E-Filed Document Sep 8 2020 17:02:32 2020-CA-00983-SCT Pages: 47

__________________________________________________________________
IN THE SUPREME COURT OF MISSISSIPPI
No. 2020-CA-00983-SCT

MICHAEL D. WATSON, JR., in his official capacity as

the Mississippi Secretary of State, ET AL.

Appellants/Cross-Appellees
v.
HARRIETT OPPENHEIM, ET AL.
Appellees/Cross-Appellants

On Appeal from the Chancery Court

of Hinds County, Mississippi

BRIEF OF APPELLANT/CROSS-APPELLEE
SECRETARY OF STATE MICHAEL WATSON

LYNN FITCH Kristi H. Johnson (Bar No. 102891)

Attorney General of Mississippi
MISSISSIPPI ATTORNEY GENERAL’S OFFICE
P.O. Box 220
Jackson, Mississippi 39205-0220
Telephone: (601) 359-3680
Email: kristi.johnson@ago.ms.gov
krissy.nobile@ago.ms.gov
justin.matheny@ago.ms.gov
doug.miracle@ago.ms.gov
Solicitor General
Krissy C. Nobile (Bar No. 103577)
Deputy Solicitor General
Justin L. Matheny (Bar No. 100754)
Assistant Solicitor General
Douglas T. Miracle (Bar No. 9648)
Assistant Attorney General

Counsel for Appellant/Cross-Appellee Secretary of State Michael Watson

______________________________________________________________________________
IN THE SUPREME COURT OF MISSISSIPPI
No. 2020-CA-00983-SCT

MICHAEL D. WATSON, JR., in his official capacity as

the Mississippi Secretary of State, ET AL.

Appellants/Cross-Appellees,
v.
HARRIETT OPPENHEIM, ET AL.
Appellees/Cross-Appellants.

On Appeal from the Chancery Court

of Hinds County, Mississippi

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons

have an interest in the outcome of this case. These representations are made so that

the justices of the Mississippi Supreme Court may evaluate possible disqualification

or recusal:

1. Secretary of State Michael Watson, Appellant/Cross-Appellee;

2. Kristi H. Johnson, Krissy C. Nobile, Justin L. Matheny, and Douglas T.

Miracle, Mississippi Attorney General’s Office, Counsel for Appellant/Cross-
Appellee Secretary of State Watson;

3. Harriett Oppenheim, Dave Miller, Joy Parikh, Martin Clapton, Mary

Harwell, and Michelle Colon, Appellees/Cross-Appellants;

4. Robert B. McDuff and Reilly Morse, Mississippi Center for Justice, Counsel
for Appellees/Cross-Appellants;

ii
5. Joshua Tom, Landon Thames, Jonathan Topaz, Theresa Lee, and Dale Ho,
ACLU of Mississippi, Counsel for Appellees/Cross-Appellants;

6. Rankin County Circuit Clerk Becky Boyd, Appellant/Cross-Appellee;

7. William Trey Jones, III and Jacob A. Bradley, Brunini, Grantham, Grower &
Hewes, PLLC, Counsel for Appellant/Cross-Appellee Boyd;

8. Hinds County Circuit Clerk Zack Wallace, Defendant-below;

9. Tony R. Gaylor and Rayford G. Chambers, Chambers & Gaylor, PLLC,

Counsel for Defendant-below Wallace; and

10. Hon. Denise S. Owens, Hinds County Chancery Court Judge.

LYNN FITCH
Attorney General of Mississippi

/s/ Justin L. Matheny

Justin L. Matheny

Counsel for Appellant/Cross-Appellee

Secretary of State Michael Watson

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 TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS........................................................................ ii

TABLE OF CONTENTS.......................................................................................................... iv
TABLE OF AUTHORITIES ......................................................................................................v
STATEMENT OF THE ISSUES .............................................................................................. 1
STATEMENT OF ASSIGNMENT ........................................................................................... 2
STATEMENT OF THE CASE.................................................................................................. 2
SUMMARY OF THE ARGUMENT ........................................................................................15
ARGUMENT............................................................................................................................18
I. Section 23-15-713(d) Does Not Permit “Any Voter” to Vote Absentee Merely Based on
a Pre-existing Health Condition, Which is Not a Physical Disability, and Concerns About
Contracting COVID-19 at a Polling Place. ..........................................................................18
A. Section 23-15-713(d)’s absentee excuse requires voters to have an actual “physical
disability” and meet a causation requirement. ...................................................................19
B. Plaintiffs’ interpretative theory, which the Chancery Court apparently endorsed,
undermines Section 23-15-713(d)’s “physical disability” requirement............................21
II. The Legislature’s Recent Addition to Section 23-15-713(d) Only Permits Voters
Compelled to Quarantine by an Authorized Physician to Vote Absentee. .........................24
A. The plain meaning of “under a physician-imposed quarantine” requires a mandate
issued by a duly-authorized physician that compels a voter to quarantine, not mere
“guidance” or a “recommendation.” ..................................................................................24
B. Statutory construction principles also thwart an expansive interpretation of “under
a physician-imposed quarantine.” ....................................................................................29
1. HB 1521’s legislative history proves its phrase “under a physician-imposed
quarantine” must be read and applied narrowly. ........................................................30
2. Narrowly construing “under a physician-imposed quarantine” comports with the
Election Code’s policy preference for in-person voting.................................................34
3. A broad reading of “under a physician-imposed quarantine” is inconsistent with
the Code’s mail-in absentee voting excuses..................................................................35
III. The Chancery Court Mistakenly Implied That Section 23-15-713(d) Turns Solely
on a Voters’ “Good Faith” Belief That They Are Temporarily Physically Disabled And
May Vote Absentee. .............................................................................................................37
CONCLUSION ........................................................................................................................39
CERTIFICATE OF SERVICE .................................................................................................39

iv
 TABLE OF AUTHORITIES

Federal Cases

N.L.R.B. v. SW General, Inc.,

137 S.Ct. 929 (2017) .............................................................................................................32

State Cases

Ashcraft v. Bd. of Sup’rs of Hinds County,

36 So. 2d 820 (Miss. 1948) ...................................................................................................33

Buffington v. Mississippi State Tax Comm’n

43 So. 3d 450 (¶16) (Miss. 2010) ....................................................................................20, 24

City of Tchula v. Mississippi Public Serv. Comm’n,

187 So. 3d 597 (¶11) (Miss. 2016) ........................................................................................24

Dawson v Townsend & Sons, Inc.

735 So. 2d 1131, 1138-39 (¶31) (Miss. Ct. App. 1999) .....................................................29, 31

Gregory v. Central Life Ins. Co.

953 So. 2d 233 (¶30) (Miss. 2007) ........................................................................................19

Henderson v. Blair
59 So. 856 (Miss. 1912) ........................................................................................................33

Mississippi Ethics Comm’n v. Grisham

957 So. 2d 997 (¶12) (Miss. 2007) ..................................................................................19, 29

Mississippi Gaming Comm’n v. Imperial Palace of Mississippi, Inc.

751 So. 2d 1025 (¶14) (Miss. 1999) ................................................................................32, 33

Newsome v. Peoples Bancshares

269 So. 3d 19 (¶15) (Miss. 2018) ..........................................................................................19

Owens Corning v. Mississippi Ins. Guar. Ass’n

947 So. 2d 944 (¶7) (Miss. 2007) ..........................................................................................34

Rex Distributing Co. v. Anheuser-Busch,

271 So. 3d 445 (¶13) (Miss. 2019) ........................................................................................18

Rogers v. Holder
636 So. 2d 645 (Miss. 1994) .................................................................................................. 5

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Federal Statutes

42 U.S.C. § 12102 ....................................................................................................................20

52 U.S.C. § 20301 ..................................................................................................................... 6

State Statutes

Miss. Code Ann. § 23-15-1 ........................................................................................................ 5

Miss. Code Ann. § 23-15-331 .................................................................................................... 5

Miss. Code Ann. § 23-15-713 ...............................................................................................6, 37

Miss. Code Ann. § 23-15-671 .................................................................................................... 6

Miss. Code Ann. § 23-15-621 .................................................................................................... 7

Miss. Code Ann. § 23-15-625 .................................................................................................... 7

Miss. Code Ann. § 23-15-715 .................................................................................................... 7

Miss. Code Ann. § 23-15-627 ...................................................................................................37

Miss. Code Ann. § 23-15-717 ...................................................................................................37

Miss. Code Ann. § 23-15-753 ...................................................................................................37

Miss. Code Ann. § 23-15-715(a) ................................................................................................ 6

