On June 20, U.S. Judge Daniel Jordan of the Southern District of Mississippi wrote “the court understands the time sensitive nature of the case” asking him to block provisions of the state Constitution that could throw this year’s governor’s election to the state House to decide.
More than three months later, there has been no resolution to that time sensitive lawsuit. When statewide elections occur on Nov. 5, it is likely that the lawsuit still will be alive in some form – either before Jordan or on appeal to the 5th U.S. Circuit Court of Appeals with an ultimate destination of the U.S. Supreme Court.
In other words, if the Mississippi governor’s election turns out being as close as most pundits predict it will be, there could be a scenario where lawyers are arguing in federal court that the constitutional provisions throwing the election to the House should be blocked even as members of the House are preparing to vote to elect the next governor of the state.
December, in advance of the 2020 legislative session, could be a chaotic time for Mississippi’s political system. The election might just be the appetizer.
The provisions in question require a candidate for statewide office to win a majority of the vote and win the most votes in a majority of the 122 House districts. If no candidate reaches both of those thresholds, the election is thrown into the House to decide.
Three straight elections in the 1990s (two for lieutenant and one for governor) went to the House. Many believe there is a possibility it could happen again this year in the race for governor where Republican Lt. Gov. Tate Reeves and Democratic Attorney General Jim Hood are locked in a tight battle.
Presumably recognizing the possibility that the election could be thrown into the House, a lawsuit was filed in June to have the constitutional provisions blocked. The lawsuit said the provisions were part of efforts incorporated into the state’s 1890 Constitution to ensure African Americans, then the majority in the state, were not elected to statewide office.
The lawsuit was filed by the National Redistricting Foundation, chaired by former Attorney General Eric Holder, and the Mississippi Center for Justice on behalf of four Mississippi voters.
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.”
Most of those other provisions inserted in the 1890 Constitution to deny rights to African Americans, such as polls taxes and segregated schools, long ago were struck down by the courts.
Secretary of State Delbert Hosmeann, as the state’s chief elections officer, and Speaker Philip Gunn, as the presiding officer of the House, were named as defendants in the lawsuit.
Hosemann and Gunn argue 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 claim.
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.”
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Earlier this summer, when asked, Reeves refused to say the candidate who obtains the most votes should be declared the winner. Instead the Reeves’ campaign, as if awakening echoes of the past when Mississippi politicians often lambasted “outside agitators” for trying to change the state laws in order to ensure rights for black citizens, said, “this is a decision for Mississippians to make, not Washington liberals.”
Hood, on the other hand, said, “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.”
After Republican Mike Parker took the election to the House in 2000 where he lost to Democrat Ronnie Musgrove, who was the top vote-getter in the November 1999 general election, there were efforts to change the Constitution to eliminate the provisions. But legislators could not agree whether there should be a runoff election if no candidate garnered a majority vote. In most states, no runoff is required for general election contests.
As Republicans gained a foothold and most statewide elections were decided by large margins, the urgency to change those constitutional provisions waned. But the Hood/Reeves contest could again bring a sharp focus to those provisions.