              IN THE SUPREME COURT OF MISSISSIPPI

                      NO. 2016-IA-00148-SCT

DR. WILLIE WILSON

v.

DELBERT HOSEMANN, IN HIS CAPACITY AS
MISSISSIPPI SECRETARY OF STATE

 ON THE SECRETARY OF STATE’S MOTION TO RECALL THE MANDATE;
    MOTION TO ALTER OR AMEND THE JUDGMENT OR FOR OTHER
                      NECESSARY RELIEF

DATE OF JUDGMENT:             02/03/2016
TRIAL JUDGE:                  HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:    HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:       SAMUEL L. BEGLEY
ATTORNEY FOR APPELLEE:        OFFICE OF THE ATTORNEY GENERAL
                              BY: HAROLD E. PIZZETTA, III
NATURE OF THE CASE:           CIVIL
DISPOSITION:                  REVERSED AND RENDERED - 02/26/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                     CONSOLIDATED WITH

                      NO. 2016-EC-00163-SCT

DR. WILLIE WILSON

v.

DELBERT HOSEMANN, IN HIS CAPACITY AS
MISSISSIPPI SECRETARY OF STATE

DATE OF JUDGMENT:             02/03/2016
TRIAL JUDGE:                  HON. WINSTON L. KIDD
COURT FROM WHICH APPEALED:    HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:       SAMUEL L. BEGLEY
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: HAROLD E. PIZZETTA, III
NATURE OF THE CASE:                        CIVIL
DISPOSITION:                               REVERSED AND RENDERED - 02/26/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, PRESIDING JUSTICE, FOR THE COURT:

¶1.    The Motion to Recall the Mandate is granted, the Motion to Alter or Amend the

Judgment or For Other Necessary Relief is granted in part, this Court’s prior opinion is

withdrawn, this opinion is substituted in its place, and the remainder of the Motion to Alter

or Amend the Judgment or For Other Necessary Relief is stricken.

¶2.    Dr. Willie Wilson timely submitted his petition and qualification papers to the

Mississippi State Democratic Executive Committee (the “Party”), to run for President in the

2016 Democratic primary. The Party rejected Dr. Wilson’s petition but later reconsidered

and requested the Mississippi Secretary of State to place Dr. Wilson’s name on the primary

ballot. But, because absentee and overseas military voting had already begun, the Secretary

of State refused. The Circuit Court of Hinds County refused to grant Dr. Wilson an

injunction and he appealed. Under the particular facts and circumstances of this case, we

find that Dr. Wilson’s due process rights were violated, so we reverse and render.

                       FACTS AND PROCEDURAL HISTORY

       The Presidential Primary Ballot Process

¶3.    The names of individuals who wish to participate in a political party’s presidential

preference primary election are placed on the ballot in two ways. First, Mississippi law


                                             2
requires the Secretary of State to include all candidates who are “generally recognized

throughout the United States or Mississippi as [candidates] for the nomination of President

of the United States.”1 The Secretary must announce those candidates on or before

December 15 in the year preceding the presidential election, and he may continue to add

names thereafter.2

¶4.    Others who wish their names to appear on the primary ballots may file petitions with

that party’s state executive committee between January 1 and January 15 of the presidential

election year.3 Their petitions must be

       signed by a total of not less than five hundred (500) qualified electors of the
       state, or . . . signed by not less than one hundred (100) qualified electors of
       each congressional district of the state.4

Then, no more than two working days following the qualifying deadline—this year by

January 19—the party must submit the names of qualified candidates to the Secretary of State

to be added to the State’s electronic Statewide Election Management System.5 Rather than

notifying Dr. Wilson prior to the January 19 deadline, the Party waited until 1:04 p.m. on

January 20—one day after the deadline had passed—to notify him that his petition had been

rejected. So, strictly applying the statutes without reading into them any grace period, the

Party did not inform Dr. Wilson that he had not qualified until after the statutory deadline to

       1
           Miss. Code. Ann. § 23-15-1089 (Rev. 2015).
       2
           Id.
       3
           Miss. Code Ann. § 23-15-1093 (Rev. 2015).
       4
           Id.
       5
           Miss. Code Ann. § 23-15-296 (Rev. 2015).

                                              3
submit his name had passed and he had lost the opportunity to timely contest the Party’s

decision.

¶5.    Three days later, absentee voting began, and the Secretary of State was required by

federal law to have mailed ballots to members of the military overseas by that time.6 So,

even had the Secretary of State ignored the January 19 deadline—again, for which

Mississippi law provides no exception— Dr. Wilson had only from 1:04 p.m. on Wednesday,

January 20, to some time on Friday, January 22, the day ballots were prepared and printed

for distribution and mailing the following day, to have the Party correct its mistake and notify

the Secretary of State that his name should be included on the ballot. It is this two-day

window of time that is the focus of the case before us today.

       Dr. Wilson’s Efforts to Have His Name Appear on the Democratic Primary
       Ballot

¶6.    Dr. Wilson’s name was not among those placed on the ballot by the Secretary of State

as a candidate generally recognized throughout the United States or Mississippi. So, on

January 14, 2016, he timely filed with the Mississippi Democratic Party a petition to have his

name added to the ballot. His petition complied in every respect with Mississippi law. But

on January 19—the statutory deadline for the Party to submit names of qualified candidates

to the Secretary of State—the Party informed the Secretary of State that Dr. Wilson had not




       6
         “Each State shall . . . transmit a validly requested absentee ballot to an absent
uniformed services voter or overseas voter . . . in the case in which the request is received
at least 45 days before an election for Federal office, not later than 45 days before the
election.” 52 U.S.C.A. § 20302(a)(8)(A).

                                               4
qualified.7 Rather than informing Dr. Wilson that same day that he had been rejected, the

Party waited until 1:04 p.m. on the following day—January 20—to advise him that his

petition had been rejected.

¶7.    The very next day—Thursday—Dr. Wilson (a resident of Chicago, Illinois) located

and retained an attorney who appealed to the Party to reconsider its incorrect decision. The

party admitted its mistake to Dr. Wilson’s attorney on Monday, January 25—three days after

the deadline to inform the Secretary of State to halt the presses and add Dr. Wilson’s name

to the ballot.

¶8.    Although the Party notified Dr. Wilson of its mistake, it did not notify the Secretary

of State, so on Wednesday, January 27—eight days after the Secretary of State’s deadline,

and five days after the deadline to correct mistakes—Dr. Wilson’s attorney threatened a

lawsuit, and the Party responded by hand-delivering a letter to the Secretary of State, stating

that Dr. Wilson had submitted a qualifying petition and asking that his name be included on

the ballot. As a result of his successful appeal to the Party to change its decision, Dr.

Wilson’s counsel also emailed the Secretary of State’s office that day asking that his name

be added to the ballot.

¶9.    Two days later—January 29—the Secretary of State’s office informed the Party that

it would not add Dr. Wilson’s name to the ballot because the Party had failed to submit his



       7
        Although Dr. Wilson’s petition contained more than double the 500 signatures
required by statute, the Party rejected it because it did not include 100 signatures from each
congressional district, as required by the Party’s Delegate Selection Plan—a requirement that
contradicted Mississippi law and had been rejected by an Attorney General opinion on June
5, 2015. Miss. Op. Att’y Gen., No. 2015-00158, 2015 WL 4394179 (June 5. 2015).

                                              5
name by the January 19 deadline, as required by law,8 and because sample ballots had been

issued and absentee voting had begun.

       The Litigation

¶10.   That afternoon, Dr. Wilson filed a complaint in the Hinds County Circuit Court,

seeking a writ of mandamus, as well as declaratory and injunctive relief, ordering the

Secretary of State to add his name to the ballot. Dr. Wilson also filed a motion for

preliminary injunction, requesting the same relief and asserting that his name constitutionally

could not be excluded from the ballot.9 On February 1, Dr. Wilson filed an amended

complaint, adding his argument that his constitutional rights to due process, freedom of

speech, and freedom of association were violated. The Secretary of State responded, arguing

that state and federal statutory deadlines precluded the Secretary of State from adding Dr.

Wilson’s name to the ballot.

¶11.   On February 1, the parties appeared for a hearing in the circuit court on Dr. Wilson’s

motion for preliminary injunction. At the end of the hearing, the circuit judge stated that he

would email his ruling that afternoon with a written order to follow. Later that afternoon he

sent the parties an email stating:



       8
           Miss. Code Ann. § 23-15-296.
       9
         Dr. Wilson has expressly waived any claim that his name should be added to
absentee ballots. In his petition for interlocutory appeal, Dr. Wilson stated “[t]he Appellant
waives any right he might have to challenge any military or absentee ballots that have been
cast or have been mailed to be completed and returned to the county circuit clerks, on
account of his name not appearing on such ballots.” At oral argument, Dr. Wilson’s counsel
reiterated that Dr. Wilson seeks an order that the Secretary of State add his name to the
electronic Statewide Election Management System.

                                              6
       The Court, after a review of this matter, finds that the Motion for Preliminary
       Injunction is not well taken and will be denied. Voting in the Democratic
       presidential primary began on January 23, 2016. Prior to initializing the voting
       process, the Secretary of State was advised by the Democratic party that Dr.
       Wilson did not qualify. Therefore, the Secretary of State, in accordance with
       statutory law, finalized ballots and, on January 23, voting began. It is too late
       to repeat the process. Any such change in this process would be in violation of
       the statutory deadlines set forth in Mississippi and federal law. The plaintiff
       has not met the requirements for a preliminary injunction and the same is
       hereby denied.

¶12.   So the next day—February 2—Dr. Wilson filed a notice of appeal, and the following

day—February 3—he filed a “Petition for Expedited and Emergency Consideration of

Appeal, For Permission to Appeal of [sic] Interlocutory Order, and for Mandamus Adding

Appellant’s Name to the Ballot.” This petition argued that the failure to add his name to the

ballot violated both his constitutional rights and those of the signatories to his petition. On

February 4, the circuit judge entered his written order, repeating his ruling from the email.

¶13.   Dr. Wilson’s appeal of the circuit court’s order denying his motion for a preliminary

injunction technically is interlocutory in nature. But applying our precedent in Gibson v.

Manuel,10 we find the circuit judge’s order effectively “leaves the parties with little else to

litigate” in the circuit court. So we grant Dr. Wilson’s petition for interlocutory appeal,

consolidate the records from the direct and interlocutory appeals, reverse and render

judgment in Dr. Wilson’s favor, order that the Secretary of State add Dr. Wilson’s name to

Mississippi’s electronic Statewide Election Management System, and dismiss the direct

appeal as moot.

                                        ANALYSIS

       10
            Gibson v. Manuel, 534 So. 2d 199, 200–1 (Miss. 1988).

                                              7
¶14.   Dr. Wilson argues that, because he met the statutory requirements to qualify to run in

the Mississippi Democratic Presidential Preference Primary Election, his due process and

First Amendment rights—as well as those of the signatories to his qualifying petition—have

been violated by the exclusion of his name from the ballot. We conclude that the Party’s

failure to timely inform Dr. Wilson that it found his petition insufficient and to timely

respond to his attorney’s request to reconsider, coupled with the January 19 and 23 statutory

deadlines to submit names and send ballots to overseas and military voters, denied Dr.

Wilson a meaningful opportunity to be heard by the Party and deprived him of due process

of law.

¶15.   In Meeks v. Tallahatchie County, we considered a political candidate’s legal

challenge to a political party’s determination that he had not qualified to run for office.11

There, Eddie Meeks sought the Democratic Party’s nomination for justice court judge in

Tallahatchie County.12 At the time, Meeks served as Chairman of the Tallahatchie County

Elections Commission.13 At a meeting to consider candidate certification, the Tallahatchie

County Democratic Party Elections Committee determined that Meeks was ineligible to run

and refused to certify him as a candidate.14




       11
            Meeks v. Tallahatchie Cty., 513 So. 2d 563 (Miss. 1987).
       12
            Id. at 564.
       13
            Id.
       14
            Id.

                                               8
¶16.   Meeks, upon hearing that the Party had voted to deny his certification, appeared

before the committee and argued that he could be certified as a candidate.15 The Party stood

by its decision, and Meeks sought an order from the Tallahatchie County Circuit Court to

have his name placed on the ballot.16 The circuit judge denied relief and Meeks appealed.17

¶17.   On appeal, in addressing Meeks’s argument that the Party had denied him due process

of law, we held:

       Without doubt, election to public office is a public function and any integral
       part of that function must be constitutional. The nomination process may
       appear to be more a private than a governmental function because it is
       conducted by political parties. Appearances notwithstanding, our law
       recognizes that the selection of party nominees by primary elections is an
       integral part of the entire election process. . . . [T]he primary election process
       is sufficiently state action that persons affected by it and participating in it
       have available due process protections.18

¶18.   Applying that principle, we held that:

       [W]hen one files the proper qualifying papers and pays the requisite filing fee
       to become a candidate for public office, neither the state nor, in the case of a
       primary election, a political party may arbitrarily or capriciously deprive him
       or her of a place on the ballot. [The candidate is] entitled to due process
       protections on two levels. First, he [is] entitled to the opportunity to be heard.




       15
            Id.
       16
            Id.
       17
            Id.
       18
         Id. (citing Fanning v. State, 497 So. 2d 70, 72 (Miss. 1986); Miss. State Bd. of
Election Comm’rs v. Meredith, 301 So. 2d 571, 573 (Miss.1974); Terry v. Adams, 345 U.S.
461, 73 S. Ct. 809, 97 L. Ed. 1152 (1953); Smith v. Allwright, 321 U.S. 649, 64 S. Ct. 757,
88 L. Ed. 987 (1944); United States v. Classic, 313 U.S. 299, 61 S. Ct. 1031, 85 L. Ed. 1368
(1941)).

                                                9
       Second, he [is] entitled that his name not be finally stricken from the ballot
       except that result be required by law.19

¶19.   And we made it clear that:

       [w]here the executive committee decides that a person is not eligible, however,
       and where that person wishes to be heard regarding the matter, the executive
       committee, as a matter of due process, is required to allow the disqualified
       candidate a reasonable opportunity to present his case.20

¶20.   Meeks instructs us on Dr. Wilson’s claim in two ways. First, because the Party

initially determined his petition did not qualify him to run in the primary election, Meeks

obligated the Party to provide Dr. Wilson “a reasonable opportunity to present his case.”21

That did not occur. And while the Party ultimately listened to Dr. Wilson’s attorney and

reversed its decision, it did so too late to provide meaningful due process protection.

¶21.   Granting due process after it is too late is not due process. As the United States

Supreme Court has explained, “[i]f the right to notice and a hearing is to serve its full

purpose, then, it is clear that it must be granted at a time when the deprivation can still be

prevented.”22 Here, as a result of extremely tight statutory deadlines and the Party’s failure

to timely reach a correct decision, Dr. Wilson was provided no such opportunity.

¶22.   Dr. Wilson timely filed his petition one day early, on January 14. Under Section 23-

15-296, the Mississippi Democratic Party had until Monday, January 19, to submit Dr.


       19
            Meeks, 513 So. 2d at 565.
       20
            Id.
       21
            Id.
       22
        Fuentes v. Shevin, 407 U.S. 67, 81, 92 S. Ct. 1983, 1994, 32 L. Ed. 2d 556 (1972)
(emphasis added).

                                             10
Wilson’s name to the Secretary of State as a qualified candidate. Prior to that day, the Party

provided Dr. Wilson no indication that it would deny his petition. On January 19, the Party

informed the Secretary of State’s office that one candidate—Roque De La Fuente—had

qualified by petition, but that Dr. Wilson had not. The Party waited until 1:04 p.m. the

following day to inform Dr. Wilson. At this point, when the Party first informed Dr. Wilson

that his petition had been deemed inadequate, the statutory deadline to submit names for the

ballot already had passed. In other words, Dr. Wilson was not “granted [an opportunity to

be heard] at a time when the deprivation can still be prevented” because the Party did not

inform Dr. Wilson that he had not qualified until after the statutory deadline to submit his

name to the Secretary of State had passed.

¶23.   Even then, Dr. Wilson took immediate action to correct the Party’s error by hiring an

attorney who, on January 22, presented his case to the Party. But rather than immediately

reviewing the matter and reversing its decision in time to have the ballots corrected before

mailing on January 23,23 the Party once again denied Dr. Wilson a meaningful opportunity

to be heard. The Party waited until Monday, January 25—after the ballots were mailed and

absentee voting had begun—to admit its mistake to Dr. Wilson’s attorney. And even then,

the Party waited two more days to inform the Secretary of State.