Miss. Code Ann. § 23-15-715(b) .......................................................................................6, 8, 20

Miss. Code Ann. § 23-15-713(d) ....................................................................................... passim

Miss. Code Ann. § 23-15-629(1) ................................................................................................ 8

Miss. Code Ann. § 23-15-625(2) ...............................................................................................37

Miss. Code Ann. § 23-15-629(2)-(4) .......................................................................................... 8

Miss. Code Ann § 41-3-59, § 41-23-2 .......................................................................................26

Other Authorities

Disability, BLACK’S LAW DICTIONARY (11 ed. 2019)……………………………………27

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Merriam-Webster, https://www.merriam-webster.com/dictionary (last visited
September 8, 2020)……………………………………………………………………..27

Mississippi HB 1521 ............................................................................................ passim

Leslie H. Southwick, 8 MS Prac. Encyclopedia Section 68:69 (2d ed.)………..passim

vii
 STATEMENT OF THE ISSUES

The Mississippi Election Code requires voters to cast ballots in-person on

election day, except for voters who qualify under a few limited absentee excuses. Code

Section 23-15-713(d)’s “permanent or temporary physical disability” excuse permits

a voter to cast an absentee ballot if he or she has a “physical disability,” and “because

of” that “physical disability,” the voter’s “attendance at the polling place could

reasonably cause danger to himself, herself or others.”

The Legislature recently added a sentence to the statute, for purposes of the

November 2020 general election only, establishing that voters “under a physician-

imposed quarantine due to COVID-19,” and voters “caring for a dependent who is

under a physician-imposed quarantine due to COVID-19,” qualify for Section 23-15-

713(d)’s absentee excuse.

The issues on appeal are pure questions of statutory interpretation:

(1) Does a voter with merely an underlying health condition, which is not a

“physical disability,” and a concern that voting in-person in the November general

election might cause the voter to contract COVID-19, qualify for Section 23-15-

713(d)’s absentee excuse?

(2) Does a physician recommendation to a voter, or his or her dependent, to not

attend public gatherings because of some possibility of contracting COVID-19 put the

voter “under a physician-imposed quarantine” for purposes of Section 23-15-713(d)’s

absentee excuse?

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 (3) Does the Election Code permit voters to unilaterally determine whether

they qualify to cast an absentee ballot in reliance on Section 23-15-713(d)’s absentee

excuse?

STATEMENT OF ASSIGNMENT

The Supreme Court has already retained this appeal and ordered expedited

briefing and consideration.

STATEMENT OF THE CASE

State and Local Officials’ Extensive Preparations

for the November General Election

Throughout the past many months, COVID-19 has caused an unprecedented

public health crisis in Mississippi, and throughout the country. The Secretary of

State’s Office and state and local election officials recognize the stark concern COVID-

19 presents for the upcoming November 3 general election, and the pressing need to

ensure all voters are provided with an opportunity to safely cast their ballots.

[ROA.275]. * Indeed, as the Chancery Court below observed, the Secretary of State

has publicly acknowledged that “he and his office ‘do not believe voters should have

to choose between casting a ballot and risking their own health.’” [ROA.538, RE 2].

To achieve that goal this November, far beyond steps attendant to usual election

preparations, the Secretary of State and the hundreds of election officials across the

* Record citations in this brief refer to pages of the Clerk’s Papers in the format “[ROA. (page
#)],” and citations to the Secretary of State’s Record Excerpts use the format “[R.E. (excerpt #)].”

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state are already making significant plans and taking extraordinary measures to

ensure polling places are safe for everyone. [ROA.275-79].

The Secretary of State’s Office is spearheading plans to implement polling

place safety measures consistent with current Centers for Disease Control (“CDC”)

guidelines, and other public health agency suggestions, specific to polling place

safety. [ROA.275-76, 284-300]. For example, the Legislature recently extended new

rule-making authority to the Secretary of State to promulgate administrative rules

applicable to polling places throughout the State. [ROA.274, 276]. The new rules will

be adapted to current policy guidance for polling places on election day, and will

address numerous safety measures including, as examples: personal protective

equipment (“PPE”) for poll officials; mask recommendations for voters; social

distancing measures; steps to reduce the numbers of voters congregating in indoor

places; additional curb-side voting; signage and instructions for voters; and other

relevant safety measures. [ROA.276].

Local election officials responsible for administering election day activities will

be well-equipped to handle their task of promoting and providing a safe voting

environment at polling places. Enhanced safety precaution training will be provided.

[ROA.277]. The Secretary of State’s Office has worked (and continues to work)

cooperatively with all counties to meet their needs for safety equipment. [ROA.277-

78]. For example, all counties have requested and will be provided items such as face

masks, face shields, hand sanitizer, and disinfecting supplies. [ROA.277]. Every poll

manager who works at the polling places will have sufficient PPE, and masks will be

3
made available to voters to wear while voting will have one made available to him or

her. [ROA.277]. The Secretary of State’s Office has also made available, through a

reimbursement grant to the individual counties, a portion of the federal CARES Act

funding to purchase shield barriers, additional tables, and other supplies. [ROA.278].

Voters will not have to worry over using shared objects at their polling place.

Counties will be provided hundreds of thousands of single-use writing pens and stylus

pens, which will ensure that voters do not have to re-use implements, and gloves will

be used so poll managers and voters can avoid any need to touch surfaces such as

voting machines, poll books, and e-poll books. [ROA.277-78]. Additional cleaning

supplies and equipment will also be available. [ROA.278].

Extra funding has been made available to local election officials, through the

federal CARES Act and supplemental legislative appropriations, to make additional

poll managers and equipment available. [ROA.278]. The Secretary of State’s Office is

implementing plans for state and local election officials to make the necessary

accommodations to ensure voter safety in November, continuing to monitor

developments associated with COVID-19 health risks, and is poised to assist local

officials in taking the necessary polling place precautions and actions as polling place-

specific guidance and recommendations may require. [ROA.275-79]. Make no

mistake, safety is the number one goal for all voters and election officials this

November. [ROA.275-79].

4
 Mississippi Law Requires In-person Voting
with Narrowly-Limited Absentee Exceptions

By our country’s constitutional design, the states are authorized to enact laws

regulating elections. State legislatures each exercise that policy-making authority in

numerous and various permissible ways. Oftentimes, difficult choices must be made

by legislators to fulfill their obligation to afford qualified voters an opportunity to vote

while also satisfying their legislative duty to safeguard the integrity of elections,

which is essential to preserving voter confidence in election outcomes and ultimately

maintaining our system of democratic governance.

The Mississippi Legislature has exercised its elections policy-making authority

by enacting the State’s Election Code. See Miss. Code Ann. § 23-15-1 et seq. The Code

governs all elections in the State, including the mechanics of voting, such as ballot-

building, voting systems, absentee balloting, and the conduct of elections. See Miss.

Code Ann. § 23-15-331 et seq., § 23-15-391 et seq., § 23-15-541 et seq., § 23-15-621 et

seq. When viewed as a whole, the Code sets a process requiring all voters to cast their

ballots in-person on election day, unless a voter meets one of the narrow statutory

excuses for casting an absentee ballot.

Sound policy grounds support the Code’s system of in-person voting with only

few and limited absentee excuses, and even fewer allowances for voting by mail. As

just one example, and as this Court has recognized, the Code’s absentee requirements

“are intended to ensure the integrity of absentee ballots” given that “[a]bsentee paper

ballots, unlike machine votes, are particularly amenable to fraud; the detailed

procedures outlined in the statutes . . . are designed to protect against fraudulent

5
votes and ensure that absentee ballots actually reflect the will of the voters who cast

them.” Rogers v. Holder, 636 So. 2d 645, 649 (Miss. 1994).

Consistent with the Legislature’s policy preference for in-person voting, the

seven excuses that allow a voter to cast an absentee ballot are narrow and objective:

• students, teachers, or their spouses who will be absent from their home
county on election day;

• members of Mississippi’s congressional delegation, their spouses, and

employees;

• anyone who will be away from their home county on election day;

• anyone who must be at work during polling hours on election day;

• anyone age 65 or over;

• anyone who has a qualifying permanent or temporary physical disability;

and/or

• anyone who is a parent, spouse, or dependent of a person with a qualifying

permanent or temporary disability who is hospitalized (within certain
geographical parameters), and will be with that disabled person on election day.

See Miss. Code Ann. § 23-15-713. 1

Several excuses obligate electors to appear in-person to vote absentee. Miss.

