Legislature poised to revisit Jim Crow-era electoral provisions in state Constitution

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Eric J. Shelton/Mississippi Today, Report For America

Both House Speaker Philip Gunn, left, and Lt. Gov. Delbert Hosemann say they support considering provisions in the state Constitution that allow the House in some cases to decide the winner this session.

In just about every year since the Mississippi House voted in 2000 to make Democrat Ronnie Musgrove governor, there has been legislation filed to remove the constitutional provision giving the 122 representatives the task of selecting statewide officeholders under certain conditions.

This year legislation may finally pass to remove the provisions included in Mississippi’s 1890s Constitution to ensure African Americans, then a majority in the state, were not elected to statewide office by giving the House a role in the electoral process. Both presiding officers, new Lt. Gov. Delbert Hosemann and House Speaker Philip Gunn, have indicated they support the issue being at least considered this session.

“Yes, I think we are going to look at it this session,” said Gunn recently.

Hosemann said, “Our Elections Committee is looking at this. We had a private meeting with the judge about this. I think it will come up for consideration this year.”

The judge – U.S. Judge Daniel Jordan of the Southern District of Mississippi – based on his public comments, might be giving Gunn and Hosemann incentives to repeal the provisions. The provisions require a candidate for statewide office to win a majority of the votes and capture the most in a majority of the House districts or else the election is thrown to the House to decide among the top two vote-getters.

Jordan indicated that if the manner is not resolved, he could hear a lawsuit in his court on whether the Jim Crow-era provisions should be repealed. In 2019, a lawsuit was filed asking the federal judge to find the provisions unconstitutional and require the person with the most votes to be elected.

Gunn and then-Secretary of State Hosemann argued before the judge that the provisions should not be repealed by the judiciary. Before the November elections, Jordan essentially postponed the lawsuit, opting to wait to see if the results of the November election would trigger the provisions. The winner in all statewide races won a majority of votes and the most votes in a majority of the House districts so the provisions were not triggered.

But in December, Jordan met with Gunn, Hosemann and new Secretary of State Michael Watson.

After the meeting, he wrote in a court filing. “If the (constitutional) amendment falls shorts, then there would be ample time to resume this litigation and resolve the matter before the 2023 election cycle.”

Watson also has indicated he supports removing the provisions.

Sen. David Blount, D-Jackson, as he does most every year, has introduced legislation to amend the Constitution so that the candidate who wins the most votes would be declared the winner. In three states – Georgia, Louisiana and Vermont – a candidate must win a majority of the votes. In Georgia and Louisiana there is a runoff if no candidate captures a majority. In Vermont, the election is thrown into the House.

Gunn and Hosemann said they had not decided yet whether they believe a candidate should be required to win a majority of the vote to win the office. After the last time the electoral provisions were triggered, the 1999 governor’s race where Musgrove won the most votes but barely missed capturing a majority, there was talk of removing the provisions, but an agreement could not be reached on whether there should be a runoff if no candidate won a majority.

Since 2000, each session proposals to change the Constitution died in committee except in 2004 when a provision reached the House floor before being voted down.

To amend the Constitution requires passage by two-third majorities in both the House and Senate and approval by the voters on the November ballot. The governor does not have a role in the process of changing the Constitution.

The provisions were put in the 1890s Constitution along other items, such as the poll tax and separate school systems, to discriminate against black Mississippians. Besides the provisions potentially throwing elections into the House to decide, the other most  prominent provisions designed in the 1890s to discriminate against African Americans remaining in the state Constitution is the lifetime ban on voting for people convicted of certain felonies.

Legislation also has been introduced to end the lifetime ban on suffrage for certain felonies. That legislation also has consistently died in committee in past years and it is believed to have less of a chance of being considered this session than does the proposal to end the process of throwing elections into the House.