       23
         Once again, this assumes the Secretary of State would have ignored the January 19
deadline, which no Mississippi law permits him to do. Under Mississippi law, Dr. Wilson
was deprived of due process when the January 19 deadline passed without his being
provided an opportunity to present his case. We discuss Dr. Wilson’s efforts after January
19 simply to illustrate that he diligently attempted to litigate his case as soon as the Party
provided him an opportunity to do so.

                                             11
¶24.   So, in sum, Meeks required the Party to provide Dr. Wilson a meaningful opportunity

to present his case. And in order for the opportunity to be meaningful, it must have occurred

when the harm—leaving Dr. Wilson off the ballot—still could be remedied. The Party’s

delay, coupled with the January 19 and 23 deadlines, denied Dr. Wilson that chance. In other

words, under Meeks, Dr. Wilson was denied due process of law.

¶25.   But Meeks is instructive for a second reason. At oral argument, the attorney for the

Secretary of State argued that when Dr. Wilson learned the Party had rejected his petition on

Wednesday afternoon, he had until Friday afternoon to go into the court system; and that by

not doing so, he waived any remedy to the violation of his constitutional rights.24 Mississippi

law holds otherwise.

¶26.   As explained above, Meeks also involved a political party’s determination that a

candidate had not qualified for the primary.25 There, discussing the candidate’s challenge,

this Court held:

       Where the executive committee decides that a person is not eligible, however,
       and where that person wishes to be heard regarding the matter, the executive
       committee, as a matter of due process, is required to allow the disqualified
       candidate a reasonable opportunity to present his case.26




       24
         Although it is not dispositive in this case, we note here that it would require
enormous optimism for one to conclude that Dr. Wilson (a Chicago resident) could hire
Mississippi counsel who, in turn, could then research the law, gather evidence, draft
pleadings, obtain a hearing and decision from the Hinds County Circuit Court and a reversal
from this Court, all in approximately two days.
       25
            Meeks, 513 So. 2d at 563.
       26
            Id. at 565.

                                              12
¶27.   We certainly cannot now fault Dr. Wilson for following the very procedure that we

articulated in Meeks. Also, Sections 23-15-923 and 23-15-961—both of which govern

election contests and an opponent’s challenge to a political party’s eligibility

determinations—require that a contesting candidate seek recourse with the party executive

committee before seeking a judicial remedy. Section 23-15-1087 states that “[e]xcept as

otherwise provided in this chapter, the laws regulating primary and general elections shall

in so far as practical apply to and govern presidential preference primary elections.” So, both

caselaw and statutes required Dr. Wilson first to seek a remedy from the Party. He did so but

was denied a meaningful opportunity to be heard.

¶28.   Remarkably, the dissenting Justices—while conceding that Dr. Wilson’s rights were

violated—would provide him relief only had he ignored our precedent in Meeks and

proceeded directly into the courts, or sought a “formal hearing” with the Party. Chief Justice

Waller criticizes Dr. Wilson’s counsel’s efforts to persuade the Party to change its decision,

labeling his attempts to “negotiate” and “work things out” as “haggling.”27 We find this

criticism unjustified, particularly in light of counsel’s immediate and concerted efforts to

persuade the Party to change its decision in the two-day snippet of time available to him.

¶29.   Meeks includes no requirement that counsel seek a “formal hearing.” Indeed, the due

process right addressed in Meeks is not the right to procedural formality, but rather the right




       27
          Dr. Wilson’s attempts to “haggle” with the Party were hardly “futile,” as
characterized by Chief Justice Waller’s dissent. Dr. Wilson successfully persuaded the Party
to change its decision.

                                              13
to be heard in a meaningful way28 at a time when redress can be provided.29 Dr. Wilson

sought the opportunity to be heard—exactly as this Court required in Meeks. As soon as he

knew the Party had rejected his petition, he retained an attorney who immediately sought

relief, first from the Party, and then from the courts.

¶30.   Further, Chief Justice Waller’s dissent requirements of Dr. Wilson during the two-day

period between January 20 and January 22 border on optimistic fantasy. To suggest that Dr.

Wilson’s counsel was less than diligent—negligent, really—for not doing more than he did

during that two-day time frame, strikes us as unfair for several reasons.

¶31.   First, the Party’s actions and the statutory procedures for securing a place on the

primary ballot provided Dr. Wilson no chance to do so. The deadline for the Party to notify

the Secretary of State of the names of qualified candidates was January 19, and that deadline

passed before Dr. Wilson even received notice that the Party had rejected his petition.

Mississippi statutory law provides no exception for the January 19 deadline. So no statutory

remedy was available for Dr. Wilson—once he was rejected—ever to get on the ballot.

¶32.   The dissents’ views that Dr. Wilson’s counsel should have ignored Meeks and gone

directly into the courts ignore the practical reality that, even had Dr. Wilson filed his



       28
         Id. (“True, the hearing afforded Meeks was somewhat unorthodox in the sense that
Meeks informally got word that the Committee was meeting, had acted negatively upon his
candidacy, and that he then went uninvited to the meeting. No matter. What is
important—indeed, outcome determinative—is that Meeks appeared before the Committee
and fully presented his views and his case.”).
       29
         Fuentes, 407 U.S. at 81 (“If the right to notice and a hearing is to serve its full
purpose, then, it is clear that it must be granted at a time when the deprivation can still be
prevented.”) (emphasis added).

