Mississippi House Speaker Philip Gunn

Attorneys for House Speaker Philip Gunn and Secretary of State Delbert Hosemann are asking a federal judge to leave intact language in the state’s 1890s’ Constitution that was intended to prevent African Americans from being elected to statewide office.

“Even if plaintiffs’ allegations that the challenged constitutional provisions were enacted with racial animus are true, those allegations are alone insufficient to establish a justiciable case or controversy to invoke the court’s jurisdiction,” Jackson attorney Trey Jones wrote on behalf of Hosemann and Gunn.

At issue is language from the state Constitution that requires a candidate for statewide office to garner a majority of the popular vote and the most votes in a majority of the state’s 122 House districts. If no candidate achieves both of those mandates, the House is supposed to select the winner from the top two vote-getters.

Secretary of State Delbert Hosemann (above) and Speaker Philip Gunn also asked that they be dropped from the lawsuit.

A lawsuit filed on behalf of four African Americans registered voters in Mississippi asks U.S. Chief District Judge Daniel Jordan III of the Southern District of Mississippi to block the provisions from being enforced because the lawsuit maintains they are unconstitutional and could theoretically prevent the top vote-getter from winning the office of governor this year. Hosemann and Gunn are asking that the lawsuit to be thrown out.

The lawsuit, filed in June, alleges the provision among other things “violates the one-person, one-vote principle by discarding all votes cast in each legislative district for candidates who fail to obtain a majority in that district.”

The mandate that a candidate win more than 50 percent of the vote “ensures that even when African American preferred candidates generate enough support to win a plurality of votes, they are unlikely to be elected,” the lawsuit complaint said.

The lawsuit points out the provision was inserted in the 1890s Constitution as one of the methods to prevent black Mississippians, who at the time were in the majority, from winning statewide office. The lawsuit cites a volume of the Mississippi Historical Society as saying the Constitution was written in 1890 in a manner to ensure the white minority controlled the House of Representatives and was “the legal basis and bulwark of the design of white supremacy in a state with an overwhelming and growing negro majority.”

The response from Hosemann and Gunn, filed earlier this week, said the four black Mississippians do not have standing to file the lawsuit because they have not been harmed by the provisions. It is “nothing more than conjecture” that they would be harmed, the response from Hosemann and Gunn says.

The response said, “neither the speaker nor the secretary wish to defend the motivations behind a law allegedly enacted with racial animus”  But in reality, the Hosemann/Gunn response, said the lawsuit “is not about race…It’s about partisan politics.”

The lawsuit was filed by the National Redistricting Foundation, an affiliate of the National Democratic Redistricting Committee headed by former U.S. Attorney General Eric Holder, and the Mississippi Center for Justice on behalf of Leslie-Burl McLemore of Lake Cormorant, Charles Holmes of Jackson, Jimmy Robinson Sr. of Jackson, Roderick Woullard of Hattiesburg. Some believe Attorney General Jim Hood, viewed as the Democrats’ best chance to win the Governor’s Mansion since 2003, could win the most votes – even a majority in the November general election – and still be denied the office by a Republican-controlled House if Hood does not win the most votes in a majority of the House districts.

In the Hosemann/Gunn response, attorney Jones said the provision had come into play only once – in 1999 – when the Democrat-controlled House voted 86-36 for Democrat Ronnie Musgrove. Musgrove won a plurality of the popular vote. At the time, most Republican House members, who were in a minority, voted for Republican Mike Parker, saying they were voting as their constituents in their districts voted.

In reality, the constitutional provisions came into play in three consecutive elections in the 1990s.

In the 1991 race for lieutenant governor, no candidate garnered a majority vote, but incumbent Democrat Brad Dye sent a letter to the House conceding to the top vote-getter Republican Eddie Briggs.

Then in 1995, Briggs sent a letter to the House conceding to Musgrove who captured a majority of the vote for lieutenant governor, but did not win a majority of the House districts.

Hosemann and Gunn also asked that they be dropped from the lawsuit and instead make Hood, as the attorney general, the defendant. Presumably, Gunn is listed because he presides over the House where the provisions would come into play and Hosemann was included because the secretary of state oversees elections.

Hood has said he believes the person who wins the most votes should be elected.

Currently Vermont is the only state with a similar provision, throwing statewide elections into the Legislature if no candidate wins a majority of the vote. Vermont does not have the provision requiring a candidate to win a majority of the House districts.

Mississippi is the only state where a candidate for statewide office could win a majority of votes and not be seated.

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Bobby Harrison, Mississippi Today’s senior capitol reporter, covers politics, government and the Mississippi State Legislature. He also writes a weekly news analysis which is co-published in newspapers statewide. A native of Laurel, Bobby joined our team June 2018 after working for the North Mississippi Daily Journal in Tupelo since 1984. He is president of the Mississippi Capitol Press Corps Association and works with the Mississippi State University Stennis Institute to organize press luncheons. Bobby has a bachelor's in American Studies from the University of Southern Mississippi and has received multiple awards from the Mississippi Press Association, including the Bill Minor Best Investigative/In-depth Reporting and Best Commentary Column.