Green Rules Against Ballot ‘Ball of Confusion’

Courtesy FEMA

Gov. Haley Barbour
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by Ward Schaefer
Sept. 12, 2008

*See update in comments

Hinds County Circuit Court Judge Tomie Green heard arguments Thursday on a preliminary injunction against the distribution of a November ballot that would place the U.S. Senate race between Roger Wicker and Ronnie Musgrove near the bottom. Green denied a last-minute motion to dismiss by Gov. Haley Barbour and Secretary of State Delbert Hosemann. Green will likely rule later today.

Pike County Election Commissioner Trudy Berger filed suit against Barbour and Hosemann on Tuesday, after Barbour approved a sample ballot listing the high-profile Wicker-Musgrove race below candidates for local school boards. Her complaint argues that the ballot violates a Mississippi state law requiring candidates for federal office to appear first. Berger asks that the court enjoin the governor and secretary of state from issuing a ballot that does not list the senate race in this first position. The same day, Green granted a temporary restraining order on the distribution of the ballots.

Wednesday, Gov. Barbour petitioned the Mississippi Supreme Court to throw out the entire suit. No state court can issue a prohibition or injunction against the executive office, the governor argued. He went on to suggest that listing the Wicker-Musgrove special election as Berger requested would constitute a change in voting procedure. Such changes must be submitted to the U.S. Department of Justice for approval. Since Berger had not submitted her proposal to the DOJ, listing the senate race at the top of the ballot would be a violation of the federal Voting Rights Act.

Three justices, William Waller, George Carlson and Mike Randolph, gave Barbour part of his request. They overturned Green’s temporary restraining order on procedural grounds, but they left the merits of Berger’s suit for the lower court to decide. With the restraining order lifted, Hosemann distributed the sample ballots late Wednesday night, officially starting the election process.

That gave John Henegan, attorney for Barbour and Hosemann, an additional argument in presenting the motion to dismiss Thursday afternoon. The court cannot, Henegan argued, prohibit an action related to an ongoing election process, making Berger’s request moot. Green nevertheless denied the defendants’ motion.

Henegan maintained that state law was “silent” on the issue of where a special election for the U.S. Senate should appear on the ballot. Historically, he said, special elections have always appeared at the bottom of the ballot. Green pointed out, however, that the most recent special election for U.S. Congress took place in 1981, well before any of the elections Henegan had cited as evidence.

“There evidently is something else going on where you want to take a senatorial race and put it at the back of the ballot,” Green told Henegan.

Green appeared to grow exasperated as Henegan repeated Barbour’s argument that the court has no subject matter jurisdiction to issue an injunction against the governor or secretary of state.

“All matters of governors and secretaries of state are subject to judicial review,” she responded.

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