                                              14
complaint on January 20, he still would not have been on the ballot by January 23. Dr.

Wilson did not learn of his rejection until 1:04 p.m. on January 20. So, between 1:04 p.m.

on Wednesday afternoon and sometime on Friday—in time to get to the printer—Dr. Wilson,

who lives in Chicago, would have had to employ Mississippi counsel, file a complaint in the

Hinds County Circuit Court, participate in a hearing, obtain the trial-court ruling, file an

appeal, and have his appeal heard and decided by this Court. No member of this Court, nor

the bench and bar at large, can believe this could have happened. So, even had Dr. Wilson

skipped any attempt to have the Party change its decision and gone directly into the courts,

the ballots still would have been mailed out on January 23 without his name, and we would

be right where we are today.

¶33.   The practical result of the dissenting justices’ view of the requirements for a

wrongfully rejected candidate to seek and obtain relief for a violation of his or her

constitutional rights, would be effectively granting the power to political parties to prevent

any person they desire from qualifying as a candidate.

¶34.   We note that the dissent by Chief Justice Waller repeatedly states that “Dr. Willie

Wilson waited until January 29, 2016, to raise a formal objection to the Secretary of State’s

refusal to place his name on the Democratic primary ballot.” Since January 29 was the very

day the Secretary of State refused to put Dr. Wilson’s name on the ballot, we fail to see how

he could have objected earlier.

¶35.   The dissents’ criticism of Dr. Wilson for not suing the Democratic Party deserves little

attention. The Democratic Party could afford Dr. Wilson no remedy. It already had agreed



                                             15
that Dr. Wilson’s name should be on the ballot and had asked the Secretary of State—who

controlled the electronic Statewide Election Management System—to add Dr. Wilson’s

name. Dr. Wilson’s constitutional rights were violated, and he was entitled to file suit

against the party in a position to grant him relief.

¶36.     This is not unusual.       For instance, in Gideon v. Wainwright—a landmark

constitutional-law decision—Circuit Judge Robert McCrary violated Clarence Earl Gideon’s

constitutional rights by refusing to appoint him counsel. Gideon sought a remedy for the

constitutional violation—not by suing Judge McCrary, who could provide him no

remedy—but by suing the party who was in a position to provide him a remedy for the

constitutional violation.30

¶37.     And as a final note, we point out that the defendant in Gideon—the Secretary of the

Florida Department of Corrections—was a proper defendant who lost in the litigation, even

though he had followed all Florida statutes and United States Supreme Court precedent. So

because only the Secretary of State could provide Dr. Wilson a remedy for the constitutional

violation, we must reject the dissents’ suggestion that he should have sued the Democratic

Party.

¶38.     Having concluded that Dr. Wilson was denied due process, we now must consider the

appropriate remedy. In both this Court and the circuit court, Dr. Wilson has asked that the

Secretary of State to be ordered to add his name to the State’s electronic Statewide Election




         30
              Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963).

                                               16
Management System. He has waived any right to challenge any ballot already printed or

issued.

¶39.      The Secretary of State, contending that we should grant no relief, argues that federal

law prohibits inconsistent ballots, so this Court cannot honor Dr. Wilson’s waiver, and that

federal statutory deadlines preclude issuing new absentee ballots at this time. We conclude

that neither federal nor state law precludes us from honoring Dr. Wilson’s waiver.

¶40.      As a general matter, only injunctive relief can remedy Dr. Wilson’s injury. For

instance, in Wallace v. Election Commission of the Town of Edwards, this Court found that

the appropriate remedy when a qualified candidate was excluded from a ballot was a writ of

mandamus ordering that his name be added to the ballot.31 Here, the dispute centers on

whether federal law precludes this Court from applying that remedy.

¶41.      The Secretary of State argues that the United States Court of Appeals for the Fourth

Circuit, in Perry v. Judd, held that federal law—specifically United States Code Title 52,

Section 20302—requires states wishing to add new candidates to the ballot to issue all-new

absentee ballots to overseas and military voters.32 We do not agree. Section 20302 was not

at issue in Perry. That statute was mentioned by the court when it explained that it

considered the case on an expedited basis because the forty-five-day deadline to mail

absentee ballots under Section 20302 soon would arrive.33


          31
               Wallace v. Election Comm’n of the Town of Edwards, 118 So. 3d 568, 570 (Miss.
2013).
          32
               Perry v. Judd, 471 Fed. Appx. 219 (4th Cir. 2012). See 52 U.S.C. § 20302 (2009)
          33
               Id. at 220.

                                                17
¶42.   While the Fourth Circuit did state that, in that case, the State would be required to

issue new absentee ballots, it did not analyze Section 20302, nor did it cite any opinion

discussing or relying on Section 20302.34 We cannot agree that the Fourth Circuit found that

Section 20302 required new absentee ballots in the case before us today.

¶43.   We are more persuaded by the United States District Court for the Middle District of

Pennsylvania in United States v. Pennsylvania.35 There, Ralph Nader and Peter Miguel

Camejo had been candidates for President and Vice President of the United States when

Pennsylvania prepared and mailed absentee ballots under Section 20302.36 But their

qualifications to run were subject to a subsequent legal challenge, and their names were

ordered off the ballot.37 The United States Department of Justice then sued Pennsylvania,

seeking an order for the State to issue new ballots, without Nader’s and Camejo’s names, to

all voters who received ballots under Section 20302.38 The United States District Court for

the Middle District of Pennsylvania denied the request, explaining that:

       The Government contends that the fact that UOCAVA39 protected individuals
       have received ballots including the names of Nader and Camejo rather than the
       final ballot as certified on October 13, 2004, that excludes those names
       represents an UOCAVA violation. As the Commonwealth Defendants note,

       34
            Id. at 227.
       35
            United States v. Pennsylvania, 2004 WL 2384999 (M.D. Penn. Oct. 20, 2004).
       36
            Id. at *1.
       37
            Id.
       38
            Id.
       39
        “UOCAVA” stands for “Uniformed and Overseas Citizens Absentee Voting Act.”
See 52 U.S.C. § 20302.

