With the Mississippi gubernatorial election on Nov. 5 expected to be a tightly contested race between Lt. Gov. Tate Reeves and Attorney General Jim Hood, this election may resurrect a little-known statewide elections clause from the Jim Crow Era.
Per the post-Reconstruction Constitution of the State of Mississippi of 1890, for candidates to win statewide elections, they must not only win a majority of the popular vote but also a majority of the 122 State House of Representatives districts. If both conditions are not met, the Mississippi House of Representatives is then sworn in to choose the next governor.
Vermont is the only other state to use a similar rule, but their state constitution only requires a majority of the popular vote to win. If the candidate does not win a majority, the General Assembly picks the governor.
This law was used for the first and only time in the 1999 gubernatorial race between Democratic Lt. Gov. Ronnie Musgrove and Republican former US Congressman Mike Parker. Musgrove received over 8,000 more votes than Parker and carried 49.6% of the popular vote, but fell short of the majority rule. The two also deadlocked at 61 state congressional districts apiece.
Parker refused to concede, choosing to allow the House to decide the race, despite it being controlled by Democrats. The House voted along party lines, choosing Musgrove to become the next governor. At the time, Parker’s spokesperson, Rusty Fortenberry, argued for the law, equating it to the Electoral College system in place in the U.S. Constitution.
“The only thing standing between us and tyranny is our Constitution,” Fortenberry told the New York Times in 1999. “Lots of people are trying to demonize Mr. Parker, but it’s really about whether we follow the law.”
In 1889, U.S. Sen James George, out of fear that African Americans in Mississippi would outnumber white people two to one by the turn of the century, called for a new state constitution that would ensure white supremacy. He named Mississippi Supreme Court Judge Solomon Calhoon as the president of the Constitutional Convention. Calhoon outlined his goals for the new constitution.
“The ballot system must be so arranged as to affect one object,” he said. “We find the two races now together, the rule of one of which has always meant economic and moral ruin and the other, which has always meant prosperity and happiness.”
The new state constitution included a poll tax to prevent poor African Americans from voting, a prohibition on interracial marriage, a requirement that separate public schools be maintained for white and black children and the statewide election majority requirement that was intended to keep black Mississippians from holding statewide offices.
While the Civil Rights movement eliminated those Jim Crow-era statutes, the statewide election rule remains.
Following the 1999 gubernatorial election, black Democratic House member George Flaggs Jr., weighed in on Mike Parker’s refusal to concede and the implications of the law.
“It’s ironic that the same thing that was put in the Constitution to disenfranchise our vote, now a Republican is using to hold on to,” Flaggs told the New York Times. “They put us out, and they’re trying to use the same method to get back in. It’s time for a change.”
Nearly 20 years later, the law may again impact the governor’s race. With polls showing Reeves and Hood extremely close, and third-party candidates Bob Hickingbottom and David Singletary expected to earn a combined 2-4%, it will be nearly impossible for Hood to win. If he defeats Reeves in the popular vote, he may be unable to surpass the majority threshold, and the Republicans control a majority of the House’s 122 districts. A current federal lawsuit, McLemore v. Hosemann, is attempting to suspend the rule for this election.
The case argues that white voters control 65% of House districts, while they only make up 59% of the state’s population. This is compounded by the strong racial divide in party preference. The case states that in 2008, African American voters in Mississippi supported Democratic candidates by about 90%, while white voters supported Republicans by between 81-88%. They argue that since disproportionately white districts will likely support Reeves, the current rule will inaccurately affect how many districts Hood can win and require him to win a larger share of the popular vote to offset this.
The legal team behind this lawsuit is supported by a foundation associated with former U.S. Attorney General Eric Holder’s National Democratic Redistricting Committee. It argues that Mississippi’s electoral system violates the 14th and 15th Amendments, as well as the Voting Rights Act, which prohibits racial discrimination in voting.
“It is well-settled that an electoral scheme that minimizes or cancels out a minority group’s voting strength has a discriminatory effect, and when that scheme is enacted for a discriminatory purpose, it violates the 14th and 15th Amendments,” the plaintiff’s argument reads.
Oral arguments occurred in Jackson on Oct. 2 with a motion hearing on Oct. 11. A decision has yet to be handed down, but the conservative judiciary is expected to rule in favor of Secretary of State Delbert Hosemann, upholding the law in this election. This means that anything other than a majority win for Hood in the popular vote and state House districts would guarantee Tate Reeves the governorship.
Democratic political consultant and former State Representative Brandon Jones made his case against the law at an Overby Center event last Wednesday.
“I’m one of those folks who believes that the person who gets the most votes deserves to win the race,” he said.