Code Ann. § 23-15-715(a). However, the following categories of voters may cast their

absentee ballots in-person or by mail:

• voters temporarily residing outside of their home county;

1 Separate unique state and federal laws govern balloting and procedures for absentee voting
by military and overseas voters. See 52 U.S.C. § 20301 et seq.; Miss. Code Ann. § 23-15-671 et seq.

6
 • voters age 65 or over;

• voters who have a qualifying permanent or temporary physical disability; and

• voters who are parents, spouses, or dependents of persons who are

hospitalized with a qualifying permanent or temporary physical disability,
and will be with the disabled person on election day.

See Miss. Code Ann. § 23-15-715(b).

In addition to absentee excuses, the Election Code also establishes the

processes, time lines, deadlines, and other requirements associated with obtaining,

casting, returning, and counting absentee ballots. See, e.g., Miss. Code Ann. § 23-15-

621 et seq., § 23-15-717, § 23-15-719, § 23-15-721. 2

The Election Code’s “Physical Disability” Excuse and HB 1521

Prior to this July, the Election Code included the following “physical disability”

excuse:

(d) Any person who has a temporary or permanent physical disability

and who, because of such disability, is unable to vote in person without
substantial hardship to himself or others, or whose attendance at the
polling place could reasonably cause danger to himself or others.

Miss. Code Ann. § 23-15-713(d) (Rev. 1993).

2 Two absentee balloting deadlines are particularly relevant here. The window for prospective

absentee voters to request absentee ballot applications from their county registrars already opened on
September 4, sixty days before the upcoming November 3 election. Miss. Code Ann. § 23-15-625.
Additionally, actual absentee ballots must be available for distribution to applicants by county
registrars beginning on September 19, forty-five days before election day, and in-person absentee
voting begins on September 21. Miss. Code Ann. § 23-15-715; see also [ROA.280-93 (Official 2020
Elections Calendar)].

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 On July 2, the Legislature passed HB 1521, which amended the disability

excuse provision to clarify who may qualify as having a “temporary physical

disability” in relation to the upcoming November election “due to COVID-19.” The

statutory language now provides:

(d) Any person who has a temporary or permanent physical disability

and who, because of such disability, is unable to vote in person without
substantial hardship to himself, herself or others, or whose attendance
at the polling place could reasonably cause danger to himself, herself or
others. For purposes of this paragraph (d), “temporary physical
disability” shall include any qualified elector who is under a physician-
imposed quarantine due to COVID-19 during the year 2020 or is caring
for a dependent who is under a physician-imposed quarantine due to
COVID-19 beginning with the effective date of this act and the same
being repealed on December 31, 2020.

[ROA.311 (underline in original), RE 3]. 3

As mentioned, unlike absentee voters in several other excuse categories, voters

who qualify as physically disabled under Section 23-15-713(d) may vote absentee in-

person or by mail. Miss. Code Ann. § 23-15-715(b). Two additional statutory nuances

further distinguish voters travelling under the “physical disability” excuse from all

other absentee voters.

First, to confirm their disability, permanently physically disabled voters must

submit a physician’s or nurse practitioner’s statement with their absentee

3 HB 1521 also amended Code Section 23-15-713(e) to include the same additional operative
language with respect to the parent, spouse, or dependent of hospitalized persons. [ROA.311-12, RE
3]. The Legislature’s additions to Sections 23-15-713(d) and -713(e) are the only substantive alterations
that HB 1521, or any other legislation passed during the 2020 Session, made to the Election Code’s
absentee excuses.

8
application. Miss. Code Ann. § 23-15-629(1). County registrars must thereafter keep

a list of those voters, and automatically send them absentee applications before every

election. Miss. Code Ann. § 23-15-629(2)-(4).

Second, unlike other voters qualified to vote absentee by mail, permanently

and temporarily physically disabled voters’ signatures on absentee ballot applications

and absentee ballots need only be witnessed by any person over eighteen years old.

Miss. Code Ann. § 23-15-715(b), § 23-15-721.

Plaintiffs’ Lawsuit

On August 11, five weeks after HB 1521 became law, but only a few weeks

before county officials were to start making absentee ballot applications available to

qualified electors, seven individuals filed this lawsuit against the Secretary of State,

and the Hinds and Rankin County Circuit Clerks. [ROA.15-46]. On August 26, six of

the plaintiffs, who are the Appellees/Cross-Appellants (“plaintiffs”) in this appeal,

filed their amended complaint which deleted one of the original plaintiffs’ claims.

[ROA.84-115].

Plaintiffs are each registered Hinds or Rankin County voters who intend to

vote in the upcoming November election. See [ROA.192-212]. According to their trial

affidavits, three of the plaintiffs have various medical issues, which most denominate

as “preexisting health conditions,” and believe their medical issues may place them

“at a higher risk of severe illness or death” if they contract COVID-19. [ROA.199-

208]. Two of the plaintiffs and/or their household members have medical issues,

which they consider “preexisting health conditions” or “medical vulnerabilities,” and

9
believe those medical issues may place them or their household members “at a higher

risk of severe illness or death” if they contract COVID-19. [ROA.192-98]. One of the

plaintiffs does not have a “pre-existing medical condition,” but is nevertheless

concerned that her “[a]ttendance at the polling place could reasonably cause me to

contract COVID-19, which is certainly a danger to anyone who contracts it.”

[ROA.209-12]. All the plaintiffs attested they are following “public health guidance,”

from some unspecified source, advising them to avoid “community events” or

“unnecessary public gatherings.” [ROA.192-212].

Plaintiffs’ amended complaint asserted no claims that Code Section 23-15-

713(d), the State’s absentee laws, or any other provisions of the Election Code are

unconstitutional or otherwise invalid. Their pleading also never squarely asked the

Chancery Court below to determine whether plaintiffs’ particular health conditions

and individualized circumstances qualify them to vote absentee under Section 23-15-

713(d). Instead, plaintiffs demanded broad declaratory relief for “any voter . . . during

the COVID-19 pandemic.” [ROA.113].

Specifically, plaintiffs asserted that “uncertainties” currently exist regarding:

who qualifies to vote absentee under Section 23-15-713(d), as amended (and thus

qualifies to vote absentee by mail); and whether “different clerks” will apply the

statutory provisions differently for the upcoming election which requires “judicial

clarification through a declaratory judgment.” [ROA.109]. Based on those alleged

“uncertainties,” plaintiffs advanced statutory interpretation claims focused on

10
Section 23-15-713(d)’s terms “temporary physical disability,” “physician-imposed

quarantine,” and “dependent.” [ROA.109-113].

Plaintiffs requested a declaratory judgment under Rule 57 establishing that:

(1) “Mississippi Code § 23-15-713(d) permits any voter with pre-existing

conditions that cause COVID-19 to present a greater risk of severe illness or death to

vote by absentee ballot during the COVID-19 pandemic”; and

(2) “Mississippi Code § 23-15-713(d) permits any voter to vote absentee if he or

she wishes to avoid in-person voting at a polling place due to guidance from the

Mississippi Department of Health (“MDH”), the CDC, or other physicians or public

health authorities to avoid unnecessary public gatherings during the COVID-19

pandemic or if he or she is caring for or supporting such a voter.”

[ROA.113]. Plaintiffs also demanded a mandatory preliminary and permanent

injunction requiring the Secretary of State to “instruct county election officials about

the application of Mississippi Code § 23-15-713(d) as declared by this Court,” and that

“orders the Defendants to take steps to educate the public about their right to vote by

absentee ballot under Mississippi Code § 23-15-713(d) as declared by this Court

during the COVID-19 pandemic.” [ROA.113].

On August 27, the Secretary of State answered plaintiffs’ amended complaint.

[ROA.116-32]. The next day, with the parties’ consent, the Chancery Court tried the

11
case on a stipulated record, the parties’ trial briefs, and arguments of counsel. See

[ROA.136-505, 575-639]. 4

On the evening of September 2, the Chancery Court issued an order fully

adjudicating the case. The decision acknowledged plaintiffs’ claims focused on:

whether Section 23-15-713(d)’s longstanding “temporary or permanent physical

disability” absentee excuse encompasses “an underlying physical condition that

places a voter at a higher risk of severe illness from COVID-19”; and whether Section

23-15-713(d)’s recently added “under a physician-imposed quarantine” provision is

triggered by “guidance from the MDH, the CDC, or other physicians who are public

health experts to avoid public gatherings.” [ROA.540, RE 2]. 5

In determining the meaning of Section 23-15-713(d)’s “temporary or

permanent disability” provision, the Chancery Court looked to a dictionary definition

of “disability,” as well as Congress’ technical construction rules for finding a

“disability” under the Americans with Disabilities Act, as amended by the ADA

Amendments Act of 2008. [ROA.541, RE 2].

