Mississippi is the only state in the nation where a candidate could garner a majority vote (more than 50 percent) and not win the statewide office he or she was pursuing.
There is a distinct possibility that this November, Democratic Attorney General Jim Hood could win more than 50 percent of the vote in his campaign for the governor’s office and still be back home in Chickasaw County in January enjoying retirement from public service and not residing in the Governor’s Mansion.
Four black Mississippi voters — Leslie-Burl McLemore of Lake Cormorant, Charles Holmes of Jackson, Jimmy Robinson Sr. of Jackson and Roderick Woullard of Hattiesburg — have filed a lawsuit in federal court in the Southern District of Mississippi in an effort to make sure that does not happen. They maintain that the language in the 1890 state Constitution that potentially throws close statewide elections to the House to decide is in violation of the U.S. Constitution because it dilutes black voter strength.
The Mississippi Constitution requires any statewide general election where no candidate obtains a majority vote and wins the most votes in a majority of House districts to be thrown into the House. The House will select a winner from the top two vote-getters.
The framers of the state’s 1890s Constitution, based on an explanation in a volume of the Mississippi Historical Society cited in the lawsuit, designed a system that ensured the white minority controlled the House of Representatives and was “the legal basis and bulwark of the design of white supremacy in a state with an overwhelming and growing negro majority.”
African Americans were a majority in the state at the time.
For the vast majority of the history of the state the constitutional language has had no impact on Mississippi elections because in most instances the general elections have not been close. But in three straight elections in the 1990s the language came into play. In two of those elections, the candidate receiving the second most votes opted not to pursue victory in the House. But, of course, in 1999 Republican gubernatorial candidate Mike Parker tried unsuccessfully to win the election in the House even though Democrat Ronnie Musgrove garnered the most votes.
This year there is renewed interest in the constitutional language because Hood is considered the Democrats’ most viable candidate for governor since 2003.
Granted, the most likely outcome of the election might not be Hood winning more than 50 percent of the vote, but not winning the most House districts. But that outcome is possible. There is a real possibility that Hood, who has been leading in multiple polls, could win by a narrow margin, but not win the most House districts, which have been gerrymandered to favor Republican candidates.
And it should be pointed out all three Republican candidates for governor — Lt. Gov. Tate Reeves of Rankin County, former Supreme Court Chief Justice Bill Waller Jr. of Jackson and state Rep. Robert Foster of DeSoto County — have refused to say they believe that the candidate who garners the most votes should win the office.
It appears they would be willing to take their chances with what most likely will be a Republican-controlled House. The question, though, is will the Mississippi voters who filed the lawsuit prevail and the language be struck down by a federal judge before the election.
The lawsuit lists as defendants Secretary of State Delbert Hosemann and House Speaker Philip Gunn.
It is not clear who will represent the state in the lawsuit.
In a statement, a spokesperson for Hood, who could benefit if the lawsuit is successful, said, “The office of Attorney General is not a defendant in this case, and we haven’t yet made a determination as to whether the two named defendants would retain their own outside counsel. We want to consider all the options before reaching a decision.”
Whomever might defend the electoral provisions for the state will be arguing in favor of language that statements from the time period indicate was placed in the Mississippi Constitution to ensure African Americans were not elected to statewide office.
And they will be arguing in favor of language that makes Mississippi an outlier — the only state where the candidate winning a majority of the votes does not necessarily win the office.
This column was produced by Mississippi Today, a nonprofit news organization that covers state government, public policy, politics and culture. Bobby Harrison is Mississippi Today’s senior Capitol reporter.