IN THE CIRCUIT COURT OF JONES COUNTY, MISSISSIPPI

SECOND JUDICIAL DISTRICT

CHRIS MCDANIEL PETITIONER
VS.
CAUSE NO. 2014-76-CV08
THAD COCHRAN RESPONDENT
RESPONDENT'S MEMORANDUM IN SUPPORT OF MOTION TO DISMISS
COMES NOW Respondent Thad Cochran, by and through undersigned counsel, and
submits his memorandum in support of his motion to dismiss Petitioner Chris McDaniel's
"Petition for Emergency Hearing Injunctive Relief and Judicial Review" ("the Petition") as
follows:
On August 4, 2014, Petitioner Chris McDaniel, the losing candidate in Mississippi's
June 24, 2014 Republican primary runoff election for the office of United States Senate, initiated
a "Complaint of Election Contest" before the Republican Party State Executive Committee. See
Pet. at |3. On August 6, 2014, Petitioner was informed that the Republican State Executive
Committee would not entertain the Complaint of Election Contest. Id. at 5; see also August 6,
2014 correspondence from Executive Committee Chairman to McDaniel's counsel, attached as
Ex. "B " to Pet. On August 14, 2014, Petitioner filed the present Petition in this Court seeking to
challenge the results of the runoff pursuant to Mississippi Code 23-15-923.
Petitioner's Complaint is untimely and must be dismissed. Challenges to an election for
county-wide office must be initiated within twenty (20) days of the election. Miss. Code Ann.
23-15-921. The Mississippi Supreme Court has clearly stated that a challenge to a district or
INTRODUCTION
state wide election must be initiated within twenty (20) days of the election. See Mississippi
Code 23-15-923; see also generally Kellum v. Johnson, 115 So. 2d 147 (Miss. 1959).
The election results of the June 24, 2014 Republican primary runoff were certified by the
State Executive Committee on July 7, 2014. See certified election results, available at
http://www.sos.ms.gov/elections4.aspx; see also Miss. R. Evid. 201. Thus, the latest arguable
deadline for Petitioner to challenge the results was July 27, 2014. The "Complaint of Election
Contest," dated August 4, 2014, was not filed within the twenty-day time frame. Accordingly,
the present Petition, dated August 14, 2014, must be dismissed as untimely.
LAW AND ANALYSIS
Petitioner relies upon Mississippi Code 23-15-923 for the initiation of his election
contest before the State Republican Party Executive Committee. See Pet. 3. He contends in
the "Complaint of Election Contest" that the statute "authorizes the State Executive Committee,
in cases of primary election for statewide office, to receive and investigate election-contest
complaints and declare its findings thereon." Compl. |5, attached as Ex. "A " to Pet.
Mississippi's Code contains two statutes that speak directly to contesting the results of a
primary election. Section 23-15-921, which applies to elections for county-wide office, provides
a maximum period of twenty (20) days from the date of the election to challenge the election
results:
Except as otherwise provided by Section 23-15-961 [contesting the
qualifications of a candidate], a person desiring to contest the
election of another person returned as the nominee of the party to
any county or county district office, or as the nominee of a
legislative district composed of one (1) county or less, may, within
twenty (20) days after the primary election, file a petition with the
secretary, or any member of the county executive committee in the
county in which the election was held, setting forth the grounds
upon which the primary election is contested ....
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Miss. Code Ann. 23-15-921 (emphasis added) Section 23-15-923 - the analogous statute
Petitioner relies upon - provides the mechanism for contesting "the election of another returned
as the nominee in state, congressional and judicial districts, and in legislative districts composed
of more than one (1) county or parts of more than one (1) county." Miss. Code Ann.
23 15-923.
Section 23-15-921 states that challenges to an election for county office must be initiated
within twenty (20) days of the election. Although not explicitly stated in Section 23-15-923, the
Mississippi Supreme Court in Kellum v. Johnson, 115 So. 2d 147 (Miss. 1959) interpreted this
time frame to apply equally to state-wide election contests of the type contemplated by Section
23-15-923.
In Kellum, the election contest was governed by Section 3144 of the Mississippi Code of
1942 - the predecessor statute to Section 23-15-923 - that applied to primary elections involving
"state, congressional and judicial districts." Kellum, 115 So. 2d at 149. Kellum sought to
contest the nomination of a district attorney, but failed to file his complaint with the State
Democratic Executive Committee until thirty-five (35) days after the primary. Id. at 148. The
Committee took no action on his petition. Id. Kellum then filed his petition in Circuit Court and
respondent moved to dismiss, citing Kellum's failure to contest the election within twenty (20)
days of the primary. Id. Johnson's motion to dismiss was granted, id. at 148, and the
Mississippi Supreme Court affirmed the Circuit Court's decision. Id. at 151.
