"Scotusblog" Calls Mississippi Case a "Notable Petition"

UPDATE-- 3/19/2010: Governor Haley Barbour today signed SB 3058, which sets a 5:00 p. m. deadline for turning in presidential elector paperwork to the secretary of state. The law previously set the deadline date but not the hour. The change was clearly brought about by the case discussed below. Meanwhile, the U. S. Supreme Court announced that it will consider at its April 2 conference whether it will hear Moore v. Hosemann, 09-982.

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From Ballot Access News:

Scotusblog is a highly-regarded blog that reports on news from the U.S. Supreme Court. The editors of Scotusblog routinely read all the certiorari petitions filed in the U. S. Supreme Court. Then, Scotusblog editors choose the ones they feel are somewhat likely to be [heard] by the Court.

The March 12 edition of Scotusblog has chosen Moore v. Hosemann as a “notable petition.” See here.

Moore v. Hosemann is the Mississippi case over whether Brian Moore, the 2008 Socialist Party presidential candidate, should have been on the ballot. The ballot-qualified Natural Law Party nominated Moore, but it turned in its presidential electors ten minutes past five p.m. on the deadline day. Moore sued, arguing that the statute doesn’t indicate an hour on which such paperwork is due; by contrast, almost all other election law deadlines in the election law indicate an hour, generally 5 p.m. Moore also argued that because Article II of the U.S. Constitution says state legislatures (not states in general) have authority to write election laws governing presidential elector selection, the Secretary of State doesn’t have authority to impose a 5 p.m. deadline. The U.S. District Court said the case is moot. The 5th circuit said the case is not moot, and that Moore should re-file the case in state court.

Moore appealed to the U.S. Supreme Court, arguing that the 5th circuit should have itself certified the case to the State Supreme Court, instead of forcing Moore to file an entirely new lawsuit in state court. Moore also asked the U.S. Supreme Court to decide an auxiliary procedural point in the case. That procedural point is whether states that refuse to accept normal notice that the lawsuit is filed, and instead require the plaintiff to pay for a process server, ought to reimburse the plaintiff for the cost of the process server.

These two procedural matters may seem uninteresting to many readers of this blog, but they are both of great interest to attorneys who sometimes sue state officials. The Fifth Circuit appears to be the only circuit that has ruled adversely on the procedural point about states and the costs of serving notice of a lawsuit. All the other Circuits seem to have ruled that states must reimburse plaintiffs for the cost of hiring a process server, if the states won’t accept service by postal mail.

In the U.S. Supreme Court, the case is Moore v. Hosemann, 09-982. On March 2, Mississippi had told the U.S. Supreme Court that it doesn’t wish to file a response. The U.S. Supreme Court hasn’t set a conference date for Moore v. Hosemann. When it does, perhaps the Court will ask Mississippi to respond. Moore’s attorney is Law Professor Mark R. Brown of Capital Law School in Columbus, Ohio.