Published: December 29, 2007 11:45 pm            

Barbour oversteps his bounds

Governor Haley Barbour apparently believes that Mississippians are stupid, that he is not bound by Mississippi law, or all of the above. In a December 20 release on his website, Governor Barbour claims the U.S. Constitution empowers him postpone the election to fill the vacancy created by Senator Trent Lott’s resignation until November 4, 2008. According to Governor Barbour:

"The Seventeenth Amendment to the Constitution of the United States provides that when a vacancy happens in the representation of any State in the United States Senate, the executive authority of such State shall issue a writ of election to fill such vacancy."

There are two problems with this position:

(1) It directly contradicts what is specified in the Section 23-15-855 of the Mississippi Code; and,

(2) Section 2 of the Seventeenth Amendment requires the governor to abide by state law.

Section 23-15-855 of the Mississippi Code is clear on what should happen upon the event of a U.S. Senate vacancy: The governor has to set an election date within ten days of being notified of the Senate vacancy and he shall appoint someone to fill the seat until that election is held. Here is section 23-15-855, verbatim:

"(1) If a vacancy shall occur in the office of United States Senator from Mississippi by death, resignation or otherwise, the Governor shall, within ten (10) days after receiving official notice of such vacancy, issue his proclamation for an election to be held in the state to elect a Senator to fill such unexpired term as may remain, provided the unexpired term is more than twelve (12) months and the election shall be held within ninety (90) days from the time the proclamation is issued and the returns of such election shall be certified to the Governor in the manner set out above for regular elections, 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, and the vacancy shall be filled by appointment as hereinafter provided.

(2) In case of a vacancy in the office of United States Senator, the Governor may appoint a Senator to fill such vacancy temporarily, and if the United States Senate be in session at the time the vacancy occurs the Governor shall appoint a Senator within ten (10) days after receiving official notice thereof, and the Senator so appointed shall serve until his successor is elected and commissioned as provided for in subsection (1) of this section, provided that such unexpired term as he may be appointed to fill shall be for a longer time than one (1) year, but if for a shorter time than one (1) year he shall serve for the full time of the unexpired term and no special election shall be called by the Governor but his successor shall be elected at the regular election."

This section of the law specifically states that the governor, within 10 days of being notified of a U.S. Senate vacancy must call a special election within 90 days if the vacancy does not occur within a calendar year with a general or congressional election and if the unexpired term is greater than twelve months. Lott's resignation from the U.S. Senate is indeed effective in calendar year 2007, not 2008, and the remainder of his term is approximately 60 months, therefore, the governor is not allowed to wait until the November 2008 election. He must call a special election within 90 days and he is empowered to appoint someone to fill the vacancy until the special election determines a new Senator. Now some, particularly Republicans, can argue that, because calendar year 2007 contained a general election, Governor Barbour can wait until November 2008. This is absolute nonsense given Lott’s resignation became effective this past Tuesday, AFTER the 2007 elections, and (unless Republicans can provide a time-machine or make Senator Lott’s resignation retroactive) should be dismissed out-of-hand.

The other objection to Governor Barbour’s reasoning is more interesting, if anything, for its chutzpah. Here is the complete text of Section 2 of the Seventeenth Amendment to the United States Constitution:

"Section 2. When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

The Seventeenth Amendment deals with the elections of U.S. Senators (prior to ratification in 1913, Senators were not directly elected by the people). Note that Section 2 specifically states that the executives of the States are empowered to make temporary appointments to fill Senate vacancies until an election as directed by their respective State legislatures. It does not empower him to call an election whensoever he wishes. It is curious that Governor Barbour avoids any mention of this portion of Section 2 on his website and why he thinks he should get a pass on this is incomprehensible to me.

While it is always dangerous to presume to know someone’s motives, I think it is safe to say Governor Barbour’s "interpretation" of the law is a transparent and calculated maneuver to ensure a Republican appointee to the U.S. Senate gets to enjoy nearly a year’s worth of incumbency, gaining a great deal of statewide name recognition not to mention accumulating a sizable campaign fund. It would also have the advantage of minimizing the possibility of the seat going to a Democratic candidate when the election is held.

Attorney General Jim Hood has released an legal opinion which is in direct contradiction to Governor Barbour’s and is in keeping with Section 23-15-855. I encourage all Mississippians to contact the Attorney General, supporting his effort to uphold Mississippi law.

        

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