- Associated Press - Tuesday, May 17, 2016

JACKSON, Miss. (AP) - Lawyers for Republican leaders of the Mississippi House of Representatives say a lawsuit seeking to reinstate a Democratic representative should be dismissed.

In pleadings filed last week, lawyer Michael Wallace wrote that the suit filed by five Smith County voters is flawed. Plaintiffs want Democrat Bo Eaton of Taylorsville restored to the seat that the House voted 67-49 in January to award to Republican Mark Tullos of Raleigh.

Wallace argued in three separate motions that the Legislature, House Speaker Phillip Gunn and four Republican members of the committee that recommended seating Tullos are immune from being sued. He also argued that a federal judge lacks jurisdiction over state election disputes not alleged to involve racial discrimination and that the House correctly followed Mississippi law.

U.S. Magistrate Judge Linda Anderson ordered evidence-gathering halted until U.S. District Judge Carlton Reeves rules on the motions for dismissal.

The five voters sued in March, saying the House broke federal equal protection guarantees when it tossed out five unidentified provisional ballots for Eaton from the November election. The five ballots came from a group of nine that included votes by the five plaintiffs, although the plaintiffs said they’re not sure whether their ballots were discarded. All say they voted for Eaton.

The Democrat had apparently won a sixth term by drawing a long straw against Tullos after the election officials declared the vote in House District 79 was tied.

Tullos’ victory in the district covering Smith County and part of Jasper County gave House Republicans a three-fifths supermajority. That means a unified GOP can change tax laws without consulting Democrats.

Wallace stuck by the committee’s finding that a 2003 state Supreme Court decision required voters who moved to a new precinct in the same county more than 30 days before an election to notify the circuit clerk in writing of their new address or be disqualified from voting. The secretary of state had advised election officials to count such ballots even if a voter didn’t send an address update.

He also said courts have recognized that lawmakers have immunity for legislative actions and when Congress passed the law allowing suits in 1871, it “would certainly have understood the power to judge elections to be part of the legislative function.”

Wallace wrote that Congress didn’t give federal district courts the power to judge state legislative election contests unless racial discrimination is alleged. The suit makes no racial discrimination claims.

The lawyer also said that Eaton himself was the one with standing to bring a lawsuit, and not voters.

Finally, Wallace said the 11th Amendment to the U.S. Constitution gives Mississippi sovereign immunity from being sued.

“The House holds all of the power of the state of Mississippi over this subject, and suit against the House is necessarily a suit against the state, barred by the 11th Amendment,” he wrote.

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Follow Jeff Amy at: https://twitter.com/jeffamy. His work can be found at https://bigstory.ap.org/author/jeff-amy

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