Then, with respect to the statute’s new “under a physician-imposed

quarantine” provision, the Chancery Court found that a “‘physician-imposed

quarantine’ requires a personal physician or a [MDH] physician to impose quarantine

4 The parties stipulated to the admissibility of all filed exhibits, but not to the admissibility
of information included in internet references in the pleadings and trial briefs. [ROA.506-07].
5 The Chancery Court also acknowledged the parties agreed the term “dependent,” as used in

the statute’s “under a physician-imposed quarantine” provision, means “someone who relies upon
another for support.” [ROA.540, RE 2].

12
individually on the elector or someone who relies on the elector. An elector may rely

on his personal physician or the directives of the MDH and its physicians.” [ROA.542,

RE 2]. The Chancery Court further recognized that the State Health Officer has

issued an order, pursuant to his statutory authority, compelling persons diagnosed

with COVID-19 to quarantine, but then observed “MDH has also issued guidance for

those with a chronic illness or who are in poor health. The MDH states that people

‘with a chronic illness such as heart disease, diabetes, or lung disease’ and people who

are otherwise ‘in poor health’ should ‘stay home as much as possible.’” [ROA.542-43,

RE 2].

Next, although plaintiffs’ amended complaint and trial brief never specifically

requested it, the Chancery Court applied its interpretation of Section 23-15-713(d) to

the individual plaintiffs. The Chancery Court found that plaintiff Oppenheim (who

has lupus, chronic kidney disease, and is a kidney transplant recipient) and plaintiff

Miller (who is a cancer survivor and has undiagnosed spots on his lungs) each are

concerned that their conditions may place them “at a higher risk of severe illness or

death if [they] contract[] COVID-19,” and thus qualify to vote absentee under the

statute due to a “‘permanent physical disability’” and “‘because of such disability,’

[they are] unable to vote in person . . . [and their] attendance at the voting place could

reasonably cause danger” to them. [ROA.543-45, RE 2]. Similarly, the Chancery

Court determined plaintiff Parikh (who has severe asthma) and plaintiff Harwell

(who has Type 1 diabetes) both are concerned that their conditions may put them “at

a higher risk of severe illness or death if [they] contract[] COVID-19,” and thus have

13
a “‘temporary or permanent physical disability’” and because of their disabilities are

unable to vote in person without substantial hardship to themselves and “their

attendance at the voting place could reasonably cause danger” to them. [ROA.545-47,

RE 2].

The Chancery Court also found that, although they have concerns about

contracting COVID-19, plaintiff Clapton (who has no underlying conditions, but

whose wife has partial kidney failure and is immuno-compromised) and plaintiff

Colon (who has no underlying conditions) do not qualify to vote absentee under

Section 23-15-713(d). [ROA.547-49, RE 2]. However, the Chancery Court added that

plaintiff Clapton’s “inability to vote under paragraph (d) can easily be cured by his

wife’s physician recommending that his wife quarantine due to the high risk of severe

illness of death if she contracts COVID-19” and suggested that “[w]hile not an issue

presented for this court, his wife would qualify for an absentee ballot under [Section

23-15-713(d)’s physical disability provision].” [ROA.548, RE 2]. “It is not up to the

Clerk to decide whether any individual’s physical condition or ailments rise to the

level of a disability,” the Chancery Court also remarked, “nor is it the Clerk’s

responsibility to determine whether a person is at severe risk of illness or death if

they were to contract COVID-19. Any such determination shall be made by the elector

in good faith.” [ROA.549, RE 2].

In conclusion, the Chancery Court resolved plaintiffs’ asserted first claim for

declaratory relief as follows:

. . .as it pertains to the issue of 1) whether Mississippi Code § 23-15-

713(d) permits any voter with pre-existing conditions that cause

14
 COVID-19 to present a greater risk of severe illness or death to vote by
absentee ballot during the COVID-19 pandemic – is well-taken and the
relief sought is hereby GRANTED to the extent that such pre-existing
“physical. . . condition impairs, interferes with, or limits a person’s
ability to engage in certain tasks or actions or participate in typical daily
activities and interactions” or [is] an “impaired function or ability” that
interferes thereof.

[ROA.550, RE 2]. With respect to plaintiffs’ second claim, the Chancery Court held:

. . .as it pertains to. . .the issue of 2) whether Mississippi Code § 23-15-

713(d) permits any voter to vote absentee if he or she wishes to avoid
voting in-person at a polling place due to guidance from the MDH, the
CDC, or public health authorities to avoid unnecessary public
gatherings during the COVID-19 pandemic – is not well-taken and the
relief sought on that issue is hereby DENIED – however, a voter will be
allowed to vote absentee if he or she or any dependent has consulted
with a physician who recommends, because of that individual’s physical
disability or that of their dependent, not attending any public gathering
because of the possibility of contracting COVID-19 – is well-taken and
the relief sought is hereby GRANTED.

[ROA.550-51, RE 2]. The Chancery Court further denied plaintiffs’ requests for

injunctive relief, attorneys’ fees, and costs. [ROA.551, RE 2].

On September 3, Secretary of Watson appealed the Chancery Court’s

September 2 decision, and moved to expedite the appeal. [ROA.552-55; Motion #

2020-2925]. On September 4, plaintiffs filed a notice of cross-appeal, and the Rankin

County Circuit Clerk filed a notice of appeal. [ROA.560-62, 566-68]. Later that day,

this Court expedited the appeal and entered a briefing schedule. See [Order on Motion

# 2020-2925].

SUMMARY OF THE ARGUMENT

The Election Code establishes a system of in-person voting with only a narrow

set of excuses for voting absentee, and even fewer excuses for voting absentee by mail.

15
Plaintiffs’ creative statutory interpretation theories, if credited, would create a totally

different system of widespread mail-in absentee voting in this November’s election.

As a matter of law, however, Code Section 23-15-713(d)’s longstanding “physical

disability” absentee excuse, and the Legislature’s recent addition to that section for

voters “under a physician-imposed quarantine,” cannot properly be read to sustain

plaintiffs’ goal.

For decades, Section 23-15-713(d) has permitted voters with a “permanent or

temporary physical disability” to vote absentee by mail. In the court below, plaintiffs

contended that any voter with a pre-existing condition that might present greater

risk of complications if the voter contracts COVID-19 has a “physical disability” under

the statute. Plaintiffs’ theory is wrong. Only an actual “physical disability” triggers

Section 23-15-713(d)’s absentee excuse, and not every pre-existing condition

associated with COVID-19 risks is a “physical disability.”

By its plain terms, to vote absentee under Section 23-15-713(d), a voter must

have a “physical disability,” and “because of” that disability, voting in-person “could

reasonably cause danger” to the voter or others. Any voter who has a pre-existing

condition that is not itself a “physical disability” cannot satisfy the statute, whether

or not the voter believes that COVID-19 might make voting in-person dangerous. The

Chancery Court erred to the extent it suggested Section 23-15-713(d) applies to any

voter otherwise.

Plaintiffs also misread the Legislature’s recent addition to Section 23-15-

713(d), and the Chancery Court partially accepted their interpretation in error. In

16
July, HB 1521 added a new provision to Section 23-15-713(d)’s “physical disability”

excuse which provides that, for this November’s election, any voter who is “under a

physician-imposed quarantine” has a “temporary physical disability.” The phrase

“under a physician-imposed quarantine,” according to plaintiffs, includes anyone who

is following general public health guidance to avoid public gatherings. For its part,

the Chancery Court correctly disagreed with plaintiffs’ broad reading, but still

suggested that a mere physician’s “recommendation” to quarantine can be a

“physician-imposed quarantine.”

Both plaintiffs’ and the Chancery Court’s takes on the statute’s scope are

incorrectly overbroad. By its plain meaning, a voter is only “under a physician-

imposed quarantine” if the voter has been compelled to quarantine by an authorized

physician. A voter’s personal physician, who has authority over the voter by virtue of

their physician-patient relationship, may order the voter to quarantine. The State

Health Officer, or other physician authorized by law, may also order voters to

quarantine. In fact, Dr. Dobbs has recently ordered persons who have contracted

COVID-19 to quarantine, under penalty of law. That is a “physician-imposed

quarantine.” But a recommendation or generalized public health guidance, which

does not actually impose a quarantine on anyone, or compel anyone to do anything,

cannot suffice under the plain terms of the statute.

