The battle over the Nov. 4 ballot was taken to Mississippi's highest court Wednesday to decide where Wicker-Musgrove U.S. Senate race should appear.
Historically, the state marks special elections by placing them at the bottom of the ballot, when held at the same time as a regular election.
But a 2000 state legislative change to the law made that obsolete, according to Attorney General Jim Hood.
The same arguments came to a different court Wednesday. Gov. Haley Barbour and Secretary of State Delbert Hosemann appealed circuit court judge Tomie Green's ruling to put the Senate race with other federal races to the Mississippi Supreme Court.
Barbour and Hosemann say they believe current state law does not address placement of special election races on regular election ballots. In those cases, the governor should use his best judgment.
"Nowhere at any time during the supreme court discussion today did they indicate that we did not follow the current law and the governor did not make the right decision," said Hosemann.
However, Attorney General Jim Hood said a change to the law in 2000 puts races in the order they are to appear on a ballot, no matter what kind of election.
"The governor taking a position that will reduce the vote by as much as a third, based on Stennis Institute studies, ought to be ashamed of himself for placing it at the bottom of the ballot," said Hood.
Hosemann's number disputes Hood's. Hosemann said during the last general election there was a less than two percent drop-off from top to bottom of the ballot.
"This is a blatant attack on Mississippi voters; that's what this is right here," said Hosemann. "They're claiming Mississippi voters are not competent enough to cast an entire ballot."
Hood said he believes more suits are to follow if the court rules in favor of the governor and secretary of state.
"It will be a change in voting and it will be required to be submitted to the Justice Department for pre-clearance," said Hood. "So hopefully the court will get us out of this litigation and quit wasting money on lawyers. Let's have a full and fair election."
The supreme court did not give a timetable of when it might rule. Hosemann said he's concerned about a possible delay in absentee voting, scheduled to start Sept. 22.