Written by: A. Johnson
In November of 2022, the Supreme Court of Mississippi decided James v. Thompson, 2022 WL 16846611, in which it held that campaign material may resemble a ballot so long as it is identifiable as a candidate endorsement list.
The issue arose during the 2016 election campaign cycle. Former-Judge Ceola James was the incumbent for a seat on the Mississippi Court of Appeals; however, she faced opposition from now-Judge Latrice Westbrooks. United States House Representative Bennie Thompson was also running for reelection during the 2016 cycle. As a promotion for candidates favored by the Mississippi Democratic Party, a document patterned after a ballot was made that showed photographs and names of candidates for certain elected positions. The document displayed a disclaimer that it was a “Sample Official Democratic Election Ballot” and the statement, “Paid for by the Friends of Bennie Thompson.” However, the issue arose because this campaign document only displayed Judge Westbrooks’ name and photograph.
Former-Judge James subsequently lost re-election. James then filed suit against Judge Westbrooks and Representative Thompson. James sued Representative Thompson for tortious interference with her job and election. The Supreme Court of Mississippi found this argument unpersuasive because there was no Mississippi law addressing such a claim.
However, the Court’s decision turned on Thompson’s First Amendment right and Article 3, § 13 of the Mississippi Constitution. Without defining any specific parameters, the Court determined that the campaign document was merely a candidate endorsement list and that fashioning it in the form of a ballot was inconsequential because the document clearly noted it was a “sample” and included the disclaimer that it was “paid for by the friends of Bennie Thompson.” Seemingly, the Court is indicating this was sufficient to put the recipient of the document on notice that the document was merely campaign material. Due to the Court’s classification of the document, James’ suit was dismissed pursuant to Mississippi Rule of Civil Procedure 12(c).
Although the Court’s decision seems to protect expressions of political groups, and even individuals, it also poses questions—most notably, how far can people go in formatting advertisements to resemble official government documents?
Throughout its decision, the Court never delineates a clear test for what materials will be considered a candidate endorsement list and what may be considered too extreme of a copy of an official document. Since the document used in the 2016 campaign seemingly proved effective, tactics such as this may be utilized more in the future. However, there are no definitive guidelines to ensure that campaign materials do not cross from clearly a sample and themed document into something more akin to a fraudulent government document.
In making its decision, the Court relies on two disclaimers included on the face of the 2016 campaign document. These disclaimers are typically associated with political ads, but the Court made no comment about where, how large, or what disclaimers will be required to clearly indicate that the intention of the document is to convey the distributing party’s candidate endorsements. In Justice Ishee’s opinion for the Court, he does iterate that political speech is exactly what freedom of speech was intended to protect. But, to acknowledge this and yet ignore the potential harm of allowing campaign materials to resemble official documents is equivalent to living in a vacuum.
The sanctity of official documents is memorialized by certain requirements, such as a seal, to convey the seriousness of the document’s purpose. Allowing a document that is so pivotal to our democratic system to be emulated in endorsing specific candidates may call into question the sanctity of that very document. In the election process, name recognition cannot be understated. Thus, the heavy emphasis on advertising and endorsing candidates is essential. Without putting some parameters in place, future advertisements may begin to even more closely emulate an official ballot. Although the Court’s decision protects an essential right and process of democracy in Mississippi, it allows for more forceful and effective political advertisement to supersede the sanctity of the ballot—sanctity which is quintessential to the democratic process in the United States and the State of Mississippi.