As we’ve written before, Mississippi’s 1890 state constitution contains a Jim Crow-era provision that requires gubernatorial candidates to win both a majority of the statewide vote and a majority of the 122 districts that make up the state House; if someone fails to hit both of these benchmarks, the state House picks the new governor from the top two finishers. Mississippi Today’s Bobby Harrison has now taken a deeper look at how this law has played out recently, noting that it in fact applies to all seven of the state’s cabinet offices, not just the governorship.
It turns out that Mississippi hosted three straight elections in the 1990s in which a statewide candidate failed to capture dual majorities. However, in each case, the ultimate winner was the person who won the most votes.
The first time this provision was invoked was in the 1991 election for lieutenant governor, where Republican Eddie Briggs won 49.5 percent of the vote—just shy of a majority—while Democratic incumbent Brad Dye took just under 42 percent (a third candidate finished with 9 percent). While Dye’s fellow Democrats controlled the state House (the GOP would only take charge after the 2011 elections, for the first time since Reconstruction), he sent legislators a letter conceding the contest to Briggs.
Four years later, Briggs lost re-election to Democrat Ronnie Musgrove 53-47. But while Musgrove won a majority of the vote, he didn’t win a majority of state House seats. However, Briggs, like Dye before him, conceded the race, handing victory to Musgrove.
Musgrove then ran for governor in 1999, narrowly outpacing Republican Mike Parker by a slim 49.6-48.5 spread. In a remarkable twist, each candidate won exactly half of the state’s 122 House districts. But unlike Dye and Biggs, Parker did not concede defeat, and the matter went before the state House. The chamber, which was still firmly in Democratic hands at the time, elected Musgrove, with legislators arguing it was only fair to select the candidate who had won the most votes.
Unfortunately, Magnolia State Democrats didn’t take advantage of this opportunity to change the law when they still could. During the era of Republican control that began in 2012, the GOP has shown no interest in excising this anti-democratic section of the state constitution. Over the years, Democratic legislators have proposed bills that would ensure whichever candidate wins the most votes wins office, but these efforts have gone nowhere. Harrison writes that Democratic state Sen. David Blount has proposed similar legislation this year, but it’s also likely to die without action.
State Democrats may hold out hope that, if one of their statewide candidates earns more votes than the Republican but fails to win either a majority or at least 62 House districts, the GOP-led state House would just bow to the popular will and pick the Democrat. However, there’s very good reason to doubt the Mississippi Republican Party would pass on the opportunity to select one of their own, regardless of what voters want.
In a 2015 race for the state House, final election returns showed Democratic state Rep. Bo Eaton and Republican rival Mark Tullos each taking 4,589 votes. State law requires that, in the event of a tie, the winner is chosen in a game of chance. Eaton went on to draw the long straw, which should have ended the matter right then and there.
However, state House rules permitted Tullos to challenge the outcome, even without any basis. Tullos made some claims for appearances' sake, and they were entirely bogus: He said five affidavit votes shouldn't count because voters had moved (yet still lived in the district) but failed to notify election officials. Those same officials didn't agree that this was a problem, though, since they’d certified the election results, as did the secretary of state.
But House Republicans didn't care, because adding Tullos to their caucus would have given them the three-fifths supermajority they needed to rewrite tax laws without a single Democratic vote. They blithely proceed to voted to seat Tullos, even though he’d lost the tiebreaker. Eaton proposed that a new election be held, but his idea was met with silence. Several voters did file a lawsuit, but in 2018―a full two years after Tullos was seated―a federal appeals court rejected it, saying it lacked jurisdiction to hear the matter.
That incident was a prime example of how Mississippi Republicans, like their brethren nationwide, will find a way to use whatever power they already have to keep or acquire more, public perception be damned. And the stakes in the Eaton-Tullos race were a whole lot lower than a gubernatorial contest would be. If a Democrat did win the most votes in a race for governor but it was still up to the state House to pick a winning candidate, it’s unlikely the GOP would just do the right thing when they could keep the state’s top job in their column.
And there’s a decent chance this scenario could come to pass this very year. Team Blue’s likely nominee is Attorney General Jim Hood, who for the last 11 years has been the only Democrat to hold statewide office. But while Hood is almost certainly the strongest candidate Democrats could field, the GOP-drawn state House map makes it very difficult for a Democrat to win a majority of state House districts unless they’re already winning a popular vote landslide. The 1890 law was explicitly designed to undermine the power of black voters—the same voters who now make up much of the Democratic base in Mississippi—and it might do just that once again.
Some observers have argued that this law, while still on the books, would either go unenforced or simply be unenforceable. However, that’s far from guaranteed, especially since it’s come into play as recently as 1999 in the Musgrove-Parker race. Since Mississippi Republicans aren’t in any hurry to repeal this racist relic of the Jim Crow era, the only way for voting rights advocates to defang it is to challenge it in court now—before it’s too late.
Want more great elections coverage like this? Sign up for our free daily newsletter, the Morning Digest.
