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Suit seeks to overturn Mississippi 'fail-safe' that protects White voting power in elections

By Askia Muhammad -Senior Editor- | Last updated: Jul 23, 2019 - 10:07:26 AM

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In this June 21 photo, gubernatorial nomination candidates Mississippi Attorney General Jim Hood, a Democrat, right and Lt. Gov. Tate Reeves, a Republican, shake hands during the Mississippi Press Association Candidates Forum in Biloxi, Miss. A federal judge says he’s aware of the “time-sensitive nature” of an election-year lawsuit that says Mississippi has a racially discriminatory method of choosing statewide officials, including governor. Photo: AP/Wide World Photo
WASHINGTON—For centuries, the state of Mississippi has worn the reputation of the most racially repressive in the nation—decades of lynching; a Confederate symbol remains in the state flag; and years of massive voter intimidation and suppression in the state with the largest proportion of Black residents in the United States.

Add to that list a unique voter nullification amendment, added to the state constitution in 1890, which makes it virtually impossible for a Black candidate to win a statewide election. The scheme requires candidates for statewide office to win not just the most votes, but also the most state congressional districts. That system has finally been challenged in court.

A lawsuit was filed in June by four Black Mississippi voters against Mississippi GOP Secretary of State Delbert Hosemann and Mississippi GOP House Speaker Philip Gunn, accusing the state of violating the 14th and 15th Amendments to the U.S. Constitution as well as a section of the Voting Rights Act. It called on the court to pull the provisions ahead of upcoming state elections in 2019.

“Absent court intervention, the challenged provisions will continue to infringe upon the constitutional and statutory rights of African American voters in Mississippi, dilute African American votes and violate the one-person, one-vote principle in the upcoming general election and in every statewide election for years to come,” the federal court complaint read.

The Mississippi provision seems to be patently unconstitutional on its face, according to Marina Jenkins, litigation director for the National Redistricting Committee, which filed the suit.

“We believe this is a very strong case, violating the 14th Amendment, the 15th Amendment and Section Two of the Voting Rights Act. On its face, again, this is going back to the point when this was instituted in 1890, after the Civil War and during Reconstruction,” she said in an interview.

“African Americans in Mississippi, as they did across the South, actually started gaining a lot of political power. And so, in the post-Reconstruction era, there was this White backlash. There was a backlash against that rise of political power among African Americans. And at the time Mississippi was over 50 percent Black.

“And so the powers that be in Mississippi convened and came together and during this same constitutional convention, you have this scheme put into place when you have the poll tax introduced and literacy tests,” she continued.

“And they did not hide what they were trying to do. We’ve got an historian working with the case and pulling up all of these sort of contemporaneous sources from the media and from the convention itself where you have the participants saying expressly, we are doing this to diminish the ability of African Americans to use their political power. And so, it’s part of that time and it’s just been far too long that something like that is still allowed to be on the books in this country,” Ms. Jenkins added.

The National Redistricting Foundation, an affiliate of an anti-gerrymandering group led by former Attorney General Eric Holder, is supporting the suit. “Mississippi’s long, sordid history of racial discrimination and politicians who exploit racial divisions only perpetuate this broken system in which African-American interests are woefully underrepresented in the state government,” Mr. Holder said in a statement.

“This lawsuit seeks to level the playing field so that African-American voters are finally able to exercise their right to elect the candidates of their choice to lead Mississippi.”

In Mississippi, the winners of state-level, statewide offices must win both an outright majority of the popular vote and a majority of state House districts. If no candidate wins both, the state House determines the election.

The process was set up to “entrench White control” of the state and makes it harder for Blacks to win statewide races, according to the lawsuit. Mississippi’s 1999 gubernatorial race ended without either major-party candidate receiving the majority of votes statewide, so the following January, the Mississippi House voted overwhelmingly for the Democratic candidate, the first time a governor’s race was turned over to the House.

The lawsuit argues that the provision requiring that a candidate win a majority of state House districts increases White control because “the vast majority of House districts have a majority-white population that can easily outvote the smaller number of highly concentrated African-American majority districts.”

The distribution of voters by race through state House districts means a candidate preferred by White voters can win the majority of districts with a much lower share of the overall vote than a candidate preferred by Black voters. The suit described the provision turning over the election to the state House as a “fail-safe” for White political power in the state. Mississippi has the highest share of Black population of any state in the country, yet has not had a single Black candidate win state-level, statewide office since Reconstruction.

The lawsuit also noted the 1890 Constitution included a range of racist measures synonymous with the Jim Crow era, including the infamous and since-repealed poll tax.

“The framers of the 1890 Constitution made no secret of their intentions,” the complaint notes. “The challenged provisions are the result of a blatant, well-publicized campaign to minimize the political influence of African-Americans in Mississippi.

“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,” the lawsuit states.

“This discriminatory electoral scheme achieved, and continues to achieve, the framers’ goals,” the suit continued, “by tying the statewide-election process to the power structure of the House. So long as white Mississippians controlled the House, they would also control the elections of statewide officials.” The challenge comes months before the state gubernatorial election in November, which could give the winning side the upper hand in the state’s redistricting, set for a 2021 kickoff.

“Our desire is for the state to have the person who gets the most votes to get elected,” said Ms. Jenkins. “And that is the most fair process we think. And it would remedy the fact that under this system you have a gerrymandered legislative map that has African Americans who are packed into a small number of districts.

“And so given the dynamics of the house, the House of Representatives in Mississippi, it’s just not possible for African Americans to elect the candidate of their choice as required by the Voting Rights Act. And so that is why we do believe it’s a violation of both the Voting Rights Act and the 14th and 15th Amendment of the Constitution,” she said.