Mississippi Politics Burning

Insiders Can’t Predict Which Way State’s Top Court Will Rule on Fight Over Election Date

Posted January 22, 2008 at 6:34pm

Now that Mississippi Gov. Haley Barbour (R) has appealed a lower court ruling, the Magnolia State’s Supreme Court will be responsible for deciding when a special election will be held to fill the remaining years of former Sen. Trent Lott’s (R) term.

Chief Justice James Smith has agreed to a request for an expedited hearing in the case, which required final motions to be filed on Tuesday and set the stage for a ruling to come possibly within the week.

Barbour has scheduled the special election to be held on the same day as the November general election, while Democratic state Attorney General Jim Hood has argued that the state constitution requires that the election be held in mid-March.

At stake is more than a simple court decision on what all parties have agreed is a poorly written election statute. State and national political observers say the outcome of the case will give one party a key advantage in the coming special election battle between new Sen. Roger Wicker (R) and one of two Democrats.

Mississippi political insiders seem to also agree that while the nine-member state Supreme Court is generally conservative, trying to guess how the the justices will vote would be easier for, say, a business or tort reform case than the current election law quandary.

But that’s not to say that judicial nose counting isn’t going on.

Although they run in nonpartisan contests, Mississippi Supreme Court justices are elected to their posts for eight-year terms. When midterm vacancies occur, the governor is responsible for making appointments.

The two least senior justices on the court were appointed by Barbour.

But three other current justices were appointed by former Gov. Ronnie Musgrove (D), who is running in the special election to replace Lott. One Republican strategist acknowledged that there is widespread speculation that some of the justices who were appointed by Musgrove will be anti-Barbour votes.

Meanwhile, some Democrats aren’t expecting Chief Justice Smith — who is a former prosecuting attorney for Rankin County, a conservative stronghold — to rule against Barbour. But Democrats are a bit more optimistic about Presiding Justice William Waller, the eldest son of former Democratic Gov. Bill Waller.

“The fact that this is an issue at all illustrates how partisan state supreme courts generally have become and how they end up oftentimes in the middle of a game of political football,” said Jesse Rutledge, deputy director of Justice at Stake, a Washington, D.C.-based nonprofit working to keep American courts free from political influence. “It will be interesting to see in the end how votes break down, and you certainly hope they don’t break down along strictly party lines or by perceived ideological lines. You certainly hope that all members of the court are ruling according to the facts and the law of the case and the state constitution.”

Ronald Rychlak, associate dean of the University of Mississippi School of Law, said Tuesday that trying to gauge the justices’ votes from past or present political ties would be an imprecise exercise when it comes to Mississippi’s highest court.

“My impression of the judicial system in Mississippi is that they try to bend over backwards to try to follow federal guidelines,” Rychlak said. “We have a history from the ’60s and ’70s that no one wants to see repeated. So they are very careful about trying to be as accurate and just as possible to minorities in particular but to all sides.”

He added that the current case is especially hard to predict because most recent election law issues that have gone before the court have related to redistricting plans or other federal regulations.

“But this is such a weird case,” Rychlak said. “The words of the [state] Constitution seem to indicate one thing and the intent another.”

Hood’s original complaint over Barbour’s election plan was upheld by a Hinds County Circuit Court last week, which led to the governor filing an appeal to the state Supreme Court on Friday.

Barbour’s office said afterward that the lower court ruling was not a surprise.

“We’ve said from the beginning that ultimately the Supreme Court is going to make the decision in this case,” said Barbour’s press secretary, Pete Smith.

Mississippi election law states that after the governor receives an official notice of a Senate vacancy, he has 10 days to announce an election to fill the seat. The election must then be held within 90 days of the announcement, unless the vacancy occurs during a year when “there shall be held a general state or Congressional election.”

Hood’s reading of the law would force the governor to hold a special election within three months, an argument that is being strongly supported by the state Democratic Party.

Barbour has called the statute poorly written, but he said his plan follows the law.

Legal opinion aside, political analysts have speculated that an earlier special election could help the Democratic candidate — Musgrove is competing for the nomination with ex-Rep. Ronnie Shows — because it would allow less time for Wicker, who was appointed by Barbour to hold the seat in the interim, to solidify his position in the Senate.

Democrats also may be at a disadvantage if the special election is included on the same ballot as the presidential election in November, when the Republican nominee is expected to win in Mississippi.

There may be a federal appeal angle open to Hood if the state Supreme Court overrules the circuit court decision, but the attorney general seemed to indicate Tuesday that he does not intend to take the case to that level.

“The suit does raise a federal constitution question; however, we anticipate the Mississippi Supreme Court will make the final determination in the case,” Hood said.