Judge Green denied the governor’s motion to dismiss based on jurisdiction, and took the request for a preliminary injunction under advisement. She’s going to write on this. In response to the argument that the court had no jurisdiction, Judge Green said “Counsel, if you’re arguing that the courts cannot issue a mandamus order against the governor, who can?” After some jumping around, the lawyer for the governor admitted his argument was that no one could mandamus the governor for violating the law. When she asked who could mandamus the governor, she mentioned a case called Green v. Fordice.
By the way, since when is this action for a preliminary injunction a “mandamus” action?
Judge Green was aware of an issue raised on this blog: That the position that special elections were at the bottom of the ballot in the past was specious because there have been no national special elections under this statute.
Mike Wallace, a lawyer with extensive history of representing the Republicans on voting rights issues (and former Bush administration Fifth Circuit court nominee), was at the hearing and at counsel table with the governor. He did not formally appear.
NMC, would you please give our non-law-trained readers a nice user-friendly definition of “to mandamus”?
I guess I’m just missing the big picture on this issue.
I’m now pleasantly confused.
The Governor cannot be enjoined: “Within the limits of the power conferred upon him by the Constitution and the laws, the Governor is not subject to control by the courts, nor, as already mentioned, can any mandamus, prohibition, or injunction direct or restrain him in the exercise of his power.” State v. McPhail, 180 So. 387, 392 (Miss. 1938). This line of cases needs to be overruled. This is absurd. But a state court can issue a declaratory judgment against the Governor. See Fordice v. Thomas, 649 So. 2d 835, 840 (Miss. 1995) (“In the instant case, the plaintiffs below did not seek a writ of mandamus or injunctive relief against the governor. The governor was not compelled to do anything and he was not enjoined from doing anything, the trial court merely issued a declaratory judgment. . . . We hold that the trial court had the power to declare whether the plaintiffs below had a right under this state’s APL to offer comments before the adoption of a CAP.”)
Does the case really go as far as that language– reading it, it is immediately qualified by that statement that any citizen showing a claim or right being injured can have a remedy in court. It seems a limited holding– that the governor could not be enjoined or subject to mandamus in the abstract (independent of a showing of harm to a specific citizen).
Of course, this may suggest a problem with a claim by a circuit clerk. Who has an injury here? Musgrove (who has a right to have his race up the ballot)?
I’ve no time to think more about that line of cases.
Your last observation makes me think that a circuit clerk arguing “I have a right to do this ballot consistent with the statute and ignore the governor” would have a good claim for dec. relief under Fordice.