The Mississippi Supreme Court explained why the time frame in Section 3143 must be
applied to Section 3144 of the Mississippi Code of 1942. The Court first addressed the rules of
statutory construction:
Statutes should, if possible, be given a construction which will
produce reasonable results, and not uncertainty and confusion. . . .
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The two sections here under consideration are parts of the whole. .
. . The different parts of a statute reflect light upon each other, and
statutory provisions are regarded as in pari materia where they are
parts of the same act. Hence, a statute should be construed in its
entirety, and as a whole. The general intention is the key to the
whole act, and the intention of the whole controls the interpretation
of its parts. The fact that a statute is subdivided into sections or
other parts should not obstruct or obscure the interpretation of the
law as a whole. . . .
Kellum, 115 So. 2d at 150 (internal quotation marks and citations omitted); see also Dawson v.
Townsend & Sons, Inc., 735 So. 2d 1131, 1140 (Miss. Ct. App. 1999) and Marlow, L.L.C. v.
BellSouth Telecomms., Inc., 686 F.3d 303, 309 (5th Cir. 2012) (citing Kellum with approval for
its statutory construction analysis). The Court then applied these rules to its interpretation of
Sections 3143 and 3144 of the Mississippi Code of 1942:
Where one faces reality, it is obvious that primary election
contests, if they are to be allowed and the favorable results thereof
come to full fruition, must be conducted speedily. The names of
party nominees, if they are to be of any avail, must go on the ticket
for the general election. ... It is inconceivable that the Legislature
intended to limit the time in which contests could be filed where a
county or beat office was involved, and yet fix no time limit
whatever for that purpose in regard to all other offices. . . . The
two sections are in pari materia, and all contests therefore must
be begun within twenty days after the primary. To hold
otherwise would be senseless.
Id. (emphasis added).
The Mississippi Legislature reenacted the primary election contest statutes in 1972
through its adoption of Sections 23-15-921 and 23-15-923 with substantially the same language.
By taking this action subsequent to the Mississippi Supreme Court's ruling in Kellum, the
Court's conclusion that a contest brought pursuant to Section 3144 must be filed within twenty
(20) days of the election has become part of the current version of the statute, Section 23-15-923.
See Miller v. Yazoo & M. V.R. Co., 132 So. 597, 608 (Miss. 1931) ("When a statute is re-enacted
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or the subject has come up for legislative consideration after the statute has received an
administrative or judicial construction it is presumed that such construction was embraced in the
law and approved by the legislature."). Accord Barr v. Delta & Pine Land Co., 199 So. 2d 269,
271-72 (Miss. 1967) ("The re-enactment of a statute after it has been construed by the agency
charged with its enforcements, without materially altering the part construed, or without change
indicative of a disapproval of a prior established construction, impliedly adopts the construction,
especially where there are repeated re-enactments, . . where the administrative construction has
also had judicial approval....").
Following the holding in Kellum, then, any contest of the June 24, 2014 Republican
primary election for United States Senate, since it was not filed within twenty (20) days, must be
barred as untimely.
The Supreme Court's decision in Kellum v. Johnson, 115 So. 2d 147 (Miss. 1959) bars
Petitioner's contest of the Republican primary election for United States Senate. Accordingly,
Respondent Thad Cochran respectfully requests that this Court dismiss the Petition as untimely.
Respectfully submitted, this the 21st day of August, 2014.
CONCLUSION
THAD COCHRAN
Mark W. Garriga, (MB #4762)
HIS ATTORNEYS
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OF COUNSEL:
BUTLER SNOW LLP
1020 Highland Colony Parkway, Suite 1400 (39157)
Post Office Box 6010
Ridgeland, Mississippi 39158-6010
Tel: 601-948-5711
Fax: 601-985-4500
I, Phil B. Abernethy, hereby certify that I have this day served a true and correct copy of
the above and foregoing document upon the following:
Mitchell H. Tyner, Sr.
5750 1-55 North
Jackson, MS 39211
SO CERTIFIED this the 21st day of August, 2014.
Certificate of Service
ButlerSnow 22365778vl
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