JACKSON – A federal magistrate is considering motions to dismiss a lawsuit filed by five House District 79 voters, claiming their rights were trampled when the Mississippi House seated Republican Mark Tullos.

Billie Faye Keys, Joshua Allen, Courtney Rena Fortune, Karli Ford Matthews and Shelton S. Matthews – all of Smith County – sued March 30 claiming Speaker Philip Gunn, Reps. Mark Baker, Richard Bennett, Charles Jim Beckett, Bill Denny and the Mississippi House deprived them of their constitutional right to vote and equal protection under the law.

The lawsuit stems from the Nov. 3, 2015, general election contest for state representative from District 79, composed of Smith County and a part of Jasper County.

On Tuesday, Magistrate Judge Linda Anderson ordered proceedings to halt until the court rules on three defense dismissal motions, also filed Tuesday, including claims about legislative immunity from prosecution and whether a federal court has the authority to resolve election contests for the Legislature.

Election-night results showed that incumbent Rep. Blaine “Bo” Eaton, a Democrat, and Mark Tullos, a Republican, had the same number of votes. State law requires the winner to be determined “by lot, fairly and publicly drawn.” Eaton won a coin toss, was declared the winner and took his seat when the Legislature convened in January.

However, Tullos had petitioned the House to decide the election. A special committee appointed by Gunn held hearings and recommended that Tullos be seated instead. Although the local election committee counted a number of ballots cast as affadavits because voters had moved and failed to update their addesses, the House committee did not count all of the affidavits in seating Tullos.

The five complainants, all qualified Smith County electors, say they voted for Eaton by affidavit ballot and are asking if their votes were counted.

The case is assigned to U.S. District Judge Carlton Reeves.

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