                                            18
       this fact does not ipso facto support a finding that the Commonwealth is in
       violation of UOCAVA. As UOCAVA does not govern ballot content, the
       burden is on Plaintiff to establish that the alleged ballot defect undermines the
       right of UOCAVA voters to cast their ballots.40

¶44.   We agree with the assessment by the district court that Section 20302 does not

“govern ballot content.” Nowhere does the statute require that subsequent ballots be issued

when a ballot change occurs. Rather, the statute focuses on the right of voters timely to

receive and submit ballots.41

¶45.   In fact, the District Court focused its inquiry on the fact that “UOCAVA voters will,

like all other absentee voters in Pennsylvania, vote the ballot that was legally correct at the

time they requested and were provided absentee ballots.”42 It also noted that there was “no

indication that UOCAVA voters irreparably would be harmed by casting the same ballot as

every other absentee voter registered in the state who received a similar ballot.”43 We craft

a similar remedy here by honoring Dr. Wilson’s waiver and ordering that his name be

included in the electronic Statewide Election Management System so that it may be made

available through electronic voting machines on March 8.

                                      CONCLUSION

¶46.   We grant Dr. Wilson’s petition for interlocutory appeal and order the Secretary of

State to add Dr. Wilson’s name to the electronic Statewide Election Management System,


       40
            Id. at *4.
       41
            52 U.S.C. § 20302.
       42
            United States v. Pennsylvania, 2004 WL 2384999, at *4 (emphasis added).
       43
            Id.

                                              19
so that it may be made available through electronic voting machines for the Democratic

primary on March 8. We also order that any voting precincts using paper ballots for the

March 8 election prepare ballots that include Dr. Wilson as a candidate. However, Dr.

Wilson’s name is not required to be added to any absentee ballots prepared or issued to

voters. Finally, we accept Dr. Wilson’s express waiver of any right to challenge absentee

ballots going forward. No motion for rehearing will be allowed and the Clerk of Court is

directed immediately to issue the mandate.

¶47.   REVERSED AND RENDERED.

     RANDOLPH, P.J., KITCHENS, KING, COLEMAN AND BEAM, JJ.,
CONCUR. WALLER, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION
JOINED BY LAMAR AND MAXWELL, JJ. MAXWELL, J., DISSENTS WITH
SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J.

       WALLER, CHIEF JUSTICE, DISSENTING:

¶48.   “States have important interests in protecting the integrity of their political processes

. . . [and] ensuring that their election processes are efficient . . . .” Clements v. Fashing, 457

U.S. 957, 965, 102 S. Ct. 2836, 73 L. Ed. 2d 508 (1982). “As time passes, the state’s interest

in proceeding with the election increases in importance as resources are committed and

irrevocable decisions are made, and the candidate’s claim to be a serious candidate who has

received a serious injury becomes less credible by his having slept on his rights.” Kay v.

Austin, 621 F.2d 809, 813 (6th Cir. 1980). Voting for the Democratic Presidential Primary

began in Mississippi on January 23, 2016. Dr. Willie Wilson waited until January 29, 2016,

to raise a formal objection to the Secretary of State’s refusal to place his name on the

Democratic primary ballot. The majority’s remedy – ordering Wilson’s name to be placed

                                               20
on the ballots to be cast on March 8, 2016, all while accepting absentee ballots which exclude

Wilson – cannot be reconciled with the State’s interest in ensuring the integrity of the

election process. For this reason, I cannot join the majority.

¶49.   Federal law mandates that absentee ballots for uniformed services voters and overseas

voters (“UOCAVA voters”) be transmitted forty-five days before a scheduled primary

election. Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. § 20302(a)(8)

(2009). Mississippi’s presidential preference primary election will be held on March 8, 2016.

Thus, in order to comply with the federal mandate, Mississippi transmitted ballots to

UOCAVA voters on January 23, 2016. To aid compliance with the federal mandate,

Mississippi requires political parties to inform the Secretary of State of qualifying candidates

for a presidential preference primary by January 19. See Miss. Code §§ 23-15-296, 23-15-

1093 (Rev. 2015). This quick process provides little room for delay.

¶50.   In today’s case, the Mississippi Democratic Party informed the Secretary of State on

January 19, 2016, that Wilson did not qualify for the presidential preference primary. The

party informed Wilson of its decision on January 20, 2016. With the well-known January 23,

2016, deadline quickly approaching, Wilson opted to “negotiate” and “tried to work things

out” with the Democratic Party. Instead of pursuing a formal hearing with the party or

seeking immediate judicial intervention, Wilson continued to “haggle” with the party.

¶51.   There is no dispute that Wilson had – at one time – the right to be on the Democratic

primary ballot. See Meeks v. State, 513 So. 2d 563, 564-65 (Miss. 1987) (“[W]hen one files

the proper qualifying papers and pays the requisite filing fee to become a candidate for public



                                              21
office, neither the state nor, in the case of a primary election, a political party may arbitrarily

or capriciously deprive him or her of a place on the ballot.”). See also Kay, 621 F. 2d at 811

(“[T]he right to be a candidate has been recognized as an important . . . interest.”).