Even if “under a physician-imposed quarantine” could be ambiguous or

unclear, the same result holds true. The drafting history of the recent addition to the

statute confirms that the Legislature never intended for the phrase to be read

17
broadly. Other interpretative canons, including the whole act rule and consistency

principles, demonstrate the Legislature did not enact a new absentee excuse that

would flip the State’s in-person voting system to one that allows virtually anyone to

vote by mail-in ballot this Fall. Generalized public health guidance or

recommendations to avoid public gatherings do not put voters “under a physician-

imposed quarantine.”

Finally, the Chancery Court’s final order mistakenly implied that whether or

not a voter qualifies to vote absentee under Section 23-15-713(d) is solely up to the

voter. That relief was never requested in plaintiffs’ amended complaint, and the

Secretary of State objected to it at trial. More importantly, the Chancery Court’s

statements in that regard are inconsistent with the Election Code. All voters and

election officials are expected to abide by the law, and there is no reason to believe

they will not during this November’s election. But if the Chancery Court’s statements

remain uncorrected, it could create unnecessary misunderstandings about the

absentee voting process as it plays out across the State in the coming weeks.

ARGUMENT

Standard of Review

Statutory interpretation presents questions of law, and the standard of review

is de novo. Rex Distributing Co. v. Anheuser-Busch, 271 So. 3d 445, 449 (¶13) (Miss.

2019).

I. Section 23-15-713(d) Does Not Permit “Any Voter” to Vote Absentee Merely
Based on a Pre-existing Health Condition, Which is Not a Physical Disability,
and Concerns About Contracting COVID-19 at a Polling Place.

18
 Plaintiffs’ “pre-existing condition” claim seeks a broad declaration that Section

23-15-713(d) “permits any voter with pre-existing conditions that cause COVID-19 to

present a greater risk of severe illness or death to vote by absentee ballot during the

COVID-19 pandemic.” [ROA.113, 503]. The Chancery Court granted that relief “to

the extent that such pre-existing ‘physical . . . condition impairs, interferes with, or

limits a person’s ability to engage in certain tasks or actions or participate in typical

daily activities and interactions’ or [is] an impaired function or ability’ that interferes

thereof.” [ROA.550, RE 2]. But not every “pre-existing condition” which might make

contracting COVID-19 more dangerous to a particular voter constitutes a “physical

disability” under Section 23-15-713(d). Because the Chancery Court’s conclusion

obscured the statute’s requirements, it requires correction on appeal.

A. Section 23-15-713(d)’s absentee excuse requires voters to have an actual

“physical disability” and meet a causation requirement.

When interpreting statutes, this “Court’s role is not to decide what a statute

should provide, but to determine what it does provide.” Newsome v. Peoples

Bancshares, 269 So. 3d 19, 26 (¶15) (Miss. 2018) (quotes omitted). “Whatever the

Legislature says in the text of the statute is considered the best evidence of the

legislative intent.” Gregory v. Central Life Ins. Co., 953 So. 2d 233, 240 (¶30) (Miss.

2007) (quotes omitted). And when, as here, “the language used by the legislature is

plain and unambiguous . . . and where the statute conveys a clear and definite

meaning . . . the Court will have no occasion to resort to the rules of statutory

interpretation.” Mississippi Ethics Comm’n v. Grisham, 957 So. 2d 997, 1001 (¶12)

(Miss. 2007) (quotes omitted) (emphasis in original).

19
 Section 23-15-713(d)’s text requires voters to meet two requirements in order

to vote absentee by mail:

Any person who has a temporary or permanent physical disability and

who, because of such disability, is unable to vote in person without
substantial hardship to himself, herself or others, or whose attendance
at the voting place could reasonably cause danger to himself, herself or
others.

Miss. Code Ann. § 23-15-713(d) (Rev. 2020). 6 The conjunction “and” connects the

statute’s “physical disability” requirement with its causation requirement. A voter

must thus meet both distinct requirements to vote absentee.

Only a voter who actually has a “temporary or permanent physical disability”

satisfies the statute’s “physical disability” requirement. Neither the statute, nor the

Election Code, define “temporary or permanent physical disability.” Undefined terms

in a statute “must be given [their] common and ordinary meaning,” and dictionary

definitions are authoritative in that regard. Buffington v. Mississippi State Tax

Comm’n, 43 So. 3d 450, 455 (¶16) (Miss. 2010). 7 The noun “disability” means a

“physical . . . condition that impairs, interferes with, or limits a person’s ability to

6 Voters who qualify under Section 23-15-713(d)’s absentee excuse may vote absentee by mail.
See Miss. Code Ann. § 23-15-715(b).
7 When analyzing the meaning of “physical disability,” in addition to the dictionary definition
of “disability,” the Chancery Court quoted and emphasized several statutorily-established construction
rules for determining a “disability” under the Americans with Disabilities Act, 42 U.S.C. § 12102.
[ROA.541, RE 2]. The degree to which the federal Act’s specialized provisions factored in the Chancery
Court’s analysis is unclear. Nevertheless, the Chancery Court’s reference to the ADA’s technical
construction rules was confusing—and it should go without saying that relying on a federal law’s
statutorily-defined, and highly technical, “disability” provisions to interpret the undefined term
“physical disability” in Section 23-15-713(d) (which was enacted in 1986, before Congress first enacted
42 U.S.C. § 12102 in 1990, and amended it in 2008) is the antithesis of affording an undefined statutory
term its “common and ordinary meaning.” Buffington, 43 So. 3d at 455 (¶16).

20
engage in certain tasks or actions or participate in typical daily activities and

interactions” or an “impaired function or ability.” 8 Accordingly, and stated fairly, to

meet the statute’s “temporary or permanent physical disability” requirement, a voter

must have a temporary or permanent physical condition that diminishes the voter’s

ability to engage in routine everyday activities.

Section 23-15-713(d) also requires that “because of” the voter’s “temporary or

permanent physical disability,” either the voter must be “unable to vote in person

without substantial hardship to himself, herself or others,” or the voter’s “attendance

at the voting place could reasonably cause danger to himself, herself or others.”

Reading both its components together, Section 23-15-713(d) plainly means

what it says. To vote absentee, a voter must have a temporary or permanent physical

condition that diminishes the voter’s ability to engage in routine everyday activities

(a “physical disability”), and because of that “physical disability,” voting in-person

would cause a substantial hardship, or could reasonably cause danger, to the voter or

others (causation).

B. Plaintiffs’ interpretative theory, which the Chancery Court apparently

endorsed, undermines Section 23-15-713(d)’s “physical disability”
requirement.

8 Disability, Merriam-Webster, https://www.merriam-webster.com/dictionary/disability (last

visited September 8, 2020); see also Disability, BLACK’S LAW DICTIONARY (11 ed. 2019) (“An objectively
measurable condition of impairment, physical or mental, esp. one that prevents a person from
engaging in meaningful work.”).

21
 In the court below, plaintiffs never expressly disputed that Section 23-15-

713(d) requires both a “physical disability” and a causation showing. Yet, in their

amended complaint and trial brief, plaintiffs demanded a declaration that “Section

23-15-713(d) permits any voter with pre-existing conditions that cause COVID-19 to

present a greater risk of severe illness or death to vote by absentee ballot during the

COVID-19 pandemic.” [ROA.113, 503]. Their trial brief argued that “individuals with

an underlying condition that places them at a higher risk of severe illness or death

from COVID-19 ‘could reasonably cause danger to himself, herself or others’ at a

voting precinct. Thus, these conditions constitute a disability that allows a person to

vote absentee under Section 713(d).” [ROA.497]. The Chancery Court’s order

seemingly credited plaintiffs’ argument by granting their requested relief, albeit with

a confusing qualification. [ROA.550, RE 2]. The Chancery Court’s approach was

misplaced.

As Section 23-15-713(d)’s text makes plain, only a “physical disability” triggers

its absentee excuse. “Any voter” does not have a “physical disability” merely because

the voter has an “underlying condition,” which might pose a higher risk of

complications from COVID-19 and makes the voter believe that voting in-person

could be dangerous. Moreover, as the statute’s text proves, the tail cannot wag the

dog. Satisfying only Section 23-15-713(d)’s causation requirement (here, a voter’s

belief that “attendance at the voting place could reasonably cause danger to himself,

herself or others” because of COVID-19 concerns) does not establish the statute’s

“physical disability” requirement.

