Legal Fight Over Jim Crow-Era Law Upends Mississippi Governor Race

By Reid Wilson, The Hill

09 June 19

 

im Crow-era provisions in Mississippi’s state constitution meant to exclude African Americans from winning political office could decide this year’s race for governor, and Democrats are suing to block it.

The provisions, added to the state constitution in 1890, require a candidate running for governor to win both a majority of the popular vote and a majority of the vote in more than half the state’s 122 legislative districts.

If a candidate who wins the popular vote does not win a majority of state House districts, the state House itself chooses a governor.

The district provision was meant to dilute the power of black voters, who tended to live — and still do — in geographically compact areas.

The legacy of a gerrymandered political map drawn by white Southern Democrats who packed black voters into a small number of legislative districts still exists today: African Americans make up a majority of the population in 42 of 122 legislative districts, and in 37 of those districts they account for more than 60 percent of the population.

Because of the recent realignment of white Southern voters away from the Democratic Party and toward the Republican Party, the legislature that was once dominated by Democrats now has a Republican supermajority. The GOP controls 72 of the 122 seats in the state House.

Democrats say the district lines are meant to dilute African Americans' power to elect candidates of their choice. And the National Redistricting Foundation, a group headed by former Attorney General Eric Holder under President Obama, is leading a federal lawsuit to overturn those constitutional provisions.

“The architects of this system for electing candidates to statewide office had one goal in mind: entrench white control of State government by ensuring that the newly enfranchised African-American citizens ... would never have an equal opportunity to translate their numerical strength into political power,” lawyers for the plaintiffs wrote.

Those architects of the constitutional provisions were unambiguous about their racist intent, contemporary documents show.

The president of the constitutional convention, Judge Solomon Saladin Calhoon, proposed the multitiered system specifically to “provide white governors and legislators.”

“There exists here in this state two distinct and opposite types of mankind,” Calhoon told delegates as the convention opened.

Mississippi’s method of electing a governor is unique.

Georgia requires a candidate to win a majority of the popular vote to be elected governor, with a mandated runoff if no candidate reaches that threshold.

Vermont gives the power to choose a governor to the state House if no one wins the majority of the vote. But no state other than Mississippi has a requirement that candidates win a majority of the state legislative districts in order to win the governorship.

The plaintiffs in the case are three African American men who were forced to pay poll taxes or pass a so-called understanding test before they were allowed to register to vote. Two live in majority-black legislative districts, and one lives in a majority-white district.

Just five months before Election Day, it is not clear that the legal process has time to play out in a case that would almost certainly require the attention of the U.S. Supreme Court.

Marina Jenkins, the litigation director at the National Redistricting Foundation, said the group had turned its attention to Mississippi’s unique system of electing a governor only after the midterm elections.

“We are hoping to move things pretty quickly because we are bumped up against this timeline,” Jenkins said in an interview. “We just felt really compelled to [file suit] now as opposed to waking up the day after Election Day.”

Though they are more than a century old, the provisions have been tested only once, in 1999. That year, Lt. Gov. Ronnie Musgrove (D) narrowly edged out former Rep. Michael Parker (R) in the popular vote, winning 49.6 percent of the total vote. The two candidates split the state House vote evenly, each winning 61 districts.

But that was before the dramatic Southern realignment that has taken place in recent years, and Democrats still controlled a huge majority in the state House. Musgrave won 86 of the 122 members of the state House, including 25 votes from representatives in districts Parker won.

The House did not get a chance to weigh in four years later, when Republican Haley Barbour beat Musgrove by a 7-point margin.

That was the last close race for governor in Mississippi — until this year. Because of the realignment in recent years, Democrats now worry that they could capture a majority of the popular vote but fail to win a majority in enough districts to keep the election out of the state House, where Republicans control a supermajority.

In a twist of political irony, the man ordinarily tasked with defending Mississippi from legal challenges, Attorney General Jim Hood, is the likely Democratic nominee — the person with perhaps the most on the line if the current law stands.

The suit names Secretary of State Delbert Hosemann (R) and state House Speaker Philip Gunn (R) as defendants.

The legislature has on occasion hired outside counsel when a lawsuit threatens a conflict of interest, and several sources close to Gunn and Hosemann said that would likely happen this time too.

Hood’s official office did not immediately respond to requests for comment. In a statement, his campaign said the winner of the popular vote should win the governorship, regardless of the districts from which those votes come.

“The candidate with the most votes should win, period. Every Mississippian's vote should count,” said Michael Rejebian, Hood’s campaign spokesman. “Those voters, not partisan politicians, should decide who they want to be their governor.”

Hood, one of the last few Democrats to hold statewide office in the Deep South, has won election in a majority of state House districts in recent years, in part because of his strength with both white rural voters who once aligned with the Democratic Party and with African American voters who still do.

In 2015, he won reelection with 56 percent of the vote, and he carried 66 of the 122 state House districts. In the same election, Gov. Phil Bryant (R) carried 87 of the 122 districts as he romped to reelection.

“He has demonstrated that he can get a lot of traditional conservative votes because most people don’t necessarily understand his record. That’s going to be his challenge in this election,” said Henry Barbour, a Republican power broker in Mississippi and Haley Barbour’s nephew.

Lt. Gov. Tate Reeves (R) and retired state Supreme Court Justice Bill Waller (R) — himself the son of a former Mississippi governor — are battling over the Republican nomination. Reeves has by far the most money in the contest, and he is seen as the favorite, though Waller has won support from several former state Republican Party chairmen.

Polls show Hood running neck and neck against Reeves. A February survey from Mason-Dixon Polling and Strategy found Hood leading Reeves 44 percent to 42 percent. Waller had not said he would run as a Republican at the time that survey was conducted.

Reeves’s campaign has sought to paint Hood with the same stripes as national Democrats.

“Tate is going to win the most votes and the most districts as the constitution requires,” said Parker Briden, a spokesman for Reeves’s campaign.

“All candidates for governor should agree that we don’t need Eric Holder and Barack Obama filing lawsuits to overturn any part of our constitution,” Briden added. “Any Mississippian who wants to change our constitution can pursue that change through a voter initiative. This is a decision for Mississippians to make, not Washington liberals.”

Barbour, the Republican strategist, said he believed the race would be decided by as few as 5 percentage points.

The key swing group, he said, would be those voters who began their lives as Democrats and have since migrated to the right, the conservative rural whites with whom Hood has had more success than other Mississippi Democrats.

“In the presidential race, you’ve got to understand swing voters in the Rust Belt,” Barbour said. “In Mississippi, that’s really the rural white voter, particularly on the east side of [Interstate] 55.”