Republicans thought their nominee for Senate District 9 was just the person to upset four-term Democratic incumbent Gray Tollison in Lafayette, Tallahatchie and Yalobusha Counties. Former Ole Miss football star turned Oxford businessman Todd Wade looked to capture the more conservative county voters, while his university connection and NFL career with the Dolphins, Texans, Redskins and Jaguars could appeal to football loving swing-voters in the city. In a call that has many GOPers booing the refs, the State Board of Election Commissioners (SBEC) sidelined Wade, removing him from the ballot and leaving Republicans no one on the roster to challenge Tollison.

The state Election Commission - comprised of Gov. Haley Barbour, Secretary of State Delbert Hosemann and Attorney General Jim Hood - approved the statewide election ballot. At the Sept. 9 meeting, Hosemann questioned whether Wade met the qualifications to run for state senate, specifically had he been a registered voter of Mississippi for four years.

Wade's voter registration in Lafayette County did not cover four years, although Wade maintained by sworn affidavit he registered to vote in Rankin County in high school. If true, that would be sufficient. However, he could not produce proof and acknowledged not voting in Mississippi during college or his NFL career. Wade's legal team said the proof could have been lost or purged from the Rankin County Circuit Clerk's Office. Hood said he would be more comfortable with an affidavit from the circuit clerk stating such. Hosemann and Hood voted to keep Wade on the ballot pending further proof. Barbour opposed saying at that point in time they should not remove Wade from the ballot regardless.

At the September 13 SBEC meeting, Wade presented affidavits by the circuit clerk attesting the proof could have been lost, and an affidavit from his high school teacher stating her practice was to conduct voter registration for her senior students including Wade. There was no evidence to show Wade was not a qualified elector. Hood argued when the state questioned a candidate's qualifications, the burden of proof shifted so rather than the state showing a candidate is not qualified; the candidate must instead prove he is qualified.

Lieutenant Governor Phil Bryant chaired that meeting as acting governor (Barbour was out of state) and said he saw no evidence to convince him Wade was lying. Bryant made a motion to keep Wade on the ballot and voted aye; Hosemann and Hood voted no.

The arguments by Wade's legal team - due process, Administrative Procedures Law, Department of Justice preclearance - did not faze the SBEC, nor did their strongest play which cited the legislature prescribed an exclusive manner to challenge a candidate's qualifications which the SBEC failed to follow.

Mississippi Code 23-15-963 describes the "Exclusive procedures for contesting qualifications of candidate for general election" stating "[a]ny person desiring to contest the qualifications of another person who has qualified...as a candidate for any office elected at a general election, shall file a petition... not later than thirty-one (31) days after the date of the first primary election...." The law reserved itself as the "sole and only manner in which the qualification of a candidate...may be challenged prior to the time of his election."

The 31-day clock expired Sept. 2, one week before Hosemann raised the issue at the state Election Commission meeting. The statute of limitations had expired - or in football terms-the next play had begun; it was too late to challenge the previous play.

This isn't just my opinion. Attorney General Hood's office issued an opinion in 2005 stating a municipal executive committee could not accept a challenge against a certified primary candidate after the deadline had expired - even if the candidate made material misrepresentations of qualifications. The opinion cited the same Mississippi Supreme Court case Wade's legal team used to argue Wade could not be removed from the ballot after the 31-day clock expired.

Hosemann and Hood responded the state Election Commission had done this before.

Following the vote, Hosemann and Hood decided the Republican Party had (three and a half hours) until 5 p.m. to name a qualified replacement for Wade.

When that time came, the commission reconvened. Sen. Billy Hewes, President Pro Tem of the Senate, presided via speaker phone because Bryant was "incapable of performing said duties" and the Constitutional line of succession went next to Hewes. The commission finalized the ballot and Hosemann said he had not heard from the Republicans about a replacement for Wade. He asked his staff when the ballot had to be distributed the next day and suggested the MSGOP have until morning to name a replacement. Hood objected and noted they had chosen a 5 p.m. deadline. Hosemann acquiesced.

Republican Ole Miss football fans can legitimately blame an administrative action for losing this one, but at least Oxford Democrats will have something to celebrate with their Senate win in November.



Brian Perry is a partner in a public affairs firm. Contact him at reasonablyright@brianperry.ms and follow him @CapstonePerry on Twitter.