22
 A handful of identified “underlying conditions” might make COVID-19 more

dangerous to a voter who has one of the conditions. But it is not fair to say—across-

the-board, as plaintiffs demanded and the Chancery Court implied—that “any voter”

who has one or more of those conditions positively has a “physical disability” under

Section 23-15-713(d). 9

Admittedly, as the Chancery Court found, four individual plaintiffs proved

their current health conditions constitute a “physical disability” for purposes of

Section 23-15-713(d). [ROA.543-47, RE 2]. The Chancery Court also correctly

determined that the two other plaintiffs, who have no health conditions which may

make them more susceptible to severe illness from COVID-19, do not have a “physical

disability” under the statute. [ROA.547-49, RE 2]. But nobody proved that “any voter”

other than four of the individual plaintiffs can vote absentee under Section 23-15-

713(d).

Section 23-15-713(d) does not allow “any voter” with merely an underlying

condition, which is not a “physical disability,” and concerns about COVID-19 to vote

absentee. This Court should reverse the Chancery Court’s order to the extent its

conclusions suggest the statute means anything else, and confirm that a voter’s

9 For example, as plaintiffs’ own key trial exhibit shows, the CDC currently considers
“hypertension” and “smoking” as “conditions” that “might” put someone “at an increased risk for severe
illness from COVID-19.” [ROA.226-27]. Smokers or persons with high blood pressure could conceivably
have a “physical disability,” but it is impossible to say that every voter who smokes or has hypertension
always, as plaintiffs’ theory goes, has a “physical disability.”

23
“underlying condition” must itself constitute a “physical disability” to qualify under

Section 23-15-713(d)’s absentee excuse.

II. The Legislature’s Recent Addition to Section 23-15-713(d) Only Permits Voters
Compelled to Quarantine by an Authorized Physician to Vote Absentee.

Plaintiffs’ second claim seeks a declaration that Section 23-15-713(d)’s “under

a physician-imposed quarantine” provision, which HB 1521 recently added for this

November’s election, “permits any voter to vote absentee due to guidance from the

MDH, the CDC, or other physicians or public health authorities to avoid unnecessary

public gatherings and community events during the COVID-19 pandemic.” [ROA.113,

503]. The Chancery Court rejected plaintiffs’ flawed proposition, but then apparently

declared that the statutory phrase “under a physician-imposed quarantine” includes

a physician’s mere “recommendation” to an individual voter to avoid public events.

[ROA.550, RE 2]. The latter misreading of the statute was in error.

A. The plain meaning of “under a physician-imposed quarantine” requires

a mandate issued by a duly-authorized physician that compels a voter
to quarantine, not mere “guidance” or a “recommendation.”

Similar legal principles used above in Section I. A.’s plain meaning analysis of

“temporary physical disability” likewise apply when interpreting the phrase “under

a physician-imposed quarantine” that HB 1521 added to Section 23-15-713(d). For

purposes of absentee voting in this November’s election, voters with a “temporary

physical disability” under Section 23-15-713(d) will specifically include “any qualified

elector who is under a physician-imposed quarantine due to COVID-19 during the

24
year 2020 or is caring for a dependent who is under a physician-posed quarantine due

to COVID-19.” Miss. Code Ann. § 23-15-713(d) (Rev. 2020). 10

The phrase “under a physician-imposed quarantine” is straightforward. “No

citation is needed for the principle that” when a statute’s “words are clear and concise,

courts and agencies are bound to apply their usual and ordinary meaning.” City of

Tchula v. Mississippi Public Serv. Comm’n, 187 So. 3d 597, 600 (¶11) (Miss. 2016).

And as previously mentioned, when Mississippi courts seek to determine the

“common and ordinary meaning” of a phrase, “consulting the phrase’s dictionary

definition is appropriate.” Buffington, 43 So. 3d at 455 (¶16) (Miss. 2010).

The noun form of “quarantine” means “a restraint upon the activities or

communication of persons or the transport of goods designed to prevent the spread of

disease” or “a state of enforced isolation.” 11 The transitive verb “impose” means “to

establish or apply by authority” or “to establish or bring about as if by force.” 12 When

those words are used together to form the phrase “under a physician-imposed

quarantine,” that term means subject to a mandatory restraint, or state of enforced

isolation, established by an authorized physician. Thus, the Legislature’s recent

clarification that a voter “under a physician-imposed quarantine” qualifies to vote

10 As the Chancery Court noted, only the meaning of the phrase “under a physician-imposed
quarantine” as used in HB 1521’s addition is at issue in the case. The parties agreed that the term
“dependent,” as used in the second part of HB 1521’s recent addition, means someone who relies upon
another for support. [ROA.540, RE 2].
11 Quarantine, Merriam-Webster, <https://www.merriam-webster.com/dictionary/

quarantine> (last visited September 8, 2020).

12 Impose, Merriam-Webster, <https://www.merriam-webster.com/dictionary/impose> (last

visited September 27, 2020).

25
absentee, by definition, only extends to a voter who has been compelled to quarantine

due to COVID-19 by an authorized physician.

A “physician-imposed quarantine” exists, for example, if a voter’s personal

physician (who has authority over the voter by virtue of their established physician-

patient relationship) requires the voter to quarantine, and thus renders the voter

eligible to cast an absentee ballot under the “physical disability” excuse in Section 23-

15-713(d).

Similarly, a physician authorized by law may compel a particular voter, or

specifically defined group of voters, to quarantine and thereby trigger Section 23-15-

713(d)’s “temporary physical disability” absentee excuse. On August 4, 2020, in fact,

the State Health Officer issued an “Order for the Isolation of Individuals Diagnosed

with COVID-19” that meets the statute’s definition precisely. See [ROA.462-64, RE

3]. Dr. Dobbs’ order requires that all “[p]ersons infected with COVID-19, and not

hospitalized, must remain in the home or other appropriate residential location for

14 days from onset of illness (or from the date of a positive test for those who are

asymptomatic).” [ROA.462, RE 3].

Far different from CDC guidance to the public-at-large or a physician’s non-

binding recommendation to an individual or group, all persons subject to Dr. Dobbs’

order must follow it, or face statutorily-established penalties. See Miss. Code Ann §

41-3-59, § 41-23-2. Persons ordered to quarantine under the August 4 order are

plainly “under a physician-imposed quarantine,” in every sense, for purposes of Code

Section 23-15-713(d)’s “temporary physical disability” absentee excuse.

26
 The objectively-determinative factors are that only a voter who has been

compelled by an authorized physician to quarantine qualifies to vote by absentee

ballot utilizing the Legislature’s recent clarification of the Code’s “temporary physical

disability” excuse.

Plaintiffs’ position on “under a physician-imposed quarantine” contradicts

Section 23-15-713(d)’s plain meaning. Their argument ignores the fact that

unenforceable “guidance” does not mandate that anyone must quarantine. Plaintiffs’

skewed reading also sidesteps the fact that only an authorized physician can compel

a voter to quarantine. Worse still, adopting plaintiffs’ view would effectively qualify

all voters to cast absentee ballots by mail based on a subjective, self-manufactured,

and unenforceable “quarantine.” Section 23-15-713(d), as amended, does not support

that ultimate result.

For its part, the Chancery Court correctly rejected plaintiffs’ position, but in

doing so, still interpreted “under a physician-imposed quarantine” too broadly. After

denying plaintiffs’ requested relief, the Chancery Court added that a voter may “vote

absentee if he or she or any dependent has consulted with a physician who

recommends, because of that individual’s physical disability or that of their

dependent, not attending any public gathering because of the possibility of

contracting COVID-19.” [ROA.550, RE 2]. Similar to the fatal flaws in plaintiffs’

interpretation of the statute, a “recommendation” does not require anyone to do

anything. The statute specifically requires a “physician-imposed quarantine.” By

suggesting a “recommended” quarantine qualifies as a “physician-imposed

27
quarantine,” the Chancery Court blurred the bright line between what the statute’s

plain language does and does not provide.

To underscore these points, applying Section 23-15-713(d) consistent with its

plain meaning, the following practical examples illustrate when a voter is actually

“under a physician-imposed quarantine,” and thus can claim a “temporary physical

disability” to vote absentee by mail, and when the voter is not:

Under a Physician-imposed Not “Under a Physician-imposed Quarantine”

Quarantine”

28
Voter ordered to quarantine by his or Voter receives a recommendation from a
her own physician physician to limit public interactions

Voter subject to order issued by a Voter aware of non-binding CDC or Mississippi

government official-physician, such as Department of Health advice recommending that
the State Health Officer, that compels persons should stay home as much as possible
the voter to quarantine, under and to avoid community or other public group
authority of law events

Voter reads statements by a physician in a

newspaper suggesting people should stay home
when possible

Voter reads statements in a physician-authored

research paper noting the possibility of
contracting COVID-19 in public places

Voter watches a cable news program where a

guest physician opines that a future spike in
COVID-19 cases will occur in the Fall

Voter views information on the internet, or social

media, which suggests public health authorities
have issued guidance to self-quarantine

In sum, “under physician-imposed quarantine” means exactly what it says.

