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Free Citizen

This writer espouses individual liberty, free markets, and limited government.

Location: Jackson, Mississippi, United States

Monday, December 21, 2009

5th Circuit Returns Mississippi Case to Lower Court

At this posting, there are 21 comments on this article.

From Ballot Access News:

On December 18, the 5th circuit issued an opinion in Moore v Hosemann, 09-60272, the case filed by Socialist Party presidential candidate Brian Moore last year, when the Mississippi Secretary of State refused to accept his presidential elector paperwork because it was submitted at 5:10 p.m. on the filing deadline. The Secretary of State rejected the paperwork because it arrived ten minutes after he had closed his office. The building itself was still open, so the paperwork had been left at the door of the Secretary of State’s office.

On March 10, 2009, the U.S. District Court had ruled against Moore, saying the case is moot. The District Court said, “It does not seem reasonably likely that other prospective presidential candidates will fail to timely file their qualifying papers before the Secretary of State’s office closes at 5 p.m. on the date of the qualifying deadline.”

But, the 5th circuit disagreed, saying, “The Secretary has made it plain that he intends to enforce the 5 p.m. deadline in future elections. He adds that the chance is very small that Moore or any other presidential candidate will miss the deadline again. That is beside the point, however. 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.”

Therefore, the case goes back to the U.S. District Court, to settle the main issue. Moore’s case depends on the fact that Mississippi election laws do specify an hourly deadline for some kinds of paperwork. However, the law governing filings of presidential electors does not mention an hourly deadline, so the implication is that if the paperwork comes in on the deadline day at any hour, it is timely. The 5th circuit opinion also says that the U.S. District Court should refer the case to the Mississippi state courts, because generally, federal courts do not interpret or construe the actual meaning of state laws; that is a job for state courts. Therefore, probably a state court will eventually make the decision as to whether Moore’s paperwork should have been accepted.

The decision is by Judge Jerry Smith, a Reagan appointee, and is co-signed by Judge Edith Jones, another Reagan appointee, and Judge Harold DeMoss, a Bush, Sr. appointee. This is the first time the 5th Circuit has issued an opinion favorable to a minor party or independent candidate since 1996, when it invalidated a Texas law requiring independent candidate petitions to include the voter registration affidavit number of each petition signer. That case was Texas Independent Party v Kirk, 84 F.3d 178.


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