The provision, which remains in force to this day, says candidates must win not only a majority of the popular vote — that is, more than 50% — but also a majority of the state’s 122 House districts.
On Thursday, more than a century later, four black Mississippians sued in federal court to put an end to what they say is a racially discriminatory system, unique in the U.S. and deliberately aimed at thwarting the election of African Africans.
“The scheme has its basis in racism — an 1890 post-Reconstruction attempt to keep African Americans out of statewide office,” said former U.S. Attorney General Eric Holder, the first black person to hold that position. He added: “In the 21st century, it’s finally time to say that this provision should be struck down.”
Holder is chairman of the National Democratic Redistricting Committee, whose affiliated foundation is providing financial and legal backing for the lawsuit.
Under the Mississippi provision, if no candidate wins the required majorities, the election is decided by the Mississippi House.
It’s not one of those dusty segregation-era provisions that have remained on the books, forgotten and unused: It was invoked in 1999, when the House chose between two whites who were the top vote-getters in a four-person race for governor.
“This is not a theoretical thing,” Holder said. “We have seen no statewide African American elected to office since this was enacted, in spite of the fact that Mississippi has the highest percentage of African Americans of any state in the country.”
The lawsuit asks a judge to prohibit Mississippi from using the procedure in this year’s elections. It does not suggest an alternative way, but Holder said Mississippi could simply be ordered to do what most states do — “count all the votes and the person who gets the greatest number of votes wins.”
Mississippi Republican House Speaker Philip Gunn, who is named as a defendant in the lawsuit, declined to comment.
The longtime chairman of the Mississippi House Elections Committee, Republican Rep. Bill Denny, said that during his 32 years in office, there has been no serious effort to change Mississippi’s method of electing statewide officials.
“I’m comfortable with it,” Denny said of the current system.
It was put in place as white politicians sought to suppress black voting power that emerged during Reconstruction and propelled some black candidates to statewide office.
The lawsuit cites comments at the time by the president of Mississippi’s constitutional convention, who asserted that black control of government “meant economic and moral ruin” and that the state had an “over generous” number of black voters.
The case is part of an effort by Holder’s organization to influence the election of the politicians who will oversee congressional redistricting in Mississippi after the 2020 census. Some African American candidates are running for governor and other statewide offices this year.
The lawsuit notes that black voters are highly concentrated in some Mississippi House districts, holding a majority of the voting-age population in 42 of them. Mississippi’s white residents overwhelmingly vote Republican, while its black residents overwhelmingly cast their ballots for Democrats. About 38% of the state is black.
Because of the racially polarized and concentrated voting, a candidate preferred by white voters could win a majority of the House districts without winning the statewide vote, the lawsuit says.
To date, no Mississippi candidate who won the most votes for a statewide office has been prevented from taking office because of the other requirements.
African American candidates have faced other hurdles in Mississippi politics over the years. After Reconstruction, extremely few blacks were registered to vote until the mid-1960s because of poll taxes and deadly violence.
The lawsuit says only four states — Arizona, Georgia, Mississippi and Vermont — require a candidate for governor to win a majority of the popular vote. Arizona and Georgia have runoffs if needed, while in Vermont, the state House and Senate decide the winner.
The four plaintiffs in the lawsuit include two retired political science professors.
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