Only an order by an authorized physician that compels a voter to quarantine counts.

That is precisely what the Chancery Court below should have held, without more.

Based on the statute’s plain meaning, this Court should hold that only voters

compelled to quarantine by an authorized physician may vote absentee under HB

1521’s recent amendment to Section 23-15-713(d).

B. Statutory construction principles also thwart an expansive

interpretation of “under a physician-imposed quarantine.”

Mississippi courts only look past a statute’s text to principles of statutory

construction if the text is unclear or ambiguous. Grisham, 957 So. 2d at 1001 (¶12).

The Chancery Court never found the phrase “under a physician-imposed quarantine”

29
is ambiguous, and plaintiffs have never genuinely argued that either. But even

assuming the phrase could be considered unclear, and thus trigger any interpretative

principles, all relevant construction principles bolster the conclusion that “under a

physician-imposed quarantine” is limited to an authorized physician’s order

compelling a voter to quarantine.

1. HB 1521’s legislative history proves its phrase “under a physician-

imposed quarantine” must be read and applied narrowly.

As Judge Leslie Southwick has explained, in construing statutes, “[a] useful

perspective on how to interpret the final enactment is gained by examining the

drafting context, i.e., the process of revision that culminated in the statute.” Dawson,

735 So. 2d at 1138-39 (¶31) (Southwick, P.J.). By looking at the legislature’s final

enactment, “then reviewing what was discarded or appended, [courts] can better

understand what the ultimate creation is supposed to be—and not be.” Id.

HB 1521’s drafting history conclusively establishes the Legislature did not

intend for Section 23-15-713(d)’s amended language to allow absentee mail-in voting

based on mere “guidance,” “recommendations,” or subjective concerns about catching

COVID-19 at the polls. HB 1521’s original draft, as introduced in the Legislature and

passed by the House on March 10, did not propose to modify Section 23-15-713(d), or

any other absentee excuses. See [ROA.338-40, 341-52]. Subsequently, as everyone

knows, a rise in Mississippi COVID-19 cases occurred, and the Legislature suspended

its Session.

When the Legislature reconvened a few months later, committees studied the

need to amend HB 1521 in response to growing concerns about the spread of COVID-

30
19. On June 8, the Senate Elections Committee adopted a strike-all amended version

of the bill, and, a week later, the full Senate passed the amended version, with even

further floor amendments. See [ROA.353-88]. With respect to Section 23-15-713(d),

the Senate proposal included the following language:

(d) . . . For purposes of this paragraph (d), “temporary physical

disability” shall include any qualified elector unable to appear
personally at the polling place of the election district in which he or she
is a qualified elector because the elector is under a physician-imposed
quarantine due to the concern of a COVID-19 public health risk or is
caring for a dependent that is under a physician-imposed quarantine
due to the concern of a COVID-19 public health risk, during such time
as a State of Emergency is declared by the Governor due to COVID-19.

[ROA.399 (emphasis added)].

On June 19, the full House rejected the Senate version, which resulted in a

conference. See [ROA.338-40]. A week later, House and Senate conferees filed the

final version. See [ROA.338-40, 424-61]. Then, a few days later, the full House and

Senate approved the bill’s final version, which the Governor signed on July 8. See

[ROA.301-37, RE 3]. The bill, as approved by both houses and the Governor, rejected

the terms “under a physician-imposed quarantine due to the concern of a COVID-19

public health risk” in favor of the final enacted version’s operative language: “under

a physician-imposed quarantine due to COVID-19.” [ROA.311, RE 3].

By rejecting the terms “due to the concern of a COVID-19 public health risk”

in favor of the narrower phrase its final version incorporated in Section 23-15-713(d),

the Legislature confirmed that a voter’s subjective COVID-19 concerns alone do not

qualify him or her to vote absentee. The bill’s drafting history confirms what HB

1521’s “under a physician-imposed quarantine” disability excuse, as Judge Southwick

31
put it, actually “is supposed to be—and not be.” Dawson, 735 So. 2d at 1139 (¶31)

(emphasis added). HB 1521 is not a panacea for just anyone who wishes to vote

absentee by mail for the November election. Only a voter under an authorized

physician’s quarantine order can take advantage of HB 1521’s new provision.

In the Chancery Court, plaintiffs never contended that any of HB 1521’s

drafting history supports their interpretation of “under a physician-imposed

quarantine.” But they did advance an astonishing legislative history approach, which

no Mississippi appellate court has ever endorsed.

Specifically, in their amended complaint and trial brief below, plaintiffs argued

a single legislator’s statements concretely-establish the entire Legislature’s intent

behind the meaning of “under a physician-imposed quarantine.” Specifically,

plaintiffs’ amended complaint and trial briefing argued that during a House floor

debate between Rep. Jarvis Dortch and Rep. Jansen Owen over HB 1521 in late June,

Rep. Owen “clarified” that the Legislature really intended to allow voters who self-

quarantine based on non-binding guidance to cast mail-in ballots as “temporarily

physically disabled.” [ROA.107-08, 495]. 13 Plaintiffs’ floor debate argument gets them

nowhere fast.

A single legislator’s statements obviously cannot establish the true meaning of

a phrase, much less the collective intent of the entire Legislature. Under longstanding

13 A few days after the June 28 floor exchange, Rep. Dortch resigned from the Legislature and
took a position as the Executive Director of ACLU of Mississippi (plaintiffs’ counsel in this case).

32
Mississippi law, a legislator’s testimony is irrelevant hearsay in a statutory

interpretation dispute. Mississippi Gaming Comm’n v. Imperial Palace of Mississippi,

Inc., 751 So. 2d 1025, 1028 (¶14) (Miss. 1999). As Justice Fred Banks succinctly

explained in Imperial Palace, “[w]hile examination of legislative intent is necessary

to determine the meaning of ambiguous or contradictory statutes . . . Testimony to

explain the motives which operated upon the law-makers, or to point out the objects

they had in view, is wholly inadmissible.” Id. at 1028 (¶14) (quotes omitted). The

reason for that rule makes great sense: crediting what individual legislators might

say about the meaning of a statute “would take from the statute every semblance of

certainty, and make its character depend upon the varying and conflicting statements

of witnesses.” Id. at 1028-29 (¶14) (quotes omitted).

Assuming Rep. Owen’s alleged statements could ever prove what the

Legislature intended HB 1521 to mean (which they do not), on this appeal, his

statements do not prove anything. 14 Meanwhile, HB 1521’s relevant legislative

history, and specifically its drafting history, reinforces the true meaning of the bill’s

phrase “under a physician-imposed quarantine” and its import here—a voter must be

actually subject to an authorized physician’s order to quarantine to vote absentee by

mail in the November election.

14 Even if Rep. Owen’s floor statements could be considered in a statutory interpretation

inquiry (which they cannot), his statements are vague and inconclusive, at best. See N.L.R.B. v. SW
General, Inc., 137 S.Ct. 929, 943 (2017) (“floor statements by individual legislators rank among the
least illuminating forms of legislative history”).

33
 2. Narrowly construing “under a physician-imposed quarantine” comports
with the Election Code’s policy preference for in-person voting.

The whole act rule requires that when “construing statutes, all statutes in pari

materia are taken into consideration, and a legislative intent deduced from a

consideration as a whole.” Imperial Palace, 751 So. 2d at 1029 (¶15) (quotes omitted);

see also Ashcraft v. Bd. of Sup’rs of Hinds County, 36 So. 2d 820, 822-23 (Miss. 1948)

(“In construing statutes, the court looks to the entire legislation upon the subject, and

determines the policy of the Legislature from a consideration of all the statutes

together.”); Henderson v. Blair, 59 So. 856, 857 (Miss. 1912) (“One of the cardinal

rules in the construction of a statute is that the legislative intent must be determined

from a view of the whole act with reference to the subject-matter to which it applies.”).

The Election Code establishes, as a whole, a comprehensive in-person voting

system, with a few absentee balloting exceptions. HB 1521’s recent addition to

Section 23-15-713(d) must be read in that context. And, when it is, the whole act rule

dictates that “under a physician-imposed quarantine” can only mean that an

authorized physician’s order compelling a voter to quarantine is required before a

voter may claim an absentee excuse.

