2020 Election Issue: Espy v. Hyde-Smith

2020 Election Issue Espy v. Hyde-Smith, Westbrooks v. Griffis

by Nick Judin

It was an early September evening at a Mike Espy rally perfectly suited for 2020. A sea of cars, not people, clustered below the stage. Espy had yet to arrive. The speech of the hour came from Court of Appeals Judge Latrice Westbrooks, a candidate for the Mississippi Supreme Court.

“Young people ask me: Why should we vote? Why should we care? And I tell them, see what’s happening in our country. Ahmaud Arbery. George Floyd. Jacob Blake. The decisions that are going to be made in those cases are going to be made by elected officials. Whether you vote or not,” Westbrooks exclaimed.

Contained in that speech was all the passion of the moment, the same focused anger that had built all summer long, honed in protests on the street and petitions in the halls of power.

“In Mississippi, your coroner is elected. The coroner is the person who decides whether your death is accidental, a suicide, a homicide ... Your district attorney is elected. Your attorney general is elected. Your judges are elected. Your jury comes from registered voters. That,” Westbrooks finished, “is why you should care.”

On Nov. 3, 2020, from 7 a.m. to 7 p.m., Mississippi heads to the polls.

On the ballot, the presidential election headlines a contest that includes the long-awaited Senate rematch between former U.S. Rep. and Agriculture Secretary Mike Espy and incumbent U.S. Sen. Cindy Hyde-Smith.

In addition, a competitive race for Mississippi’s Supreme Court District 1, which includes the Jackson metro area, pits Court of Appeals Judge Latrice Westbrooks against appointed incumbent Justice Kenny Griffis.

“The only people interested in debates are reporters and losing candidates,” U.S. Sen. Cindy Hyde-Smith said on Oct. 14. She has maintained a consistent strategy of avoiding public scrutiny and most of the press in her 2020 campaign, refusing to debate challenger Mike Espy.

courtesy Cindy Hyde-Smith

The nominally non-partisan judicial election has taken on a distinctly political valence with 2020’s presidential elections looming above.

Rounding out the ballot, voters are faced with three initiatives on a broad range of issues. Initiative Measure 65 would enshrine access to medical marijuana in the state’s constitution, mandating a plan to provide the treatment to qualified Mississippians by August 2021.

An alternative measure, 65A, provides a murky allowance for a medicalmarijuana program with few concrete steps toward its establishment.

House Concurrent Resolution 47 would put an end to the state’s electoralcollege system, which demands candidates for statewide office receive both a majority of the vote and wins in a majority of Mississippi House of Representatives districts.

If adopted, a simple majority of voters would suffice for an election.

House Bill 1796 may return a state flag to Mississippi: one the State Flag Commission selected earlier this year after the old one finally came down. A ring of stars and the words “In God We Trust” encircle a magnolia emblazoned on a red, yellow and blue background.

Espy vs. Hyde-Smith Rematch

After the presidential contest, the rematch between former U.S. Rep Mike Espy and Sen. Cindy Hyde-Smith tops Mississippi’s ballot. With Mississippi polling comfortably in President Donald Trump’s favor, it is the Espy-Hyde-Smith election that may hint at the state’s political future.

Espy, a Democrat and a veteran of the Clinton administration, has run a campaign that has taken on increasing national significance, drawing the endorsements of former President Barack Obama, current presidential candidate Joe Biden and Democratic Rep. Bennie Thompson, a party pillar in Mississippi.

The former U.S. Agriculture secretary has run a different kind of campaign for a Democrat in Mississippi, clearly betting on a larger and more excited voter base. He hasn’t tiptoed around support from Black Democrats like Thompson and Obama, unlike the Jim Hood campaign for governor in 2019, when Democrats would not use an Obama robocall until the night before the election. And during a presidential election year, where Democrats hope to take over the U.S. Senate, Espy raised a remarkable $3.9 million in donations in recent weeks, compared to the incumbent’s $85,000.

Former U.S. Rep. and Agriculture Secretary Mike Espy spoke to the Jackson Free Press about the contrasts between himself and the incumbent he hopes to unseat. “If you don’t campaign, you’re disrespecting your constituency,” he said. “It’s as if you’re taking them for granted.”

courtesy Mike Espy

Hyde-Smith, the Republican incumbent, has chosen a much different strategy, avoiding the public scrutiny that dogged her in the candidates’ first contest in 2018 by simply avoiding non-Republican press, as well as direct confrontations with her opponent. Her focus in campaign ads on “liberals” and national Dems shows an effort to win over white conservative voters in Mississippi for a second victory over Espy with a limited public presence and an endorsement from President Trump, who she proudly supports across the board.

In an Oct. 23 interview with the Jackson Free Press, Espy said Hyde-Smith’s refusal to engage with the press or public debates is an insult to the people of Mississippi. “If you don’t campaign, you’re disrespecting your constituency. It’s as if you’re taking them for granted,” Espy said.

