 (Rev.2007). Accordingly, the commission does not have to certify the election results within ten days of the election if it determines that such irregularities have occurred or if it orders a re-vote to be held at the precinct where the irregularities occurred. Cf. Jefferson Davis County Democratic Executive Comm. v. Davies, 912 So.2d 837, 839 (Miss.2005) (county executive committee refused to announce, in accordance with Mississippi Code Section 23-15-597 (Rev.2001), name of nominee in primary election because of voting irregularities).

¶ 9- In Hinds County Democratic Executive Comm. v. Muirhead, 259 So.2d 692 (Miss.1972), this Court stated the following with respect to the issuance of writs of mandamus:

The proper function of mandamus is to supply a remedy for inaction on the part [920]*920of an official or commission to whom it is directed. It is not a substitute for, nor intended to serve, the purpose of other modes of review. It can direct an official or commission to perform its official duty or to perform a ministerial act, but it cannot project itself into the discretionary function of the official or the commission. Stated differently, it can direct action to be taken, but it cannot direct the outcome of the mandated function.

Id. at 694-95 (emphasis added). Because an election commission does not have to certify election results within ten days of the election if it finds that irregularities in the voting process have occurred that prevent the will of the voters from being determined, the certification of election results is a discretionary function, not a ministerial act. Accordingly, the trial court erred in issuing a writ of mandamus compelling the Commission to certify the results of the District 71 race.

II. Did the trial court err in issuing the writ of prohibition canceling the partial re-vote?

¶ 10. Mississippi Code Section 23-15-593 (Rev.2007) provides:

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Related

HINDS COUNTY DEMOCRATIC EXECUTIVE COM. v. Muirhead
259 So. 2d 692 (Mississippi Supreme Court, 1972)
Barbour v. Gunn
890 So. 2d 843 (Mississippi Supreme Court, 2004)
Saliba v. Saliba
753 So. 2d 1095 (Mississippi Supreme Court, 2000)
Jefferson Davis County Democratic Executive Committee v. Davies
912 So. 2d 837 (Mississippi Supreme Court, 2005)
Wilby v. Board of Supervisors
85 So. 2d 195 (Mississippi Supreme Court, 1956)

Cite This Page — Counsel Stack

Bluebook (online)
987 So. 2d 917, 2008 Miss. LEXIS 68, 2008 WL 253051, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-election-for-house-of-representatives-district-71-miss-2008.