JACKSON, Miss. (AP) — A federal judge ruled Friday that he will not immediately block Mississippi's unique, multistep process for electing a governor and other statewide officials, which was enacted at a time of Jim Crow segregation to maintain white rule.
U.S. District Judge Daniel P. Jordan III said he would not issue a preliminary injunction to prevent the system from being used in Tuesday's elections. However, he left open the possibility of further considering the case later.
Mississippi's 1890 constitution requires a statewide candidate to win a majority of the popular vote and a majority of the 122 state House districts. If nobody wins both, the election is decided by the House, and representatives are not obligated to vote as their districts did.
The process was written when white politicians across the South were enacting laws to erase black political power gained during Reconstruction, and the separate House vote was promoted as a way for the white ruling class have the final say in who holds office.
African American plaintiffs who sued the state this year have argued that the system unconstitutionally violates the principle of one person, one vote.
Jordan wrote that the plaintiffs' argument about violation of one person, one vote is "arguably ... their strongest claim." The plaintiffs' attorneys argued that the Mississippi system is similar to a Georgia county-unit election rule that was invalidated by a federal court ruling in 1963.
"They're right," Jordan wrote.
Jordan raised concerns about the timing of the case, noting that Mississippi's election laws "are not merely statutes that can be revised in one legislative session; they are constitutional provisions that require amendment."
"That process cannot occur before the November 2019 votes are counted or within a short time after the election. Indeed, it was already too late when this suit was filed," Jordan wrote. "But based on Plaintiffs' argument during the hearing, it appears the process could be attempted before the next statewide election cycle. If not, then by that time there would presumably have been a trial on the merits, and the Court could craft its own 'remedial plan' if necessary."
Plaintiffs' attorneys said Mississippi's history of racially polarized voting means that candidates preferred by black voters must receive a higher share of the statewide vote to win a majority of House districts.
Jordan wrote he has "grave concern that at least the Electoral-Vote rule is unconstitutional."
One of the plaintiffs' attorneys, Rob McDuff of the Mississippi Center for Justice, also noted that Jordan said the electoral vote rule eventually could cause "irreparable harm."
"If the electoral vote rule is triggered this time around and puts the House of Representatives in a position to decide the election, it is possible the judge would declare it unconstitutional and require that the candidate with the most (popular) votes be declared the winner," McDuff said.
Jordan wrote Friday that he would issue a separate order on state officials' request that he dismiss the lawsuit.
No other state in the U.S. uses such a method to choose governor, and it's rare for a race to be decided by the Mississippi House. That last happened in 1999, when nobody received the required majorities in a four-person race for governor. The top two candidates were white, and each won 61 electoral votes. House members chose the Democrat who had received the most votes. At the time, the House was controlled by Democrats. It is now controlled by Republicans.
The two major-party nominees for governor this year are Republican Lt. Gov. Tate Reeves and Democratic Attorney General Jim Hood. Both are white, but Democrats generally fare well among black voters and Republicans among white ones.
The lawsuit was filed May 30 against two Republican officials — Secretary of State Delbert Hosemann, who is Mississippi's top elections officer, and House Speaker Philip Gunn, who would preside if there's a House vote to decide a statewide race.
Eric Holder, who was the first African American to serve as U.S. attorney general, is now chairman of the National Democratic Redistricting Committee, whose affiliated foundation is providing financial and legal backing for the lawsuit.
When Jordan heard arguments Oct. 11, he said few federal court rulings have provided clear guidance for how he should decide the case and whether a constitutional violation would occur when voters cast ballots or at some point later in the process.
Jordan raised questions about the timing of the case that challenges a system in place nearly 130 years, and he said courts are "generally ill-equipped" to decide what kind of voting laws a state should have.
"No matter what I do, I would encourage the other side to appeal immediately," Jordan said during the Oct. 11 hearing.
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