Thursday, April 11, 2024, 4:23 pm News Flash Archive

Moments ago, the Mississippi Supreme Court, acting with extraordinary speed, overturned the Leflore County Circuit Court decision cancelling the special election for Chancery Clerk that was scheduled to take place next Tuesday.

Because the high court vacated the lower court's order, the special election of next Tuesday, April 16, 2024 will now take place.

The Supreme Court's Order vacating the lower court's order of last Monday may be seen here: MS Supreme Court Order Reinstating Special Election

The court's order is one page long, and provides no information about why the court made its decision. It reads:

IT IS THEREFORE ORDERED that the motion [by the Governor] is granted. The Circuit Court of Leflore County's April 8, 2024 order in Gary v. Reeves is vacated.

The order is signed by Justice David Ishee. Seven justices agreed with the order, with Justices Kitchens and King opposing it.

All this was precipitated by the decision in late February, 2024 by Special Judge Jess Dickinson, who overturned the August 2023 Democratic Primaries for Chancery Clerk and District 4 Supervisor, based upon findings of absentee ballot fraud, and numerous violations of the election code in the conduct of the primary.

The incumbent Chancery Clerk Johnny Gary was being challenged by Debra Hibbler. When Gary was declared the primary winner by 15 votes, Hibbler filed her election contest, which was ultimately successful.

To read our reporting on the election contest, view here: Judge overturns Leflore County Chancery Clerk and Supervisor primaries, new elections ordered between Hibbler and Gary, Self and Mitchell

Under the election contest law, Judge Dickinson was required to order the Governor to call a special election, and Governor Reeves issued his Election Writ setting the election for next Tuesday.

But Mr. Johnny Gary filed a petition with the Leflore County Circuit Court against the Governor and the Leflore County Election Commission, asking that the Governor's Election Writ be thrown out. Gary claimed that the Governor didn't have the power to order the special election before November 2024, and didn't allow sufficient time for public notices to be posted.

We reported on Mr. Gary's lawsuit here: Chancery Clerk Johnny Gary sues Governor Reeves and the Election Commission to halt special election

And last Monday, April 8, the circuit court agreed with Mr. Gary. While it ruled that the Governor could call the special election before November, it also found that the Governor called the election too quickly for the Election Commission to comply with the 90-day notice provisions that one special election statute requires. Governor Reeves had allowed only 41 days from the issuance of his Writ to the date of the special election.

To read the court's decision against the Governor and Election Commission, see here: Court Order Overturning Governor's Writ of Election, Enjoining Special Election

The very next day, Tuesday April 9, Governor Reeves filed an emergency appeal before the Mississippi Supreme Court, asking the high court to overturn the lower court and reinstate the special election for next Tuesday.

The Governor's basic argument is that the statute for special elections relied upon by Gary and the lower court, including the 90-day requirement for public notice, doesn't apply in this case, because it is to be used only in the case of vacancies in elected offices.

To read the Governor's emergency appeal, see here: Governor Reeves Emergency Appeal

The Supreme Court immediately ordered Mr. Gary to file his reply by 5 pm Wednesday afternoon. Gary's attorney, Willie Griffin of Greenville, did so shortly after lunch that day.

Gary reiterated his view that the 90-day notice requirement does indeed apply to court-ordered special elections called by the Governor. Gary's reply may be seen here: Gary Reply to Reeves Appeal

Late Wednesday afternoon, the Leflore County Election Commission, represented by Greenwood attorney Fredrick B. Clark, filed its reply. It made basically the same arguments as did Gary's reply.

The Election Commission asked that the high court uphold the lower court's cancellation of the special election set for next Tuesday. In its reply, it claimed:

If the Commission holds the election on April 16, 2024, as ordered by the Governor, without the 90 day notice to the public, it will undoubtedly result in the results of the special election being contested again by the losing candidate or members of the public who were not aware of the special election date and did not get to vote for the candidate of their chose [sic]. Such a senario [sic] could result in an endless cycle of litigation, with each special election costing the county between $35,000.00 to $40,000.00.

The Election Commission also claims that the public is "confused" about when the election will take place:

Today is April 10, 2024, six days before the mandated date for the special' election and the public still does not know when the election will be held. Because the Writ created such confusion for the Commission, notices to the public have not been posted for 90 days announcing April 16, 2024 as the date of the special election. Additionally, qualified voters, including disabled or elderly voters, have been confused about whether to request absentee ballots.

The Election Commission also claims that absentee balloting so far is way down from what it was in the August 2023 primary:

As a point of comparison, in the primary election in August, 2023, the Clerk's office advises that 928 absentee ballots were requested and 840 were returned. As of today, the Clerk's office advises that 96 absentee ballots have been requested, 85 have been sent out and 18 have been returned.

The Election Commission asks the high court to order the Governor to issue another Election Writ which sets the date at least 90 days from that time.

The Election Commission's full reply may be seen here: Election Commission Reply

In all this, there has been a great deal of confusion about the difference between a court-ordered special election, versus a special election called due to a vacancy in the elected office.

Under Mississippi law, when a primary election is contested and overturned after the contestee has already entered into the new term (as happened in this case, since the new term of office began January 1, 2024, but the court's final decision voiding the election was issued in late February 2024), the Court is required to order the Governor to call a special election. The contestee, in this case Mr. Gary, is the candidate whose election was overturned by the court during the election contest.

According to the statute (MS Code Section 23-15-937):

. . . if the contestee [in this case, Mr. Gary] has already entered upon the term [of office] he shall vacate the office upon the qualification of the person elected at said special election, and may be removed by quo warranto if he fail so to do.

A special election ordered by the court and called by the Governor under the election contest statute, is different from a regular special election.

For example, the Governor can specify which candidates will be on the ballot in a court-ordered special election, while the ballot is open to all candidates in a regular special election.

Additionally, the Governor can set the date of the court-ordered special election, while regular special elections must be held in early November, the same day as the general election.

Finally, regular special elections may only be held when there is a vacancy in the office, while court-ordered special elections are held when there is not a vacancy in the office. Mr. Gary is now serving his new term as Chancery Clerk, and there is no vacancy in that office at present.

It appears that Governor Reeves' Writ of Election in these court ordered cases follows the standard, accepted form and procedure, which hasn't been a matter of controversy or confusion up to this point.

Rather, the confusion entered when Johnny Gary sued to stop the special election from taking place.

John Pittman Hey
The Taxpayers Channel

News Flash Archive