Orders Contest Be Near Top of Ballot as Per State Law; Governor Barbour Vows to Appeal
An Update on the Mississippi Sample Ballot Fiasco...
By Steve Heller on 9/13/2008, 7:29pm PT  

Guest Blogged by Steve Heller of VelvetRevolution's Election Protection Strike Force...

On Friday, Judge Tomi Green of the Hind County, Mississippi, circuit court issued an order [7 page pdf] pertaining to the case of Trudy Berger, et al. vs Governor Haley Barbour and Secretary of State Delbert Hosemann. For background on this case, see our coverage from Thursday, but in brief, Barbour and Hosemann recently issued a sample ballot for the upcoming general election, as required by state law. They buried the special election for Senator Trent Lott's (R) old seat --- between former Mississippi governor Ronnie Musgrove (D) and Roger Wicker (R) --- at the very bottom of the ballot, even though state law requires that races for federal office must be at the top of the ballot.

Despite the clear state law, Barbour and Hosemann claimed that, because this was a special election, it should go at the bottom of the ballot. We believe it was an attempt on their part to "hide" the race, because while Wicker is slightly ahead in the polls currently, he is thought to be vulnerable and Musgrove, a popular former governor, may well unseat Wicker (who was temporarily appointed by Barbour to fill Lott's seat following his resignation at the beginning of the year.)

In Judge Green's ruling, she ordered the Governor and Secretary of State to follow the law. She ordered that the Musgrove/Wicker race must be near the top of the ballot with the other federal races. She found that because the Musgrove/Wicker race is a special election, it should be indicated as such not by placing it at the bottom of the ballot, but that it "must be accomplished by simply bold typing 'SPECIAL ELECTION' as a 'header' above the title of the office sought."

Barbour has announced he will appeal the decision...

Of note is a letter [2 page pdf] that the Brennan Center for Justice sent to the Governor, Sec. of State, and Attorney General of Mississippi. The letter was released by the Attorney General Jim Hood, and reads in part:

In Better Ballots [a report by The Brennan Center] we found that placement of a contest on a ballot has a tremendous impact on whether voters' choices are accurately recorded. When a contest is not placed where voters expect it to be placed, most voters are more likely to make errors --- and in particular, to miss the contest altogether. ... In general, the further down on a ballot a contest is placed, the less likely voters are to vote on it.

[W]e strongly urge you to reverse your decision and place the Wicker-Musgrove race on the same portion of the ballot as all other federal contests.

UPDATE 9/18/08: The largely-Republican Mississippi Supreme Court has issued their decision. They have interpreted state law as requiring that the senate race be at the top of the ballot with the other federal races, but they have declined to order Barbour and Hosemann to obey the law. Wrote Justice Jess Dickinson:

"We find that the special election for U.S. Senator must be listed in the first category of the ballot, along with all other national elections, and the law assumes the governor and secretary of state will follow the law.

"The Circuit Judge exceeded her authority, however, by ordering the Governor and Secretary of State to prepare the ballot in a particular manner, and to take other actions with respect to the upcoming election.

The Governor and Secretary of State must be allowed to attend to their constitutional duties, free of interference by way of mandamus, injunction or instruction. Of course, once the Governor and Secretary of State act, their decisions and actions are then subject to judicial review."

In a somewhat snarky dissent by Justice Oliver Diaz, he called the ruling "little more than a dressed-up request" for the governor to follow the law.

This is my favorite part of Diaz's dissent: "Given the governor's recent success at convincing seven members of the Court that a year is sometimes not a year ... one cannot fault him for daring to return to our chamber and insisting that the top is sometimes not the top."

According to Barbour's spokesman Pete Smith, the governor will comply with the ruling. And Hosemann's office said they are "working to comply" with the ruling.

Here's the decision [12 page PDF].