Young v. Hosemann

Case: 08-60941 Document: 00511035112 Page: 1 Date Filed: 02/25/2010

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
February 25, 2010

No. 08-60941 Charles R. Fulbruge III
Consol w/ No. 09-60188 Clerk

JERRY YOUNG; CHRISTY COLLEY,

Plaintiffs–Appellants
v.

DELBERT HOSEMANN, in his official capacity as the Secretary of State of
Mississippi; KRISTIN BUSE, in official capacity as Election Commissioner of
Lee County; DEBBY MCCAFFERTY, in official capacity as Election
Commissioner of Lee County; HARRY GRAYSON, JR., in official capacity as
Election Commissioner of Lee County; VIVIAN BURKLEY, in official capacity
as Election Commissioner in Panola County; JULIUS HARRIS, in official
capacity as Election Commissioner in Panola County; JIMMY HERRON, in
official capacity as Election Commissioner in Panola County; BONNIE G. LAND,
in official capacity as Election Commissioner in Panola County; RONALD
MCMINN, in official capacity as Election Commissioner in Panola County;
JOHN H. EDWARDS, in official capacity as Election Commissioner of Lee
County; JOHN M. WAGES, in official capacity as Election Commissioner of Lee
County,

Defendants–Appellees

Appeals from the United States District Court
for the Southern District of Mississippi

Before JONES, Chief Judge, and SMITH and ELROD, Circuit Judges.
EDITH H. JONES, Chief Judge:
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Jerry Young and Christy Colley, both convicted felons, contend that § 241
of the Constitution of the State of Mississippi grants felons the right to vote in
presidential elections. That the state denies them this right, they claim, violates
the Equal Protection Clause of the Fourteenth Amendment to the United States
Constitution and the National Voter Registration Act. The plain text of § 241,
however, belies Young and Colley’s proffered interpretation of the provision. We
therefore affirm the district court’s dismissal of their case.
I. BACKGROUND
Section 241 of the Constitution of the State of Mississippi provides as
follows:
Qualification for Electors. Every inhabitant of this state, except
idiots and insane persons, who is a citizen of the United States of
America, eighteen (18) years old and upward, who has been a
resident of this state for one (1) year, and for one (1) year in the
county in which he offers to vote, and for six (6) months in the
election precinct or in the incorporated city or town in which he
offers to vote, and who is duly registered as provided in this article,
and who has never been convicted of murder, rape, bribery, theft,
arson, obtaining money or goods under false pretense, perjury,
forgery, embezzlement or bigamy, is declared to be a qualified
elector, except that he shall be qualified to vote for President and
Vice President of the United States if he meets the requirements
established by Congress therefor and is otherwise a qualified
elector.

Appellants Jerry Young and Christy Colley are felons. They otherwise
meet Mississippi’s requirements to vote. In 2008, they sought to register to vote
in that year’s presidential election, but were told that, as felons whose voting
rights had not been restored by pardon or legislative enactment, they were
ineligible to do so.
On September 12, 2008, Young and Colley filed this lawsuit against the
Mississippi Secretary of State and the election commissioners of their counties

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(“election officials”), seeking a preliminary injunction to allow them to register
and to vote. The final clause of § 241 (“except that . . . qualified elector”), they
argued, is an exception to the bar on felon voting that precedes it and therefore
guarantees them the right to vote. Under this interpretation, the state’s actions
violated state law, the Equal Protection Clause of the Fourteenth Amendment,
and the National Voter Registration Act.
The district court denied the plaintiffs’ request for a preliminary
injunction from the bench, stating that their interpretation of § 241 was not “fair
or reasonable.” This court subsequently denied the plaintiffs’ motion for
emergency injunctive relief pending appeal.
In October, the election officials filed a motion to dismiss the complaint for
lack of federal jurisdiction and failure to state a claim. F ED. R. C IV. P. 12(b)(1),
(6). On March 9, 2009, the district court granted that motion as to 12(b)(6),
concluding that, as a matter of law, the plaintiffs’ complaint was “without merit
and should be dismissed with prejudice” because their interpretation of § 241
was “legally incorrect.” The court also concluded that “defendants have correctly
construed this provision.”
The plaintiffs timely appealed.
II. STANDARD OF REVIEW
Whether a district court possesses subject matter jurisdiction is, as
question of law, reviewed de novo on appeal. Sandoz v. Cingular Wireless LLC,
553 F.3d 913, 915 (5th Cir. 2008). A district court’s grant of a motion to dismiss
for failure to state a claim under Rule 12(b)(6) is also subject to de novo review.
In re Katrina Canal Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007). The
facts pled by the appellants before the district court are uncontested and so not
subject to review.