A broader reading of “under a physician-imposed quarantine” would turn the

Election Code’s voting system inside-out. Public health authority recommendations

regarding COVID-19 are general recommendations to everyone. If those general and

toothless recommendations somehow create a “physician-imposed quarantine,” then

conceivably any voter, regardless of their health or beliefs about COVID-19, could

vote absentee by mail. That unintended consequence does not comport with the

34
Election Code’s clear policy preference for in-person voting, with narrowly-limited

exceptions. 15

3. A broad reading of “under a physician-imposed quarantine” is

inconsistent with the Code’s mail-in absentee voting excuses.

Not only would an overbroad interpretation of “under a physician-imposed

quarantine” conflict with the Election Code as a whole, reading that phrase

expansively would produce an internal statutory conflict within Section 23-15-713.

Mississippi statutory construction requires “that a statute receive such construction

as will, if possible, make all its parts harmonize with each other, and render them

consistent with its scope and object.” Owens Corning v. Mississippi Ins. Guar. Ass’n,

947 So. 2d 944, 946 (¶7) (Miss. 2007); see also Leslie H. Southwick, 8 MS Prac.

Encyclopedia § 68:69 (2d ed.) (“Statutes must receive a reasonable construction,

reference being had to all their provisions, force and effect being given not only to

narrowly isolated and disjointed clauses, but to their plain spirit, broadly taking all

their provisions together in one rational view.”). That well-recognized consistency

principle only further proves that, contrary to plaintiffs’ position, “under a physician-

imposed quarantine” must be read and applied narrowly.

15At trial, plaintiffs acknowledged the whole act rule and the State’s policy preference for in-
person voting, but argued HB 1521 was enacted as “an extraordinary measure taken for an
extraordinary time.” [ROA.596]. Be that as it may, the fact that HB 1521 employed a narrow, objective
phrase in response to the COVID-19 conditions existing earlier this year—as opposed to broader
language the Legislature could have chosen, such as an express provision allowing all voters to cast
absentee ballots by mail—only further underscores the point that the Legislature never intended to
create a wide-open expansion of mail-in balloting for the upcoming election.

35
 Like the Election Code’s overarching requirement of in-person voting with few

limited absentee excuses, its legislatively-established excuses for mail-in balloting

apply only to narrow and objective classes of voters. See Miss. Code Ann. § 23-15-

713(d)-(f), § 23-15-715(b), § 23-15-721. A voter either is or is not: age 65 or over;

temporarily residing outside the county where he or she is registered; permanently

or temporarily physically disabled; or attending to a hospitalized relative who is

permanently or temporarily physically disabled. Miss. Code Ann. § 23-15-713(d)-(f),

§ 23-15-715(b). And whether or not a particular voter falls within those classes can

be proved or disproved.

Plaintiffs’ version of Section 23-15-713(d) would establish a subjective and

unverifiable absentee excuse. If non-binding, ever-evolving general public health

“guidance” or a mere “recommendation” qualifies as placing a voter “under a

physician-imposed quarantine,” then every voter (currently) would have the option to

deem himself or herself eligible to vote by mail. Contrary to plaintiffs’ broad reading

of the Section 23-15-713(d), the section’s other narrow and objective excuse provisions

show the Legislature never intended to tack a wide-open outlier excuse on to the

statute.

In sum, even assuming “under a physician-imposed quarantine” is ambiguous

and statutory construction is required, the only interpretative canons relevant here

demonstrate the Legislature never intended to create anything more than an

opportunity for voters ordered to quarantine by an authorized physician to vote

absentee by mail in the upcoming election. The Chancery Court erred to the extent it

36
read “under a physician-imposed quarantine” any broader. This Court should hold

HB 1521’s amendment to Section 23-15-713(d) only allows a voter compelled to

quarantine by an authorized physician to vote absentee this Fall.

III. The Chancery Court Mistakenly Implied That Section 23-15-713(d) Turns
Solely on a Voters’ “Good Faith” Belief That They Are Temporarily Physically
Disabled And May Vote Absentee.

As a final, but not insignificant matter, after analyzing the individual

plaintiffs’ disability arguments but before reaching its ultimate holdings, the

Chancery Court remarked:

It is not up to the Clerk to decide whether any individual’s physical

condition or ailments rise to the level of a disability nor is it the Clerk’s
responsibility to determine whether a person is at a severe risk of illness
or death if they were to contract COVID-19. Any such determination
shall be made by the elector in good faith.

[ROA.549, RE 2]. That is only a partially true statement. It deserves correction. The

statement leaves a mistaken impression that county officials must blindly issue

applications to anyone who claims an absentee excuse.

On the day before trial, plaintiffs slipped an extra request for relief into their

trial brief seeking a declaration that “each voter is entitled to make their own decision

about whether they qualify for an absentee ballot under the disability excuse so long

as that decision is made in good faith.” [ROA.503]. Their belated request was not

included in the amended complaint’s prayer for relief, [ROA.113-14], and the

Secretary of State objected to its consideration the next day at trial. [ROA.619-20].

The issue was never properly raised and not properly before the Chancery

Court. Moreover, the Chancery Court’s observation was off-base. The truth is that

37
state law makes both voters and county officials responsible for ensuring only

qualified voters under Section 23-15-713’s absentee excuses take advantage of them.

The Election Code authorizes county registrars “to disburse applications for

absentee ballots to any qualified elector within the county where he serves,” Miss.

Code Ann. § 23-15-625(2), and registrars are only “responsible for furnishing an

absentee ballot application form to any elector authorized to receive an absentee

ballot.” Miss. Code Ann. § 23-15-627 (emphasis added). During the process, voters

applying for an absentee ballot are responsible for completing the application form,

which requires the voter to select an absentee excuse and “fill in the application as is

appropriate for his particular situation.” Miss. Code Ann. § 23-15-717 (emphasis

added). In executing the application, the voter swears that “I realize that I can be

fined up to Five Thousand Dollars ($5,000) and sentenced up to five (5) years in the

Penitentiary for making a false statement in this application and for selling my vote

and violating the Mississippi Absentee Voter Law.” Miss. Code Ann. § 23-15-627. And,

consistent with that affirmation, willfully swearing out a false statement on an

absentee application or ballot is a crime of vote fraud. Miss. Code Ann. § 23-15-753.

Voters are required to make a good faith determination that they qualify before

executing their absentee paperwork. Local officials are likewise obligated to act in

good faith when ensuring that only authorized voters apply for and cast absentee

ballots. There is no reason to believe that plaintiffs and the local officials in this case

will not discharge those good faith obligations without incident in the coming weeks.

And there is no reason to think all other voters and local officials around the state

38
will do the same. However, to prevent any possible misunderstandings on those

issues, this Court should correct the Chancery Court’s implication that voters are

entitled to unilaterally claim any absentee excuse they choose.

CONCLUSION

For the foregoing reasons, the Secretary of State requests that the Court

reverse the findings and conclusions in the Chancery Court’s September 2 final order

to the extent they are adverse to the Secretary of State, and render a judgment in the

Secretary’s favor on all issues presented in his appeal and plaintiffs’ cross-appeal.

Respectfully submitted,

LYNN FITCH
Attorney General of Mississippi

By: /s/ Justin L. Matheny

KRISTI H. JOHNSON (Bar No. 102891)
Solicitor General
KRISSY C. NOBILE (Bar No. 103577)
Deputy Solicitor General
JUSTIN L. MATHENY (Bar No. 100754)
Assistant Solicitor General
DOUGLAS T. MIRACLE (Bar No. 9648)
Assistant Attorney General
MISSISSIPPI ATTORNEY GENERAL’S OFFICE
P.O. Box 220
Jackson, Mississippi 39205-0220
Telephone: (601) 359-3680
E-mail: kristi.johnson@ago.ms.gov
krissy.nobile@ago.ms.gov
justin.matheny@ago.ms.gov
doug.miracle@ago.ms.gov

Counsel for Appellant/Cross-Appellee

Secretary of State Michael Watson

CERTIFICATE OF SERVICE

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 I hereby certify that the foregoing document has been filed electronically with

the Clerk of the Court using the MEC system, which sent notification to all counsel of

record, and has also been mailed, via U.S. Mail, postage pre-paid to the following:

Hon. Denise S. Owens

Hinds County Chancery Court Judge
P.O. Box 686
Jackson, MS 39205-0686

THIS, the 8th day of September, 2020.

LYNN FITCH
Attorney General of Mississippi

/s/ Justin L. Matheny

Justin L. Matheny

Counsel for Appellant/Cross-Appellee

Secretary of State Michael Watson

40