¶52.   Wilson’s right, however, must be considered along with the state’s “compelling

interest in maintaining the stability of its electoral system.” Id. And “[a] state’s interest in

proceeding with an election increases as time passes, decisions are made, and money is

spent.” Nader v. Blackwell, 230 F. 3d 833, 835 (6th Cir. 2000).

¶53.   In order to balance these two interests, political candidates must pursue claims

diligently. Kay, 621 F. 2d at 813. See also Fulani v. Hogsett, 917 F. 2d 1028, 1031 (7th Cir.

1990) (To prevent prejudice to the state, political candidate’s claim “must be expressed

expeditiously.”). Although candidates who take proper steps to run for political office have

a right to be on the ballot, “there is no constitutional right to procrastinate.” Dobson v.

Dunlap, 576 F. Supp. 2d 181, 183 (D. Me. 2008).

¶54.   “[T]here must be a substantial regulation of elections if they are to be fair and honest

and if some sort of order, rather than chaos, is to accompany the democratic processes.”

Anderson v. Celebrezze, 460 U.S. 780, 788, 103 S. Ct. 1564, 75 L. Ed. 2d 547 (1983) (citing

Storer v. Brown, 415 U.S. 724, 730, 94 S. Ct. 1274, 1279, 39 L. Ed. 2d 714 (1974)). To

protect the state’s interest in providing a fair democratic process, reasonable and

nondiscriminatory restrictions are justifiable. Id.; see also Williams v. Rhodes, 393 U.S. 23,

43, 89 S. Ct. 5, 21 L. Ed. 2d 24 (1968) (“[T]he State may limit the right of political

association by invoking an impelling policy justification for doing so.”). Such restrictions



                                                22
are even more crucial in a presidential primary election, when the outcome “has an impact

beyond [a state’s] own borders.” Id. at 795, 103 S. Ct. 1564. Moreover, the state’s interest

in ensuring the “uniformity, fairness, accuracy, and integrity” of elections aids compliance

with the strict forty-five-day deadline for UOCAVA voters. Perry v. Judd, 471 Fed. Appx.

219, 227 (4th Cir. 2012).

¶55.   Considering the state’s important interest in protecting the integrity of the election

process, courts routinely have denied relief to candidates seeking ballot access. Often, courts

deny relief based on the candidate’s delay in challenging a ballot. In Westerman v. Nelson,

409 U.S. 1236, 1236-37, 93 S. Ct. 252, 34 L. Ed. 2d 207 (1972), Justice Douglas recognized

that the petitioner’s “complaint may have merit,” but denied relief solely on timeliness: “in

fairness to the parties I must deny the injunction, not because the cause lacks merit but

because the orderly election process would likely be disrupted by so late an action. The time

element has plagued many of these election cases; but one in my position cannot give relief

in a responsible way when the application is [as] tardy as this one.”

¶56.   In Dobson, an independent candidate and voters supporting the candidate challenged

Maine’s statutory election deadlines and sought an injunction. Dobson, 576 F. Supp. 2d at

182. In denying the petitioners’ “last minute” challenge, the district court considered the

prejudicial effect of an untimely ballot change. Id. at 187-88. The court noted that the

Secretary of State had taken steps to prepare and print ballots, and that any injunction at that

point could “run the risk of restricting the voting rights of other voters, including overseas

members of the military.” Id. at 188. Ultimately, the court found that “prejudice to the



                                              23
Secretary in stopping the printing presses is manifest” and denied relief. Id. In Kay, the

Michigan Secretary of State refused to place a presidential primary candidate on the ballot,

despite the candidate’s assertion that he met the minimum statutory requirements to run as

a nationally recognized candidate. Kay, 621 F. 2d at 810. In affirming the district court’s

denial of relief, the Sixth Circuit found that the candidate waited too long to challenge the

Secretary of State’s decision. Id. at 813.

¶57.   In addition to charging candidates with the duty expeditiously to pursue ballot

challenges, courts also require candidates to be aware of the statutory deadlines. See

Fishman v. Schaffer, 429 U.S. 1325, 1327, 97 S. Ct. 14, 50 L. Ed. 2d 56 (1976) (denying

relief, in part, because candidate was aware of statutory requirements and “could have

brought suit earlier”); Perry v. Judd, 471 Fed. Appx. 219, 224-25 (4th Cir. 2012) (denying

candidate’s “eleventh hour” challenge to Virginia election laws “which have been on the

books for years” and noting “Movant’s delay was not the result of a lack of notice or clarity

on the part of Virginia . . . . If Movant believed this provision violated the Constitution, he

could and should have acted expeditiously); Reform Party of Alabama v. Bennett, 18 F.

Supp. 2d 1342, 1351-52 (M.D. Ala. 1998) (denying constitutional claim due to candidates’

failure to ascertain political party’s status as major or minor party and holding candidates

“are charged with knowledge of the law and are required to comply with its terms”).

¶58.   Today’s case is similar to Esiason v. Washington County Board of Elections, 220

A.D. 2d 878, 878 (N.Y. App. Div. 1995), where, due to a misunderstanding between the

Commissioner of Elections and the candidate, the candidate untimely filed certificates of



                                              24
nomination. Despite the candidate having a “sympathetic case,” the New York court denied

relief: “relaxing the mandatory filing requirements would not only render the various

deadlines set forth in the Election Law utterly meaningless, but would also interject

confusion and inequality into a process where the Legislature plainly intended stability and

uniformity to prevail.” Id. at 879. The court further held “the mere fact that petitioners were

not directly responsible for the failure to file relevant certificates in a timely fashion is of no

moment.” Id.

