When Mississippians go to the polls Tuesday, they will have the opportunity to do something they have never done on their own — remove a Jim Crow-era provision from the state’s 1890 Constitution designed to prevent African Americans from holding office.

Language in the Constitution mandates candidates running for the eight statewide offices must garner a majority of the vote and win the most votes in a majority of the 122 House districts. Under the constitutional provisions, if no candidate is able to do both, the election is thrown to the House to decide between the top two vote-getters.

Other Jim Crow provisions of the 1890 Constitution, such as the poll tax, literacy test and separate but equal school districts were found unconstitutional by federal courts or banned by federal law, but were not removed from the Constitution by Mississippi voters until years later.

In regards to the elections being thrown into the House, often called Mississippi’s version of the electoral college, a lawsuit was filed in 2019 challenging the constitutionality of the process. In response to the lawsuit, U.S. District Judge Daniel Jordan of the Southern District of Mississippi indicated that if the state did not remove the provision he might be forced to do so. Mississippians will have an opportunity Tuesday to act before possibly being forced to by a federal judge.

No other state has provisions that would prevent the person garnering the majority of the vote from being seated. If voters approve the change to the Constitution, the state will still be outside of the mainstream in terms of electing candidates. Most states – 46 – require a candidate for statewide office to win only a plurality of the vote. The provision Mississippians are voting on would mandate a runoff among the top two vote-getters if no candidate garners a majority of the vote.

The 2019 lawsuit alleged the process of throwing the elections into the House dilutes Black voter strength. Black Mississippians are more likely to vote for the Democratic candidate, but because House districts are drawn to maximize the number of Republicans serving in the House, it is difficult for Democratic candidates to win the most votes in a majority of the House districts, the lawsuit claimed.

The language was placed in the Constitution in 1890 at a time when African Americans were a majority in the state. The lawsuit cited a volume of the Mississippi Historical Society as saying the Constitution was written in 1890 in a manner to ensure 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.”

In the 1990s,  three races were thrown into the House. In two elections for lieutenant governor, the losing candidate — Brad Dye in 1991 and Eddie Briggs in 1995 — asked the House to select the candidate who won the most votes. In 1999, Republican Mike Parker, who lost the popular vote, unsuccessfully took the election to the House where Democrat Ronnie Musgrove, who garnered the most votes, was elected by the representatives.

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