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III. DISCUSSION
The appellants raise three issues on appeal. First, they argue that the
district court’s order dismissing their complaint failed to set forth a basis for the
decision sufficient for review by this court. Second, they challenge the state’s
interpretation of § 241. And third, they propose that, if this court rejects their
proffered interpretation of § 241, it abstain under the doctrine of Railroad
Commission v. Pullman Co., 312 U.S. 496 (1941), and leave the question of § 241
to Mississippi courts.
A. Jurisdiction
First, however, we address the matter of jurisdiction. The election officials
contend that Young’s and Colley’s federal claims do not establish federal
question jurisdiction, 28 U.S.C. § 1331, because they are clearly “immaterial and
made solely for the purpose of obtaining jurisdiction or . . . wholly insubstantial
and frivolous.” Bell v. Hood, 327 U.S. 678, 681 (1946).
When a federal claim appears on the face of the complaint, “[d]ismissal for
lack of subject matter jurisdiction is only proper in the case of a frivolous or
insubstantial claim, i.e., a claim which has no plausible foundation or which is
clearly foreclosed by a prior Supreme Court decision.” Bell v. Health-More,
549 F.2d 342, 344 (5th Cir. 1977). Further, when a complaint asserts a
cognizable federal claim, dismissal for want of jurisdiction is disfavored as a
matter of policy:
Judicial economy is best promoted when the existence of a federal
right is directly reached and, where no claim is found to exist, the
case is dismissed on the merits. This refusal to treat indirect
attacks on the merits as Rule 12(b)(1) motions provides, moreover,
a greater level of protection to the plaintiff who in truth is facing a
challenge to the validity of his claim: the defendant is forced to
proceed under Rule 12(b)(6) (for failure to state a claim upon which
relief can be granted) or Rule 56 (summary judgment)—both of
which place greater restrictions on the district court’s discretion.

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Williamson v. Tucker, 645 F.2d 404, 415–16 (5th Cir. 1981) (en banc). Therefore,
the pleading burden to establish federal question jurisdiction is low: only claims
“patently without merit . . . justify the district court’s dismissal for want of
jurisdiction.” Suthoff v. Yazoo County Indus. Dev. Corp., 637 F.2d 337, 340 (5th
Cir. 1981).
In their complaint, the appellants alleged that, because § 241 gives felons
the right to vote, the election officials’ “action of failing and/or refusing to allow
Plaintiffs to register and vote for President and Vice President treats them
differently from other qualified voters and violates the Equal Protection Clause.”
Similarly, they alleged that Mississippi’s failure to provide a registration form
for federal elections is, if state law permits them to vote in such elections, a
violation of the National Voter Registration Act’s requirement that each state
“shall include a voter registration application form for elections for Federal office
as part of an application for a State motor vehicle driver’s license.”
42 U.S.C. § 1973gg-3.
The election officials challenge federal question jurisdiction on three
grounds. First, they argue that the appellants’ federal claims merely restate
their state claim. A disputed application of state law, however, can be the basis
for a § 1983 claim and thereby support federal question jurisdiction. Daigle v.
Opelousas Health Care, Inc., 774 F.2d 1344, 1347–348 (5th Cir. 1985). State law
is challenged here, but an Equal Protection challenge to state practices that deny
a class of voters the right to participate on an equal basis with other qualified
voters is a federal claim, as is a challenge to such a practice under the NVRA.
That these claims alleging violations of rights conferred by federal law are
predicated on an alleged violation of state law is of no moment.
Second, the election officials argue that the substance of the appellants’
federal claims is clearly foreclosed by law and therefore frivolous. As to the