¶59.   Wilson’s case, too, is sympathetic. The Mississippi Democratic Party now admits that

Wilson met Mississippi’s statutory requirements for inclusion on the presidential preference

primary ballot. Wilson, however, is not without fault. Mississippi’s deadline to comply with

UOCAVA was January 23, 2016. Wilson waited until January 29, 2016, to lodge a formal

complaint challenging the Secretary of State’s decision not to include Wilson on the ballot.

Seemingly lost in Wilson’s pleadings is recognition that the Mississippi Democratic Party

– not the Secretary of State – incorrectly decided to exclude Wilson from the ballot. Wilson

did not name the Democratic Party as a party in today’s case. And, while Wilson had the

right to challenge the party’s decision through a formal hearing, he chose a different route.

See Meeks, 513 So. 2d 563.

¶60.   Wilson should have sought judicial intervention with the Secretary of State rather than

engaging in the clearly futile attempt to “negotiate” with the Party prior to the Secretary of

State’s qualification deadlines. Cf. Miss. Dep’t of Envtl. Quality v. Weems, 653 So. 2d 266,

(Miss. 1995) (quoting Ellington & Assocs., Inc., et al. v. Keefe, 410 N.W.2d 857, 860 (Minn.



                                                25
App. 1987)) (“[T]he doctrine of exhaustion of administrative remedies does not require that

futile attempts at administrative relief be taken before seeking a judicial determination.”).

The deadlines imposed by federal law and the State’s interest in ensuring the “uniformity,

fairness, accuracy, and integrity” of elections leave no room for casual negotiations, and

Wilson is charged with knowledge of these deadlines. By waiting to raise a formal challenge

to his exclusion from the ballot, Wilson allowed the strictly imposed federal deadline to pass

and Mississippi’s election machinery to begin running. Wilson – and the majority – sidestep

these facts by “waiving” any challenge to Wilson’s name being on UOCAVA or other

absentee ballots. Now, UOCAVA and absentee voters will receive different ballots than

those cast on March 8, 2016. This remedy wholly fails to recognize the State’s interest in

regulating elections and the resulting prejudice from a late ballot change. The practical effect

of the majority’s opinion is to invalidate Mississippi’s candidacy deadlines, as the tardiness

of a party’s internal processes or the candidate’s actions to seek redress now are of no

moment.

¶61.   For these reasons, I cannot join the majority.

       LAMAR AND MAXWELL, JJ., JOIN THIS OPINION.

       MAXWELL, JUSTICE, DISSENTING:

¶62.   All justices agree the party wrongly excluded Wilson from the ballot, but the remedy

for this error is the sticking point. While I do not doubt the majority’s sincere belief that

complying with this court’s order will not place the Secretary of State in violation of

UOCAVA and other federal election laws, that issue remains to be seen. And this court’s



                                              26
order in no way shields the Secretary—or the validity of the Mississippi’s Democratic

primary itself—from federal challenge. Also, adding a candidate midstream, causing

absentee voters to choose from different pools of candidates than those in ballots cast on

March 8, 2016, has potential to disenfranchise voters and begs the question of just how late

a candidate can be added. So I do not join the majority. I instead agree with the gist of Chief

Justice Waller’s point that Dr. Wilson’s delay while trying to “negotiate”—instead of seeking

a formal hearing with the party, then immediate judicial intervention—keeps him from

receiving the remedy he seeks.

¶63.   As Chief Justice Waller correctly notes in his dissent, the entity we all agree violated

Wilson’s due-process rights is not even named as party to this lawsuit. For this reason, the

majority’s heavy reliance on Meeks v. Tallahatchie County, 513 So. 2d 563 (1987), seems

misplaced. In Meeks, unlike here, the would-be candidate sued the Mississippi Democratic

Executive Committee. Id. at 564. So this court’s instructions were directed to the state

executive committees on what they must do to provide potential candidates due process. Id.

at 565. This court ultimately concluded, if there were any procedural irregularities, they were

harmless because the candidate was in fact disqualified. Id. Thus, Meeks did not consider

what would be an appropriate remedy for an otherwise qualified candidate who did not learn

about his disqualification until after the deadline to inform the Secretary of State. And it

certainly did not consider the State’s competing interest in orderly elections as a reason to

deny a candidate’s request to be placed on this ballot.




                                              27
¶64.   Nor do I see how Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799

(1963), a habeas corpus case involving a criminal defendant’s right to counsel, is relevant.

To suggest that the Secretary of State’s enforcement of a known and necessary ballot

deadline is akin to the atrocity of wrongful incarceration is, to put it mildly, quite a stretch.

This is not to downplay Dr. Wilson’s due-process rights. But as the Chief Justice pointed out

in his dissent, Dr. Wilson had been in a position to protect his rights prior to January 23 but

chose not to do so.

¶65.   I further disagree with the majority’s ordering “any voting precincts using paper

ballots for the March 8 election prepare ballots that include Dr. Wilson as a candidate.” I

point out that Dr. Wilson did not ask for this remedy. Instead, his only request was that the

Secretary of State be ordered to add his name to the electronic ballot. And even the majority

acknowledges Dr. Wilson “has waived any right to challenge any ballot already printed or

issued.” So I do not see how this part of the order squares with Dr. Wilson’s clear waiver.

Instead, it only seems to create potential confusion for the county Democratic executive

committees and the reported seventy-eight of eighty-two local election precincts that already

have started printing ballots to be used on March 8.

¶66.   For these reasons, I dissent.

       WALLER, C.J., JOINS THIS OPINION.




                                               28
