After yesterday’s historic vote to take down the Confederate emblem as part of Mississippi’s state flag that was adopted in 1894, the Mississippi legislature today took another step in dismantling the legacy of the post-Reconstruction era by proposing a constitutional amendment to repeal the 1890 constitutional provisions allowing the Mississippi House of Representatives, under certain circumstances, to choose the winning candidate for statewide offices. As a result of today’s action, the proposed repeal will be submitted to the voters in November.
The legislature’s vote was prompted by a lawsuit challenging the provisions as part of a larger plan stemming from Mississippi’s notorious 1890 Constitution Convention to entrench white supremacy, take the vote away from Black citizens, and prevent Black people from ever being elected to statewide office. The lawsuit, McLemore v. Hosemann, was filed by seven Black Mississippi voters who are represented by the Perkins Coie law firm and the Mississippi Center for Justice. The lawsuit is supported by the National Redistricting Foundation.
“In the wake of the historic removal of the Confederate emblem from our state’s flag, we are pleased the legislature is taking this additional step to remove this racist relic of the post-Reconstruction era from Mississippi law,” said Vangela M. Wade, President of the Mississippi Center for Justice. “In addition to joining in the lawsuit that led to this development, we are moving forward with our challenge to Mississippi’s felon disfranchisement law, which is another discriminatory provision of the 1890 Constitution. We want to take advantage of this important moment in American race relations to advance the cause of justice in our home state of Mississippi.”
The challenged provisions, Sections 140, 141, and 143 of the 1890 Constitution, require a candidate for Governor or other statewide state-level office to obtain a majority of the statewide popular vote (“Popular-Vote Rule”) and also to be the leading vote-getting in a majority of the House of Representatives districts (“Electoral-Vote Rule”) in order to be elected. If no candidate satisfies both of these requirements, the members of the Mississippi House of Representatives choose the winner from among the two leading candidates in terms of the popular vote (“House Vote Rule”). Under these provisions, the House can elect the second-place candidate over the person who received the most votes statewide.
Last fall, the plaintiffs filed a motion to prevent implementation of the challenged provisions in the November 2019 elections for statewide offices. On November 1, 2019, U.S. District Judge Daniel Jordan issued an opinion expressing “grave concern” about the constitutionality of the Electoral-Vote Rule but declining to decide the issue unless the provisions were actually triggered by the upcoming election. They were not triggered since the winners of all statewide contests a few days later won both a majority of the popular of vote and the electoral vote. However, Judge Jordan subsequently met with the lawyers in the case and the legislative leadership and postponed the case so the legislature would have an opportunity in this 2020 legislative session to consider proposing a repeal of the challenged provisions
The proposed constitutional amendment that was passed today and will be submitted to the voters in November would remove the Mississippi House from any role in deciding the winner in statewide state-level elections. The winner would be chosen by the voters in the November statewide elections. If the election featured more than two candidates and no candidate won a majority, a runoff would be held.
The plaintiffs in the case are Leslie Burl McLemore, Charles Holmes, Jimmie Robinson Sr., Roderick Woullard, Brenda Booth, Jordan Malone, and Tyler Yarbroug.
The National Redistricting Foundation is a nonprofit organization that challenges voting and election laws that suppress the ability of voters fairly to elect candidates of their choice.
The Mississippi Center for Justice is a nonprofit, public interest law firm committed to advancing racial and economic justice.