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Equal Protection claim, the Supreme Court has stated that “the Equal
Protection Clause confers the substantive right to participate on an equal basis
with other qualified voters whenever the State has adopted an electoral process
for determining who will represent any segment of the State’s population.” Lubin
v. Panish, 415 U.S. 709, 713, 94 S. Ct. 1315, 1318 (1974); Bush v. Gore, 531 U.S.
98, 104–105, 121 S. Ct. 525, 530 (2000) (“Having once granted the right to vote
on equal terms, the State may not, by later arbitrary and disparate treatment,
value one person’s vote over that of another.”). Whatever its merit, the
appellants’ Equal Protection claim, made through § 1983, is not “clearly
foreclosed” by law and so is neither insubstantial nor frivolous. For that reason,
it is sufficient to support federal question jurisdiction.
The NVRA claim is likewise not clearly foreclosed. A state is not required
to register convicted criminals to vote in an election when those criminals are
ineligible to vote “as provided by State law.” 42 U.S.C. § 1973gg-6(a)(3)(b). If
Mississippi’s law does not disenfranchise felons, the state may have violated the
terms of the NVRA. That this claim is predicated on a dispute of state law does
not undermine federal question jurisdiction.
Finally, the election officials argue that, even if the appellants’ federal
claims are sufficiently cognizable to support federal question jurisdiction, the
Eleventh Amendment nonetheless bars them. This argument is premised on
Pennhurst, in which the Supreme Court explained, “A federal court’s grant of
relief against state officials on the basis of state law, whether prospective or
retroactive, does not vindicate the supreme authority of federal law.” Pennhurst
State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106, 104 S. Ct. 900, 911 (1984).
Pennhurst, which rejected an injunction entered by a district court that required
state officials to conform their conduct to state law, is inapplicable here. The
Eleventh Amendment may be relevant to the appellants’ state law claim, but it

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has no relevance to their claims seeking to vindicate federal rights and thereby
the supremacy of federal law.
Because the appellants’ federal claims are neither frivolous nor clearly
foreclosed by law, they support subject matter jurisdiction.
B. Sufficiency of the District Court’s Decision
The appellants assert that the district court’s order granting the election
officials’ motion to dismiss under Rule 12(b)(6) failed to set forth a sufficient
basis for the decision, preventing this court from reviewing the judgment.
In Sprint/United Mgmt. Co. v. Mendelsohn, ___ U.S. ___, 128 S. Ct. 1140,
1145 (2008), the Supreme Court vacated a judgment that relied on a district
court order that excluded evidence without stating the basis for doing so. The
Tenth Circuit had offered a post hoc rationalization for the district court’s
ruling. Id. The Supreme Court, however, found no indication supporting either
the rationalization or that the district court had evaluated the excluded evidence
under F ED. R. E VID. 403. Id. at 1146. Accordingly, the Court directed the
district court to clarify its evidentiary ruling. Similarly, in Castillo v. City of
Weslaco, this court declined to reach the merits of an appeal of a district court’s
order denying summary judgment because the order “failed to outline the
relevant factual scenario and the evidence in the record establishing the relevant
conduct.” 369 F.3d 504, 507 (5th Cir. 2004). “[R]ather than combing through the
record ourselves and concluding what factual scenario the district court likely
assumed,” the court remanded for clarification, while acknowledging that it was
“not required to make such a remand.” Id.
These cases are inapposite for two reasons. First, an appellate court is not
compelled to remand when the basis for a district court’s decision is readily
inferable, even if tersely stated. Second, these particular cases turned on the
district court’s unique competence and duty to make determinations concerning