Previously, Hyde-Smith mocked the notion that she should have to participate in a debate with Espy, as if it were beneath her. “The only people interested in debates are reporters and losing candidates,” the senator quipped on Oct. 14. “There’s stark differences between the two of us,” she said the day before. “I don’t know what there is to debate.”

Espy agreed that the differences between the two candidates are striking. “I believe in Medicaid expansion, she doesn’t. I believe in the continuation of the Affordable Care Act, she doesn’t. I believe in coverage for preexisting conditions, she doesn’t,” he said.

Espy’s television ads have portrayed him as a senator for all Mississippians without vilifying conservative voters. Instead, they focus on issues like health care, painting a picture of Hyde-Smith as an ineffective senator who is not passing legislation that helps Mississippians.

Cindy Hyde-Smith’s campaign did not respond to a request for an interview.

The differences between the candidates extend far beyond health care, the banner issue in the Senate contest. The political analysis website fivethirtyeight.com tracks Hyde-Smith’s voting record as 95% aligned with President Trump and 10th among all active U.S. senators.

In his closing argument to the Jackson Free Press, Espy attacked Hyde-Smith’s effectiveness as much as her partisanship, saying she was trying to tout her predecessor’s record as her own.

“She has not passed any bills,” Espy said. “She’s not had any town meetings. She said she passed CHIP (the Children’s Health Insurance Program): that was a lie. That was Thad Cochran. She’s voted 21 times against Mississippi’s citizens by voting against (covering) pre-existing conditions.”

Espy said the consequences to Hyde- Smith’s leadership are an increasingly invisible Mississippi on a national scale. “I was shaving in my house the other day. Hurricane Sally was coming, and I had my ear on the path of the storm,” Espy said. “I heard a national weather forecaster say the hurricane would hit ‘a landmass between Mobile and New Orleans.’ I nearly cut myself. That is a metaphor … Cindy Hyde-Smith is doing it. In two years! How can you not stand before the people? How can you not pass any bills?”

Espy contrasted this with his own record in the U.S. House.

“I’ve already been a congressman where I’ve worked with Republicans. My first bill I passed as a freshman was a major economic-development deal. … Thad Cochran signed on to it, and Ronald Reagan signed it into law. I did that when I was 33 in 1986. There’s no way I’m not going to do that in a more assiduous way (as senator.)”

The challenger, once considered a long shot in a consistently red state, is looking to erase the distance between himself and Hyde-Smith in the polls, leveraging the passive campaign she has run as an incumbent, but also the overwhelming national support he has received since announcing his campaign. He believes he can win.

Experience and Perspective: Westbrooks v. Griffis

A competitive matchup of competing judicial philosophies headlines the state’s Supreme Court races, as Judge Latrice Westbrooks attempts to unseat Justice Kenny Griffis for an eight-year term in District 1, which bisects the state, serving the Jackson metro area and much of the Mississippi Delta.

Both candidates spoke with the Jackson Free Press in Oct. 23 phone interviews, describing their legal and judicial experience, contrasting their philosophies and priorities ahead of the election.

Former Gov. Phil Bryant appointed Griffis in 2019, succeeding Chief Justice William Waller, who would later challenge then Lt. Gov. Tate Reeves for the Republican nomination for governor. Previously, Griffis served as a judge on the Mississippi Court of Appeals from 2003 to 2019, and was selected for the position of chief judge prior to his 2019 appointment.

It’s this experience that Griffis argues is foundational to his bid for a full term on the state’s highest court. “I’ve written 1,000 majority opinions,” Griffis said in the interview. “I’ve got two decades of proven appellate judicial experience.”

Westbrooks’ most recent experience is also at the appellate level. She was elected to the Mississippi Court of Appeals in 2016, after a varied legal career that includes time spent as a private lawyer, a public defender and an assistant district attorney. This diversity of experience, Westbrooks says, puts her in a uniquely qualified position to see where the state’s judicial system can improve.

“Being a prosecutor, being a public defender, that is the best kind of trial experience you can get as an attorney,” she said in the interview. “I’ve been in trenches. I’ve had to present evidence, I’ve had to convince juries. I understand from different perspectives what is required.”

Court of Appeals Judge Latrice Westbrooks says her varied legal and judicial experience makes her an ideal candidate for the Mississippi Supreme Court: “Being a prosecutor, being a public defender, that is the best kind of trial experience you can get as an attorney. I understand from different perspectives what is required.”

courtesy Latrice Westbrooks

In her role on the appellate level, she “can see what’s happening on the trial level … that avails you the opportunity to have that discussion with other judges and justices, to inform them from your perspective.”

