Judge refuses to toss Constitution provision that could throw governor’s election to House; but leaves door open to revisit

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The Mississippi Legislature in 1890, the year a constitutional convention formed wit the stated goal of disenfranchising African Americans in the state. Several provisions of that Constitution have been the subject of lawsuits in recent years, most recently a requirement that statewide candidates capture a majority of state House districts to win election.

Mississippi Constitution provisions requiring candidates for statewide office to win the most votes in a majority of the House districts and to capture a majority of the popular vote to prevent the election from being decided in the House were left intact by U.S. District Judge Daniel Jordan.

But Jordan left open the door to reconsidering the provisions that were placed in the state’s 1890 Constitution, based on various accounts, to ensure African Americans, then a majority in the state, were not elected to statewide office.

In the ruling released Friday, Jordan did question the constitutionality of the provision requiring a candidate to win the most votes in majority of the House districts. But he refused to throw out the provision just days before Tuesday’s election.

Future litigation still might be possible. What Jordan did Friday was deny a preliminary motion to throw out the provisions. There still could be a trial on the issue.

“Though at the preliminary stage, the court has grave concerns that at least the Electoral-Vote rule (requiring a candidate to win a majority of the House districts) is unconstitutional,” he said in the ruling. But the timing of taking up the issue so close to the election troubled Jordan.

Still, his ruling seemed to leave open the door of revisiting the provision as soon as after Tuesday’s election if a candidate wins a majority of the vote, but not the most House districts.

“Plaintiffs want a ruling before election day to prevent irreparable injury from occurring at that time,” he wrote. “Under Mississippi law, the votes are certified 10 days after the election…So while there could be irreparable harm if the electoral vote rule (requiring the wining of majority of House districts) is applied, the potential injury is not irreparable before the election.”

Rob McDuff with the Mississippi Center for Justice said if the Mississippi House “is put in a position to decide the election, it is possible the judge would then declare it unconstitutional and require the candidate with the most votes be declared the winner.”

Based on the ruling, McDuff said the plaintiffs saw no reason to appeal at this point.

Jordan pointed out the provision has never prevented the person winning the most votes from winning a statewide election. The provision did come into play in three consecutive elections, though, in the 1990s. In two of those, the candidates who did not have the most votes asked the House to vote for the top vote-getter. In one, the 1999 election for governor, the House voted for Democrat Ronnie Musgrove, the top vote-getter over Republican Mike Parker.

Attorneys associated with the National Redistricting Foundation and with the Mississippi Center for Justice, representing now seven black Mississippi voters, filed the lawsuit in May asking that the provisions to be thrown out because they diluted black voter-strength.

Secretary of State Delbert Hosemann and House Speaker Philip Gunn opposed the lawsuit.

Jordan heard oral arguments in the case in early October.

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.

Reeves has refused to say he believes the top vote-getter should be elected.