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Jackson attorney Trey Jones, representing Secretary of State Delbert Hosemann and Speaker Philip Gunn, on Friday urged U.S. District Judge Daniel Jordan “to maintain the status quo” and preserve provisions of the 1890s’ state Constitution that could prevent the person winning the most votes on Nov. 5 from being elected to statewide office.
“Maintaining the status quo is a little bit rich” since the status quo was created in the 1890s to prevent African Americans from holding statewide office, said Marina Jenkins, litigation director for the National Redistricting Foundation.
At issue are state constitutional provisions that require a candidate for statewide office to win a majority of the votes and the most votes in a majority of the 122 House districts. If a candidate does not meet both of those thresholds, the election is thrown to the Mississippi House to decide between the top two vote-getters. Narratives from the time when the Constitution was adopted make it clear the provisions were added to prevent black Mississippians, then in the majority, from holding statewide office. The provisions were part of other Jim Crow-era laws designed to prevent black Mississippians from voting.
Attorneys associated with the National Redistricting Foundation and with the Mississippi Center for Justice, representing four black Mississippi voters, are asking Jordan to find those provisions unconstitutional and mandate the person who captures the most votes wins the office. Or short of that ruling, at least throw out the provision that a candidate must win a majority of the House districts. If that provision is thrown out, then the election would be thrown into the House only if a candidate does not garner a majority (50 percent plus one) of the vote.
Jordan, who heard nearly three hours of oral arguments on the case Friday morning in the Southern District of Mississippi in the Cochran Courthouse in Jackson, seemed genuinely torn on how to rule.
Jordan told Uzoma Nkwonta, representing the four African Americans, he was hesitant to change Mississippi election law without first giving the state a chance to address the issue. At this late date, the state would not have that opportunity.
Yet, he told Jones that a 1960s Supreme Court ruling throwing out similar provisions in Georgia where candidates had to win the most votes in counties seemed to lend credence to the argument that the Mississippi provisions should be changed.
Jordan indicated he would rule before the Nov. 5 general election, but said he was struggling with the fact that outside of the 1960s Georgia case that there have not been many cases with similar facts.
“Part of me thinks no matter what I do I would encourage the other side to immediately appeal” to try to obtain more clarification on the issue, Jordan said.
Jones told the judge he should not change state law on his own just because of the potential “that the stars might align” and the election is thrown into the House. Jones told the judge the provisions had only been a factor in one election – in 1999 when the House elected Ronnie Musgrove, the top vote-getter for the office of governor. But in reality, in both 1995 and 1991 the elections for lieutenant governor were thrown into the House. But in those instances the losing candidate asked House members to vote for the candidates with the most votes.
The issue has surfaced this year because for the first time since 2003 most believe the Democrats have fielded a competitive candidate for governor – Attorney General Jim Hood. Those wishing to change the law say that statistical analysis done by their researchers reveal, that because of the way the House districts are drawn to favor Republican candidates, Hood would have to win about 55 percent of the vote to capture a majority of the House districts. His opponent, Republican Lt. Gov. Tate Reeves, would have to win only about 47 percent of the vote.
“The finish line for the white-preferred candidate comes much earlier than for the black-preferred candidate,” said Nkwonta. “That is definitely an equal protection issue.”
n Mississippi, the vast majority of white voters choose the Republican candidate while most black voters vote for the Democrat.
There is a strong likelihood that litigation in the federal courts on the issue will continue after the Nov. 5 general election, regardless of what Jordan rules.
A matter of fact, Jones said the issue could be litigated after the election should the constitutional provisions come into play.