A federal judge declined to step in on the eve of Mississippi’s statewide elections and block a provision of the state’s constitution that allows state lawmakers to choose the winner of statewide elections under certain circumstances.
The disputed provision was implemented in the 19th century as a way of enabling white lawmakers to dilute the power of newly-enfranchised African Americans in the state. It requires statewide candidates to win both the popular vote and a majority of the state’s legislative districts. If neither candidate wins a majority of the vote, state lawmakers can pick the winner of the election.
The provision has rarely been applied since it was implemented.
U.S. District Judge Daniel Jordan III expressed “grave concern” that the provision requiring candidates to win both a majority of the popular vote and state House districts was unconstitutional. Yet while the rule could cause harm by discarding the will of voters in favor of a decision by state lawmakers, the judge said he was unwilling to step in before the election to strike down the measure, arguing that such a move would cause even greater harm by disrupting the election.
“Absent some impact on the election results, the constitutional injury caused by discarded votes is outweighed by the harm a preliminary injunction would cause when the Court attempts to craft a new method for electing statewide officers on the eve of the election,” Jordan wrote.
But if the election does end up being determined by the state House, Jordan suggested he would step in. “A far more tangible injury could become imminent,” he wrote, adding that he would move to hold an expedited trial under the circumstances.
“We will continue to fight voter suppression in Mississippi and other states around the country to ensure all voters can exercise their right to cast a ballot and have their vote count equally to their fellow citizens,” said Marc Elias, a top Democratic election lawyer who represented the plaintiffs, said in a statement.
The suit was filed on behalf of four black Mississippi voters who said the provision unlawfully dilutes their votes. While the measure has been used infrequently, Democrats are worried that Attorney General Jim Hood (D) could win a majority of the statewide vote but not a majority of legislative districts.
While African Americans make up 38% of the statewide population, they only constitute a majority of the population in 42 of 122 state House districts, according to NPR. There has not been a black statewide elected official in over a century.
This story has been updated with comment from Marc Elias.
Read the ruling below: