A lawsuit over a Mississippi election law, if successful, will change the way that state elects its governor.
Four African Americans filed the federal civil rights lawsuit in May 2019, charging that the way their state elects its statewide officials violates the Voting Rights Act, the 14th Amendment and the principle of “one-person, one-vote.”
To win the election, a candidate for governor of Mississippi has to win an outright majority of the popular vote – and win a majority of the state’s 122 House districts.
If no candidate does both, the state House gets to select the next governor, regardless of who got the most votes. No African American has been elected statewide since 1890.
Republican legislators in Mississippi defended the law by arguing that the plaintiffs provide “nothing more than conjecture” that they would be harmed by this election method.
Media coverage of the lawsuit has emphasized that “no Mississippi candidate who won the most votes for a statewide office has been prevented from taking office because of the other requirements.”
As a historian of 19th-century voting rights in the U.S., I believe this analysis ignores the history of anti-democratic gubernatorial election laws.
Today, Mississippi is one of only two states where the winner of the popular vote does not automatically become governor. Vermont is the other. In the 19th century, however, many states had such laws.
The damage that these laws did to democratic legitimacy and political stability in the 1870s, ‘80s and ’90s was not conjecture. These laws were intended to entrench the rule of the party in power.
This November, Mississippi is preparing for its first close gubernatorial election since 1999. The election law that is the focus of the lawsuit could decide who wins. Its origins and the track record of similar laws in more competitive states bear investigation.
Disenfranchisement by law
The Southern Democrats in charge of the convention were intent on removing African Americans from politics. The constitution they crafted subjected prospective voters to a literacy test and poll tax – effectively disenfranchising nearly all African Americans.
They included the majority vote and state House district provision in the constitution as a backstop to preserve white control of Mississippi. However, voter suppression and a racially polarized electorate have produced few competitive elections in Mississippi, ensuring that the backstop has rarely been necessary.
In the 19th century, many states with similar election laws had much more competitive elections. The bad results these laws produced in close contests demonstrate the worst-case possibilities of Mississippi’s system.
The crowbar governor
These anti-majoritarian laws in governors’ races caused what legal scholar Edward B. Foley termed “a veritable epidemic” of crises during the Gilded Age.
In West Virginia (1888), Rhode Island (1893) and Tennessee (1894), partisan legislatures overruled the voters to install governors in office who had failed to win the most votes.
The 1890 drama in Connecticut provides the worst example of these laws in action.
Democratic candidates running for governor won the most votes in every Connecticut election during the 1880s. But with multiple parties running, they never captured a majority. The legislature, gerrymandered to favor the Republicans, installed their candidates in office 4 out of 5 times, even though they never even won a plurality.
In 1890, the Connecticut legislature was evenly divided between Republicans and Democrats. That year’s gubernatorial election was thrown to the legislature. Deadlock ensued. In a three-way race, where the Democrat had won nearly 4,000 more votes than his Republican opponent, Republicans in the state Senate refused to seat him.
Though the Democrats held the moral high ground, the Republicans had the election law on their side. With the stalemate, the sitting Republican governor, Morgan G. Bulkeley, who had not even run for re-election, simply stayed in office for two more years.
While Bulkeley’s supporters commended him for stepping in to “hold the fort,” his unelected tenure provoked a crisis of legitimacy that ground state government to a halt.
When the legislature refused to appropriate funds for the state budget, Bulkeley borrowed $300,000 ($8.3 million today) from his family’s company – Aetna Life Insurance – to pay for state operations. Neighboring states refused to acknowledge the legality of arrest warrants he issued. At one point, the Democrats changed the locks on the governor’s office and Bulkeley popped them off with a crowbar.
“Nothing short of a revolution,” said the disgusted governor of New York, could end the tyranny of the minority in Connecticut.
But Bulkeley’s methods had damaged the Republican Party’s reputation. In the regularly scheduled 1892 election, the Democrat who had won the most votes in 1890, Luzon B. Morris, won an outright majority and became governor.
The hero of Gettysburg
In Maine in 1879, a similar election law came close to provoking a civil war.
The sitting Democratic governor, Alonzo Garcelon, placed a distant third in the election, behind the Republican and Greenback candidates. Because no one won an outright majority, the new legislature, which Republicans expected to control, would decide the winner.
As the incumbent, however, Garcelon had power over certifying the legislative election results. Using every trick in the book, Garcelon’s cronies overturned enough election results to give his allies control of the new legislature.
The state’s supreme court ruled his actions illegal, but Garcelon ignored them and seated his illegitimate legislature, hoping they would vote to re-elect him governor.
Bands of armed Mainers from both sides of the dispute began gathering in the capital. Only the intervention of Civil War hero and former Maine Gov. Joshua Chamberlain averted bloodshed. Chamberlain, head of the state’s militia, refused to take sides. When a group of Garcelon’s supporters pushed into Chamberlain’s office, he opened his shirt and dared them to do what the rebels had failed to at Gettysburg.
The supreme court again ruled that the Republicans had the right to organize the legislature and appoint the governor. For two more weeks Garcelon refused to back down, but when Chamberlain publicly accepted the court’s decision and sided with the Republicans, the crisis came to an end.
Maine quickly amended its constitution to permit governors to be elected with only a plurality of the vote.
Bad track record
If the civil rights lawsuit against the gubernatorial election process succeeds, it will mark a repudiation of Mississippi’s legacy of racial disfranchisement.
If it does not succeed, then Mississippi’s legislature and governor might want to consider the examples of Connecticut in 1890 and Maine in 1879.
Laws that place anti-democratic restrictions on the popular vote have a bad track record in competitive elections. At best they add unnecessary complexity and instability to what should be a simple system.
At worst they undermine the principle of popular rule, damage voters’ faith in democracy and provoke crises of legitimacy.