Mississippi Ballot Chronicles

Color me surprised. Late Thursday, the Mississippi Supreme Court issued a surprise decision in finding that Governor Haley Barbour's placement of the special U.S. Senate election at the bottom of the ballot was unlawful. We were not alone here in being fairly confident that the state high court would side with Barbour, as much of its composition was appointed by the governor, and it had already sided it with him earlier in the year in allowing the race to be held in November, as opposed to April which appeared to be required by Mississippi law.

The decision was an interesting specimen in the art of legal and political gymnastics. The court made two salient holdings. First, the justices found 8-to-1 that the movement of the special election to the bottom of the ballot, after many state and local races, ran afoul of a state law which required that any races for federal office (President, Senate, House), had to appear at the top of the election ballot. However, the court also ruled 5-to-3 that the lower circuit's order that the race be moved up to the top of the ballot was unlawful, and dissolved the edict. The supreme court reasoned that the order encroached on the governor's authority, and that the judicial branch cannot compel the executive to do his job in a specific manner. The court reasoned that the governor would have to act illegally before a court could order him to act otherwise. This finding was quizzical since the whole point of the lawsuit was that Barbour had already ordered the ballot to be designed in a manner contrary to law, and that the lower court's order was a means to remedy that.

Clearly, the court was trying to balance between making a proper interpretation of the ballot statute, while at the same time laboring hard not to order Barbour to do anything proactive that was not predisposed to do on his own. This line of reasoning and action drew the ire of a dissent which noted that Barbour could still force through the same ballot, as the court's opinion had not actually ordered him to change the ballot. Some liberal bloggers immediately opined that Barbour would do just that, but shortly after the decision was issued, Barbour's spokesman announced that he would comply with the court's reading of the statute, and re-draw the ballot in such a way to put the special Senate election near the top with the other federal races.

It is difficult to say what the exact impact of this decision is; though it is probably at least a tiny bit helpful to Ronnie Musgrove. It is likely that the lower the race fell on the ballot, the less people would vote in the special election. Many of these voters could well have been new to the process, or individuals who do not generally cast ballots. My personal feeling is that these voters, many of them less affluent or educated, would be more likely to vote Democratic. So, in that sense, I would guess that this decision will help Musgrove more than it will help Roger Wicker. As we have posted before, in a race that should be really close, that little difference could be a big help to the Democrat.

One other even thing. Even though he lost, and I disagree with his actions and his personal politics, let me again tip my hat to Governor Barbour. Here is a shrewd political operator, and a guy who really knows how to play hardball to get what he wants.