This fall in Mississippi, a group of elected officials could block the candidate who wins a majority of statewide votes from assuming the Governor’s Mansion and the attorney general’s office. And it would be completely legal.
That’s because of a long-overlooked provision in the state’s 1890 Constitution. The measure requires candidates for statewide office to win not just a majority of the vote but also a majority of the 122 districts in the state House. If a candidate wins a majority of the statewide vote but not a majority of the districts, the members of the Republican-controlled state House choose who wins the election. If no candidate receives a majority of the vote, the Mississippi House of Representatives picks a winner from the two candidates who received the most votes.
The provision has received little attention until recently, when four Black Mississippi voters filed a federal lawsuit arguing that it discriminates against African Americans. Although Black people make up 38% of the state, they are a majority in only 42 of the state’s 122 House districts, according to NPR. The provision was part of an explicit effort during Mississippi’s 1890 constitutional convention to suppress the Black vote, experts say, and has helped keep Black people out of statewide offices for years. It could do the same in the next election, when attorney general candidate Jennifer Riley Collins seeks to become the first Black statewide-elected official in nearly 150 years.
Collins, a Democrat, along with gubernatorial candidate and current Attorney General Jim Hood (D), who is white, could win a majority of statewide gubernatorial votes but not a majority of the House districts.
That’s unless a federal judge strikes down the constitutional provision. A federal judge in Jackson is set to hear oral arguments in McLemore v. Hosemann on Friday.
The four plaintiffs in the case are longtime Mississippi voters, two of whom had to pay poll taxes and three had to pass tests to register to vote decades ago. In court filings, their lawyers argue Mississippi’s system for choosing statewide elected officials is both unconstitutional and illegal because Black-preferred candidates have to win more statewide votes than their white counterparts to get elected.
The provision is rooted in efforts to suppress Black people. After the 15th Amendment prohibited officials from denying voting rights based on race, the Mississippi delegates who met in 1890 sought to limit the power of the newly enfranchised black population in the state. Along with the requirements for winning statewide office, they adopted measures like poll taxes and literacy tests that made it harder for Black people to vote. The plan succeeded and significantly reduced the number of eligible Black voters in the state. Mississippi hasn’t elected an African American to statewide office in well over a century.
“They focused on coming up with a particular means by which to achieve the goal of white supremacy without violating any federal constitutional safeguards. No other state had attempted that,” said John Winkle III, a professor emeritus of political science at the University of Mississippi. “That’s the way the law was set in 1890, and it was clearly the product of the white supremacy overtones of the entire constitution itself.”
Over time, the federal courts and government got rid of poll taxes and literacy tests. But in Mississippi, the special conditions to win statewide office remained.
Riley Collins, the Democratic candidate for attorney general, said it was obvious the provision in the state Constitution was only about race.
“The crafters of that provision indicated that this was about limiting the power of Black [elected officials]. And so for someone to later try to be revisionist in history is not reading ― they are not reading what the crafters themselves said,” she said in an interview with HuffPost. “We can deny it all day ― it is what it is.”
We can deny it all day ― it is what it is. Jennifer Riley Collins, Mississippi attorney general candidate
Even though the constitutional provision is obviously racist, it’s gone unnoticed because it simply hasn’t come into play in elections, Winkle said. One exception came in 1999, when none of the candidates running for governor won a majority of the vote. Lawmakers in the Mississippi House, then controlled by Democrats, chose the Democratic candidate, who was the one who had also earned the most votes in the election.
The four plaintiffs seeking to overturn the provision argued the Mississippi Constitution establishes a structure that makes it harder for them to elect a candidate of their choice. They say the system denies them the opportunity to participate in the political process on equal ground with white people, regardless of which candidate wins an election.
“The Popular-Vote Rule ensures that even when African-American-preferred candidates generate enough support to win a plurality of votes, they are unlikely to be elected,” they wrote in the complaint they filed in May. “The House-Vote Rule ... thwarts the election of an African-American-preferred candidate by removing the selection of candidates for statewide office from the hands of the electorate and places the decision with the House, where African Americans have little influence.”
Lawyers representing the defendants, Secretary of State Delbert Hosemann and House Speaker Philip Gunn, both Republicans, conceded in their own court filings that the law has a discriminatory origin. But, they argue, the plaintiffs in the case are really claiming discrimination based on their political party, not race. The four Mississippi voters, they say, have not suffered any harm because the Mississippi Constitution has never prevented an ”’African-American-preferred candidate’ who won the popular vote from taking office.”
“Neither the Speaker nor the Secretary wish to defend the motivations behind a law allegedly enacted with racial animus,” the lawyers for state officials wrote in a July filing. “However, both the allegations in the Complaint and the timing of its filing demonstrate that this lawsuit is not about race, and it is not about vindicating alleged wrongs to Plaintiffs’ rights to vote — it’s about partisan politics.”
Hood, the gubernatorial candidate, said politicians in the Mississippi Legislature shouldn’t decide who the next governor of Mississippi will be.
“The candidate with the most votes should win, period. Every Mississippian’s vote should count. Those voters, not partisan politicians, should decide who they want to be their governor,” Hood said in a statement.
The suit is being backed by the Mississippi Center for Justice and the National Redistricting Foundation, which is affiliated with the National Democratic Redistricting Committee, a group led by former U.S. Attorney General Eric Holder.