Jackson Free Press

By the time the legislative session ended in early May, lawmakers had passed two controversial bills that are likely to result in expensive legal battles. One requires doctors performing abortions to have admitting privileges at local hospitals and be certified obstetrician-gynecologists, and another formally adopts the voter-identification constitutional amendment passed last fall.

Because Republicans have stated publicly that their aim with the abortion law was to close the state's only abortion clinic and effectively end the practice in the state, reproductive-rights activists in Mississippi might challenge the law on the grounds that it violates women's federally and state-protected right to have an abortion.

Similarly, the voter ID law drew fire from such civil rights groups for its possible effect on historically disenfranchised voters. Certain that voter ID will result in costly litigation, the Legislature appropriated $495,000 Mississippi Secretary of State Delbert Hosemann's officer for voter ID litigation. Hosemann said his office is required to defend against any lawsuits that might come about as a result of the law's implementation.

But the passage of what its Republican sponsors dubbed the Attorney General Sunshine Act further complicates voter ID and abortion litigation and all future lawsuits involving the state.

The legislation, which Gov. Phil Bryant signed May 22, empowers state agencies, boards and commissions to hire their own attorneys if the agency believes a conflict of interest exists with the attorney general, which usually represents the state in legal matters.

Matt Steffey, a constitutional law professor at Mississippi College School of Law, said giving agency heads the option to bypass the state's top lawyer might have negative and unintended consequences for taxpayers.

"(M)any of the abortion laws that the Legislature likes to pass, they're blatantly unconstitutional. I don't know how much sense it makes for taxpayers to put up for laws or portions of laws that every observer thinks will get struck down," Steffey said.

The experience of other states that passed abortion regulations demonstrate how costly the fights can be. Kansas spent $400,000 over a six-month period in 2011 defending abortion restrictions; more than half that sum went to pay private attorneys. Two anti-abortion laws in South Dakota over a 10-year period resulted in $623,000 in payments to Planned Parenthood, the plaintiff in both cases. South Dakota also passed a law requiring a three-day waiting period for an abortion in March 2011, which triggered a lawsuit that the state's Legislative Research Council estimated could cost as much as $4 million to fight.

As essentially the state's largest law firm, the AG's office is more equipped to evaluate lawsuits' chances for success than agency heads, Steffey said. That's also Mississippi Attorney General Jim Hood's argument. Testifying at a committee hearing in February, Hood estimated the proposal would cost taxpayers $11 million extra per year based on the $65 per hour his office bills agencies and the average of $130 per hour that private firms charge.

Hood cited an example of the Mississippi Department of Revenue wanting to settle a case against WorldCom over back taxes for $3 million before his office got involved and recouped $100 million for the state. Republicans rebuffed Hood's argument arguing the agencies have an incentive to keep costs down because the money would come out of their budgets.

Few people dispute that the attorney general law is the result of long-simmering feuds between Republicans and the last two Democratic attorneys general: Hood and his predecessor, Mike Moore. Since Hood took office in 2004, he has routinely irritated business-friendly Republicans for suing big corporations such as oil-giant BP over its Gulf oil spill claims process and large insurers in the wake of Hurricane Katrina. More recently, he declined to challenge the constitutionality of the federal Affordable Care Act but did challenge the legality of the 200-plus pardons and commutations that former Republican Gov. Haley Barbour granted before leaving office. 

In that most state governors and their AGs are in ideological lockstep--only eight states have a governor and attorney general from opposing political parties--Mississippi's situation is unique, especially among Southern states that have tried to pass voter ID laws.

President Barack Obama's Justice Department already stepped in to block voter ID laws in Texas and South Carolina, each with a Republican governor and attorney general. Those states are also learning how expensive it is to defend the laws in court. South Carolina's voter ID law could cost taxpayers $1 million based on a rate of $520 per hour, according to a report in the Post and Courier newspaper. That amount doubles the $500,000 sum allocated to South Carolina Attorney General Alan Wilson for voter ID litigation.

In addition to the lawsuit is the cost to issue free IDs to anyone who needs them, which the Mississippi law proposes to do. In Missouri, a fiscal note on a proposed voter ID law there estimated the law would cost $6 million during its first year. Indiana's 2005 voter ID law cost more than $1.3 million, according to the Brennan Center for Justice at New York University School of Law.

Then there are the hidden costs, explains Mississippi American Civil Liberties Union legal director Bear Atwood: "'Free' presumes that somebody has the ability to get to where they need to go to get that ID, and for a lot of the people who may be most affected by this--older people, people living in poverty--they might not have the transportation to go wherever they need to go."

She said it's unfortunate that Hosemann's budget includes a line item for litigation but not additional funding to train poll workers on the new voter ID law.

"The reality is even if they reach every single person that needed an ID and made it completely and totally free, given Mississippi's history of people being killed for trying to vote, there's still an incredible chilling effect that is going to keep some people from voting," Atwood said.

Hosemann told reporters at the bill signing that he hoped to hear from the feds by July on whether Mississippi's voter ID law would stand. July 1 is also when the attorney general sunshine law would become effective. Earlier this year, Hood suggested that he would ask the courts to keep that from happening.

At a press conference about the Mississippi State Supreme Court's validation of Barbour's pardons saying the court didn't have the right to interfere with the powers of the co-equal executive branch, Hood said he hoped the court would show him the same deference they gave to Barbour.

Steffey believes Hood has a strong point. "As a constitutionally elected officer, encroachment on his authority by the legislative branch of government ought to be given scrutiny in the same way that the governor's authority over pardons should be given deference," Steffey said.