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the relevance, prejudice, and existence of evidence (e.g., at summary judgment),
rather than the application of law. Unlike in Mendelsohn and Castillo, no
material facts are at issue in the present case.
The district court’s statement of the legal basis for its decision was
sufficient. The plaintiffs’ interpretation of § 241, it stated, was not “a fair or
reasonable construction.” It concluded instead “that defendants have correctly
construed this conclusion.” Accordingly, it dismissed the plaintiffs’ claims on that
textual ground. The brevity of the district court’s order does not impede this
court’s ability to conduct de novo review.
C. Section 241 of the Mississippi Constitution
Turning to the merits, appellants contend that Section 241, which sets out
voter qualifications, contains an explicit exception that allows felons to vote in
presidential elections. The state’s longstanding interpretation to the contrary
is that the bar on felon voting applies equally in all elections.
The parties dispute the meaning of the provision’s “presidential election
clause”:
. . . except that he shall be qualified to vote for President and Vice
President of the United States if he meets the requirements
established by Congress therefor and is otherwise a qualified
elector.
Appellants—represented by the ACLU—concede that Mississippi could
constitutionally, and consistently with the federal Voting Rights Act,
disenfranchise felons from voting.1 The question is whether the “except” clause
did so.

1
Indeed, the appellants have repeatedly stated that they seek to vindicate only their
“right to vote in certain federal elections absent a clear and valid abridgement of that right by
the State.” Appellants’ Reply Brief at 15. They explicitly acknowledge that a clearly stated
bar on felon voting would vindicate this right, id. at 15–17, and that a state has the
“authority” under the U.S. Constitution to disenfranchise felons. Oral Argument at 7:30–8:05
(January 6, 2010).

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The appellants begin by observing that because there is little legislative
history regarding § 241, and because it is unambiguous, its plain text is the only
appropriate evidence of its meaning. Notwithstanding this point, they cite
legislative history explaining that the 1972 amendment that added the clause
was distinct from that amendment’s other provision, which lowered the voting
age to eighteen following ratification of the Twenty-Sixth Amendment.
Therefore, the addition of the clause was not meant merely to keep the state in
compliance with changes to the federal law governing voter qualifications.
Moreover, the use of the word “except” in the presidential election clause creates
an exception to the qualifications that precede it, including the bar on felon
voting.
Appellants next assert that the limitation “otherwise a qualified elector”
cannot refer back to the definition of “qualified elector” that precedes the
presidential election clause, because doing so would render the limitation
superfluous, contrary to our duty to “give effect, if possible, to every clause and
word of a statute.” Inhabitants of Montclair Tp. v. Ramsdell, 107 U.S. 147,
2 S. Ct. 391 (1883). Rather, the fact that “qualified elector” is used twice in § 241
indicates that there are two classes of qualified electors: one for state elections
and one for presidential elections.
Finally, properly construing those two terms—“except” and “qualified
elector”—reveals the plain meaning of the presidential election clause: that the
bar on felon voting does not apply to presidential elections. Consequently,
individuals who meet the qualifications of § 241 but for the bar on felon voting
(i.e., sanity, age, citizenship, residency, and registration) are qualified to vote in
presidential elections if they also satisfy any requirements established by
Congress.

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The appellants offer two more general arguments in support of their
interpretation of § 241. The first is that the Mississippi Supreme Court has
interpreted the felon bar narrowly, particularly when it has held that the bar
does not apply to federal or out-of-state convictions.2 The second is that the
Supreme Court has repeatedly espoused the importance and fundamental
nature of the right to vote. See, e.g., Wesberry v. Sanders, 376 U.S. 1, 17,
84 S. Ct. 526, 535 (1964) (“No right is more precious in a free country than that
of having a voice in the election of those who make the laws under which, as
good citizens, we must live.”); but see Richardson v. Ramirez, 418 U.S. 24, 55,
94 S. Ct. 2655, 2671 (1974) (holding that the Constitution affirmatively sanctions
the disenfranchisement of felons).
We need not consider these supporting arguments, however, because the
text of § 241 is perfectly clear and perfectly contrary to the construction urged
by the appellants. The word “except,” as used in the presidential election clause
does indeed create an exception. The general rule is that any individual who
satisfies the qualifications listed in § 241, and only those qualifications, is a
“qualified elector.” For presidential elections, however, a voter must “meet[] the
requirements established by Congress” and be “otherwise a qualified elector.”
The term “qualified elector,” as used at this point, must bear the same definition
that it is given in the text that immediately precedes the presidential election
clause. If it referred only to requirements established by Congress, rather than
those in state law, it would be superfluous. The term is simply not susceptible
to the appellants’ theory that it somehow incorporates all of the qualifications
of state law but for the bar on felon voting.

