U.S. District Judge Daniel Jordan of the Southern District of Mississippi at some point will either throw out the lawsuit challenging the legality of provisions of the Mississippi Constitution requiring the state House in some instances to decide statewide elections or he will hold a trial.
Days before the Nov. 5 election Jordan refused to enact a temporary injunction to block the constitutional provisions that send statewide elections to the House to decide if no candidate obtains a majority vote and the most votes in a majority of the 122 House districts. A lawsuit was filed earlier this year saying the provisions were unconstitutional for multiple reasons, primarily because they dilute black votes.
The provisions being challenged were enacted as part of the Jim Crow-era Constitution in 1890 to ensure that African Americans, then a majority in the state, were not elected to statewide office. The narratives of the day made it clear that was the intent. The framers of the state Constitution did not try to hide that fact.
Secretary of State-elect Michael Watson, a Jackson County Republican, has said it is long past time to remove the provisions from the Constitution. He has said that he wants to work with the Legislature to do that.
“The history and intent of the provisions certainly send the wrong message about our state, but I don’t want to change them simply because of the message they send,” Watson said recently. “I want to change them because it’s the right thing to do.”
Most, but not all the other discriminatory provisions of the state’s Constitution have been removed. In 1987 voters repealed the ban on interracial marriage by a slim 264,064 to 246,135 margin. Before then, provisions that mandated segregated school systems, a poll tax and other discriminatory actions were removed.
Of course, in most of those instances federal law or federal court rulings already had rendered those provisions unconstitutional before the Mississippi Constitution was changed. For instance, in 1967, the U.S. Supreme Court struck down bans on interracial marriage in a Virginia case. So, by the time the ban was removed from the Mississippi Constitution in 1987, it already was unenforceable.
In the instance of the provisions throwing the statewide elections into the House, Mississippians might have the rare opportunity to remove a discriminatory law without being forced to by a federal judge.
When Jordan heard oral arguments on the issue before the Nov. 5 elections, he indicated that, based on past court rulings, the provision throwing the election into the House if no candidate won the most votes in a majority of the House districts was likely unconstitutional. But he put off ruling on the issue.
“I assume the judge would love for the state to address this,” Watson said. “It is something I think he would prefer.”
For years, the House electoral provisions were not a factor in Mississippi elections. For much of the state’s history, the general election (the only time the provisions come into play) was a formality since the Republican Party did not field competitive candidates. Then in the 1990s as the Republican Party began to emerge, the provisions came into play in three consecutive elections – two for lieutenant governor and one for governor.
Then after that, it was the Democrats not fielding competitive candidates (for the most part) in state elections – again rendering the electoral provisions meaningless. But many believed with the race for governor this year between Democrat Jim Hood and Republican Tate Reeves the provision could be a factor again. But Reeves was able to win by a large enough margin to avoid the provisions.
After the 1999 election for governor between Democrat Ronnie Musgrove and Republican Mike Parker was thrown into the House where Musgrove, the top vote-getter, was elected, there was real momentum to change the provisions. But agreement in the Legislature could not be reached on what to do if no candidate received a majority vote.
Some wanted the candidate receiving a plurality of the vote to win the post. Others wanted a runoff.
It is not easy to change the Constitution. It takes a two-thirds majority of both chambers and passage by the voters to change the state Constitution or it requires a citizen-sponsored initiative.
When asked if he would prefer a system where a person would be elected without receiving a majority vote or whether he would prefer a runoff if there is no majority winner, Watson said, “Everything is on the table. I think it is important to have a buy-in from the other stakeholders… The Legislature will be driving the train, but I certainly look to be involved.”
Georgia is currently the only state with a runoff if no candidate garners a majority vote in the general election. In Louisiana the candidates (both Republican and Democrats) are on the same ballot) and a runoff is held if no candidate obtains a majority.