But identity and the perspective it brings is also a meaningful issue in the District 1 election. Westbrooks pointed out that only 4 Mississippi Supreme Court justices have been women. If elected, she would be the first Black woman to have ever joined its ranks.

“(Our laws) impact you, impact me… they impact everyone. Representation is critically important. You have representation at the table where decisions are being made. But no one who looks like me is sitting at that table,” Westbrooks said.

Griffis is less interested in the topic. “The issue of race and gender has been brought up, and it’s not been brought up by me. I just believe that this race should be based on our experience and our judicial philosophy,” he said.

Both Westbrooks and Griffis have distinct judicial projects they wish to pursue if elected. For Westbrooks, the right to a fair trial for all criminal defendants demands an expansion of the public defender’s office.

Westbrooks is concerned that most court-appointed public defenders, operating on an hourly basis, lack the ability to determine their own strategy in court. “You have public defenders who are actually appointed by the court, and you have public defenders who are actually salaried and operate as a public defender’s office. And there are only four of those in the state.”

“The public-defender system needs to be able to operate on the same level as the district attorney’s office,” she said, explaining that Mississippi’s public defenders needed more resources to properly hold the state accountable. “The district attorney’s office does not have to go to the court to ask for funds to, (for example) hire an expert. They have a budget they operate out of.”

“But the public defender may go before a judge (for their strategy) who says ‘the DA’s office is not using that type of evidence, so I’m not going to allow you to use that expert.’”

Griffis did not “necessarily agree” with Westbrooks’ plan to expand the public defender’s office, but acknowledged the need for “conversations (on) whether we need to continue with a county-based publicdefender office or move … to statewide or district-based.”

His key issues are the simplification of the state’s judicial rules and technological innovation. “We’ve learned through this COVID crisis that our courts need to be more up to date with technology,” Griffis explained. His plan is to expand digital access to court documents and public accessibility to court hearings.

But in addition to modernizing the judicial system’s digital capabilities, Griffis wants to consolidate many of the rules for the various courts across the state.

“One of the reasons that lawyers have become so expensive and unaffordable for regular people is that we have 23 sets of rules that govern the practice of law. We’ve got different rules for Chancery Court and different rules for Circuit Court and Justice Court. We’ve got so many rules that … some lawyers are driven out of court.”

Mississippi Supreme Court Justice Kenny Griffis boasts decades of experience for his first election to maintain his appointment to the state’s highest court. “I’ve written 1,000 majority opinions,” he told the Jackson Free Press. “I’ve got two decades of proven appellate judicial experience.”

Kenny Griffis

A reduction in attorneys available to practice in distinct areas of the law drives up the price of those services, Griffis said: “We’ve got to take these 23 sets of rules and update those. We’ve got to reduce the sheer volume of those rules.”

While judicial elections in Mississippi are non-partisan, there are distinctly political overtones to the Westbrooks-Griffis race. Griffis’ campaign ads tout him as a “constitutional conservative,” and the justice has acquired the endorsements of Republicans like Phil Bryant, Delbert Hosemann and Michael Guest.

Westbrooks has appeared at campaign rallies with former Rep. Mike Espy and drawn endorsements from key Democratic figures, including U.S. Congressman Bennie Thompson.

Initiative 65: Medical Marijuana

Mississippi’s most contentious ballot initiative is also its most complex: Initiative Measure No. 65 is a ballot measure that proposes two separate plans for creating a medical-marijuana program for Mississippi.

Initiative 65 is the original measure, which amends the state constitution to direct the Mississippi State Department of Health to establish a medical-marijuana program by August 2021. From that point forward, Mississippians suffering from 22 different “debilitating medical conditions,” including glaucoma, sickle-cell anemia, post-traumatic stress disorder, epilepsy and more, would be eligible to acquire up to 2.5 ounces of marijuana with a certification from a Mississippi-licensed physician.

Initiative 65A, which Rep. Trey Lamar, R-Senatobia, added to the ballot in early March with House Concurrent Resolution 39, is the legislative counteroffer. If 65A passes, the Legislature will be tasked with creating a medical-marijuana program at a later date limited solely to individuals with terminal medical conditions.

U.S. Senate candidate Mike Espy supports Initiative 65, telling the Jackson Free Press that “I encourage everyone to vote for 65. It alleviates suffering. From what I’m reading, this is a possible source of relief for those who need it.”

Joining Espy in supporting the initiative is Antonia Eliason, a law professor at the University of Mississippi and a candidate for the U.S. House of Representatives in Mississippi’s 1st congressional district. Eliason said in an Oct. 26 interview that Initiative 65 is “extremely well-thought out and crafted,” a measure necessary to provide suffering Mississippians with treatments for chronic illnesses previously banned.

U.S. Sen. Cindy Hyde-Smith opposes Initiative 65, on the grounds that expanded access to medical marijuana should be “something the Legislature can control,” as she told WJTV in October.

