Dispute Over Election to Replace Lott Could Wind Up in Court

Posted November 27, 2007 at 1:56pm

Sen. Trent Lott’s (R-Miss.) decision to resign by year’s end has sparked a partisan disagreement that could lead to a legal battle over his succession, with Democrats and Republicans now arguing over when the special election to replace him should be held.

Gov. Haley Barbour (R) has called the contest for Nov. 4, 2008, the date of the next regularly scheduled general election. But Democrats — in particular Mississippi Attorney General Jim Hood — contend that state law requires the special election to be held 100 days after Lott resigns, should the Senator stick with his stated plan to relinquish his seat by Dec. 31.

Hood is not ruling out legal action.

“We will decide what to do if and when it becomes necessary,” Hood said in a statement provided to Roll Call on Tuesday, in response to an inquiry about whether he plans to sue Barbour to change the election date. “We fully expect the governor will follow the law.”

The dispute has political significance because political insiders believe that Democrats have a better chance of winning Lott’s seat if the special election is held in March. If it coincides with the November presidential election, Republicans will have a much greater advantage, because the GOP White House nominee is expected to win the state handily.

Barbour’s office insists that the state law governing this matter, Section 23-15-855, allows the governor to call the special election to replace Lott for Nov. 4. Mississippi Secretary of State Eric Clark, a Democrat who administers elections in the Magnolia State, is backing Barbour’s interpretation of the law.

The portion of the statute in dispute reads: “… the election shall be held within (90) days from the time the proclamation is issued … unless the vacancy shall occur in a year that there shall be held a general state or congressional election, in which event the Governor’s proclamation shall designate the general election day as the time for electing a Senator … .”

Kell Smith, a spokesman for Clark, said that since there was a statewide general election (for governor and other state offices) this year, Barbour is entitled under the law to call the special election to replace Lott for Nov. 4. Although Smith did not say as much, it appears Barbour’s interpretation could center around the fact that he would be required to call the special election for 90 days out if Lott resigned in a year where no statewide general election was held.

Barbour’s office on Tuesday stood by its legal position, as well as its proclamation calling the special election for Nov. 4. Barbour spokesman Buddy Bynum declined to elaborate on the governor’s thinking, saying only that his boss was standing by the statement he issued on Monday.

In part, that statement read:

“Pursuant to Mississippi law, specifically § 23-15-855 (1), of the Mississippi Code, once the resignation takes effect, I will call a Special Election for United States Senator to be held on November 4, 2008, being the regular general election day for the 2008 congressional elections.”

Politically, Republicans would appear to benefit from holding the special election on Nov. 4.

Among the factors working for them under such a scenario are that Barbour’s appointed replacement for Lott would get to run as an incumbent.

Also, Nov. 4 is the same day as the presidential contest, and that is likely to boost Republican turnout. A special election held in 90 days would be more unpredictable on almost every front, especially because the contest is a special open primary, where the two top votegetters advance to a runoff, regardless of party affiliation, should the winner fail to exceed 50 percent of the vote.

Democrats declined to commit to legal action if Lott does in fact resign this year and Barbour sticks to Nov. 4 as the special election date. But they indicated that it could be forthcoming.

If they do file suit, recent history suggests that they could be successful.

Last year, Democrats stymied Republicans in Texas’ 22nd Congressional district, when a lawsuit they brought to stop the GOP from replacing former Rep. Tom DeLay (R) on the ballot was ultimately successful in a federal court.

Texas election law appeared to give DeLay — who resigned from office after winning the March 2006 GOP primary — the right to withdraw his name from the ballot and allow the Texas Republican Party to appoint a replacement candidate. But because of the suit brought by the Texas Democratic Party, DeLay’s name was removed from the ballot and the GOP was forced to back a write-in candidate because it was not allowed to designate a replacement.

Consequently, the Democratic nominee — now-Rep. Nick Lampson — ended up winning the Republican-leaning, suburban Houston district.

Lott could prevent the whole controversy by resigning in January instead of before the end of this year because then the election to replace him would automatically take place next November. But if he waited until January to resign, he would have to wait two years before he could begin lobbying Congress. If he steps down before Jan. 1, he would only have to wait one year.