2
Specifically, the Mississippi Supreme Court has ruled that § 241 and the statutes that
implement it do not disenfranchise those convicted of felonies under the laws of other states
or under federal law. Mississippi v. McDonald, 145 So. 508, 511 (Miss. 1933);Middleton v.
Evers, 515 So. 2d 940 (Miss. 1987).

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Further, the appellants’ assertion that consistently defining “qualified
elector” renders superfluous the final element of the presidential election clause
(“. . . and is otherwise a qualified elector”) defies logic. Were this text omitted,
only “requirements established by Congress” would limit the franchise, and
nothing in federal law prevents non-residents, infants, the insane, and indeed
felons from voting in presidential elections, except as pursuant to state or local
voting requirements. See 3 U.S.C. §§ 1–21 (presidential elections and vacancies);
42 U.S.C. § 1971(a) (stating that voting rights are defined by state and local
law). The term “qualified elector,” as previously defined, serves the plain and
vital purpose of setting the breadth of the franchise in presidential elections.
Far from being superfluous, the absence of this term would radically alter the
effect of the presidential election clause.
Despite the appellants’ protestations, there is no principled reason that the
presidential election clause would grant only felons the right to vote in
presidential elections while leaving the other qualifications of § 241 intact. In
fact, for what conceivable reason would the State of Mississippi grant any group
that it has forbidden from voting in state elections the explicit license to vote in
presidential elections? And if, as the appellants’ argument logically demands,
the presidential election clause imports none of the qualifications that precede
it, then the term “qualified elector” becomes a nullity. Appellants’ parsing of
Section 241 cannot stand against commonsense plain meaning.
D. Abstention and Certification
As a fallback, the appellants suggest that Pullman abstention may be
appropriate to resolve uncertainty regarding the meaning of § 241 and to give
state courts an opportunity to interpret state law. In turn, the election officials,
who argued below in favor of abstention, now propose, as an alternative to

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abstention, certifying the question of the meaning of § 241 to the Mississippi
Supreme Court.
Pullman abstention is justified “‘when difficult and unsettled questions of
state law must be resolved before a substantial federal constitutional question
can be decided.’” Nationwide Mut. Ins. Co. v. Unauthorized Practice of Law
Comm., of State Bar of Tex., 283 F.3d 650, 652 (5th Cir. 2002) (quoting Hawaii
Housing Authority v. Midkiff, 467 U.S. 229, 236, 104 S. Ct 2321 (1984)).
Regarding certification, this court has recognized that it is preferable to “the
more cumbersome and . . . problematic abstention doctrine.” Ctr. for Individual
Freedom v. Carmouche, 449 F.3d 655, 668 (5th Cir. 2006) (quoting Virginia v.
American Booksellers Ass’n, 484 U.S. 383, 397, 108 S. Ct. 636, 644 (1988)).
Neither approach can be justified here, because the text of § 241 is clear and the
appellants’ proffered interpretation of § 241 does not comport with its text.
Accepting the state’s longstanding, commonsense interpretation of the provision
both avoids the constitutional issue and demonstrates respect for the state’s
interpretation of its own laws. Further, our decision does not preclude a state
court from reaching a contrary holding in some future case. Today’s result
obviates any need to abstain or certify a question to the Mississippi Supreme
Court.
IV. CONCLUSION
For the reasons discussed above, the district court’s dismissal of the
appellants’ claims is AFFIRMED.

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