The Mississippi State Department of Health and the Mississippi State Medical Association also oppose Initiative 65, pushing instead for Mississippians to adopt the alternative measure. State Health Officer Dr. Thomas Dobbs shared his fears in a MSMA press release that “Initiative 65 would inappropriately require us to divert already-limited resources for the benefit of an incredibly complicated industry.”

Dr. Jennifer Bryan, chairwoman of the MSMA board of trustees, told the Jackson Free Press in an Oct. 26 interview that Initiative 65 lacks the “guard rails” necessary to protect Mississippians. For Bryan, the certification 65 provides patients is too broad. “The doctor has no say over the patient walking into a dispensary and getting joints to smoke, or gummy bears, or whatever form of medical marijuana they want,” she said.

Furthermore, she worries that the tax revenue from medical marijuana, which 65 diverts entirely to pay for the program itself, includes no money for public-health initiatives.

Eliason, however, sees 65A as a ruse meant to delay access to medical marijuana indefinitely. “The reality is if Initiative 65A passes, there’s not going to be any medical marijuana, because they’re going to find ways to stymie it—they’ve done it for decades.”

Eliason, who teaches contract law at the University of Mississippi, called 65A a textbook example of an illusory promise. Bryan agreed that the stipulations of 65A were extremely vague, but said that was a positive. “The lack of specificity is there because (then) we could write something that makes sense when we get input from physicians and health leaders.”

The concerns over tax revenues, Eliason says, are misguided. “This program is paying for itself. You can’t have it both ways,” Eliason said.

“This is medical marijuana: it’s really limited. If we were talking about recreational marijuana, then I would definitely want to see some tax revenue coming back in.”

Most opponents of Initiative 65, even those who prefer the alternative measure, call for a “no” vote on both measures. Voters supporting the push for a concrete roadmap to medical marijuana in the state must vote “for approval of either” in the first box and “Initiative 65” in the second.

House Concurrent Resolution 47: Ending State Electoral College

Mississippi’s own version of the electoral college is a relic of its racist 1890 constitution, which sets up two necessary requirements for candidates seeking election to statewide office including governor: a majority of votes as well as victory in a majority of House of Representative districts, of which there are 122.

House Concurrent Resolution 47, authored by Rep. Charles Jim Beckett, R-Bruce, removes that second requirement entirely, meaning candidates for statewide office in Mississippi can win with a simple majority of votes.

The 1890 constitution, drafted in the wake of Reconstruction and years of sanctioned white violence in reaction to the post-Civil War enfranchisement of Mississippi’s Black population, included provisions of the district requirements for statewide elections as well as a raft of other restrictions intended to, in the words of Mississippi Gov. James K. Vardaman, “eliminate the n****r from politics.” The new restrictions, as well as a sustained campaign of racist intimidation, violence and murder successfully disenfranchised Black Mississippians until the 1960s era.

In an interview with the Jackson Free Press, candidate Mike Espy shared his support for H.C. 47, calling the state’s electoral college system “crazy.” “That’s a facet of the 1890 constitution. That should’ve been gone 20 or 30 years ago,” he said. If HCR 47 succeeds at the ballot in November, it will be.

New Magnolia Flag on Ballot

Four years after the adoption of the 1890 constitution, the Mississippi Legislature adopted a new state flag, replacing the earlier Magnolia tree. The blue, white and red tricolor included a prominent Confederate saltire, the “southern cross” from Robert E. Lee’s Army of Northern Virginia—the flag that became the symbol of the “lost cause” of the Confederacy in the South after the war.

Over a century later, increasing opposition to the state flag’s Confederate imagery remained a key issue in popular protests erupting in response to police brutality and systemic racism in Mississippi and across the nation.

In June, following the police killing of George Floyd in Minneapolis, Minn., Mississippians gathered in front of the governor’s mansion to demand a new social contract, one without the Confederate nostalgia that suffused so much of the state’s official imagery. Speakers from Black Lives Matter Mississippi called for a change in the state flag, and protesters shouted for change at the Confederate flag hanging above the capitol.

Less than a month later, that change arrived. The Mississippi Legislature cobbled together a supermajority capable of suspending the rules—late in the extended session—and adopting a bill to remove the state flag, establishing a committee to collect designs for a new one.

The design contest selected a flag put designed by Mississippians Rocky Vaughan, Sue Anna Joe and Kara Giles, with a magnolia bloom as the focal point on a field of blue, red and bronze. The flag bears the words “In God We Trust,” an inclusion mandated in the bill that established the flag commission.

If Mississippians vote to accept the new state design, it will end the long saga of the state’s Confederate flag. If they reject it, the flag commission will begin the process anew, gathering input from Mississippians to put on the ballot next year.

Email state reporter Nick Judin at nick@ jacksonfreepress.com.