Virtually every state in the Union elects its governor and other statewide offices by popular vote. Mississippi does something different. First, a candidate must win a majority of the statewide popular vote. Second, they must also win a plurality of the vote in a majority of Mississippi House of Representatives districts. If a candidate does both, they win. If they don’t, the Mississippi House chooses the winner. As with the Electoral College, the popular vote in Mississippi only matters until it doesn’t.
In May, four black Mississippians represented by voting-rights groups filed a federal lawsuit against the state to challenge the second requirement. That “electoral-vote rule,” as they called it, “creates a system in which white-preferred candidates can win a majority of House districts with a smaller percentage of the statewide popular vote than would be required of an African-American-preferred candidate.” The lawsuit claims it violates the Voting Rights Act of 1965, the Fourteenth Amendment, and the “one-person, one-vote” rule.
The plaintiffs are unequivocally correct that the system—which does not apply to U.S. senator elections—was designed to suppress their electoral power. And yet they might still lose. Earlier this week, the state argued that the lawsuit should be dismissed under two recent Supreme Court cases on partisan gerrymandering. The lawsuit—and Mississippi’s response to it—shows how these Roberts Court rulings are already being wielded in defense of antidemocratic systems.
More than a century ago, Mississippi structured its statewide elections in this way to preserve white supremacy. The state’s white leaders adopted the electoral system when they redrafted the state constitution in 1890. They ditched the charter drafted during Reconstruction to protect multiracial democracy and replaced it with one designed to suppress black political power. Every weapon in Jim Crow’s arsenal was deployed: The new constitution imposed literacy tests, poll taxes, criminal disenfranchisement provisions, and more.
Though black voters outnumbered white voters in the state at the time, the 1890 constitution apportioned the state legislature to guarantee a majority of seats would be held by white lawmakers. That apportionment also affected the statewide election plan: Even if a black-supported candidate received a majority of votes, it would be almost impossible for him to clinch victory by also capturing a majority of the state House of Representatives districts. Lawmakers in those districts would then be able to elevate the second-place candidate to the governor’s mansion.
Mississippi’s white leaders did not disguise their intentions. “There is no use to equivocate or lie about the matter,” James K. Vardaman, one of the constitution’s framers as well as a future governor and senator, once boasted. “Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the nigger from politics.”
The effects were startling. In a 1965 federal voting-rights case against the state, the U.S. Supreme Court noted that 50 percent of qualified black Mississippians were registered to vote before the new constitution’s adoption. By 1899, that number had dropped to 5 percent. “Amite County, Mississippi, the registrar of which was one of the defendants here, had a white voting age population of 4,449 with white registration of 3,295, while it had 2,560 colored persons of voting age, of whom only one was a registered voter,” Justice Hugo Black wrote for the court, citing a Justice Department filing. “There is no need to multiply examples.”
The Warren Court and the civil rights movement swept away poll taxes and literacy tests in the 1960s. But Mississippi’s statewide election system endured, as did its structural biases. “Due to racially polarized voting and the geographic and electoral concentration of the racial groups among the House districts,” the plaintiffs in the recent lawsuit told the court, “a white-preferred candidate does not even need to win a majority of the popular vote to win a majority of the House districts, while an African-American-preferred candidate must obtain at least 55 percent of the popular vote to win a majority of House districts and thus satisfy the Electoral-Vote Rule.”
Mississippi did not challenge the plaintiffs’ assertions about history. Instead, it argued they had no right to bring the case at all, telling the court that the plaintiffs lacked legal standing to bring the case because they had not proved that the system would injure them as individuals. “That allegation is the epitome of a generalized grievance over which the Court lacks jurisdiction,” Mississippi told the court. The state relied on the Supreme Court’s ruling in Gill v. Whitford last year, where the justices returned to the lower courts a challenge to Wisconsin’s gerrymandered state legislative maps.
When the court first agreed to hear Gill and a similar case, many observers expected the justices would clarify whether and how the federal courts should intervene in cases of extreme partisan gerrymandering. Instead, they told the lower courts to reconsider whether the plaintiffs had each been harmed by the Wisconsin gerrymander. “[The plaintiff’s case is] about group political interests, not individual legal rights,” Chief Justice John Roberts wrote for the majority. “But this Court is not responsible for vindicating generalized partisan preferences. The Court’s constitutionally prescribed role is to vindicate the individual rights of the people appearing before it.”
This conceptualization of gerrymandering doesn’t make sense if you think about it for more than five minutes. Wisconsin’s challenged map warped the entire state legislature in favor of Republicans, a clear aggregate effect that might not be apparent in each district in isolation. Nonetheless, Roberts’s words gave Mississippi the ammunition it needed. “Plaintiffs allege no facts to show that they live in ‘cracked’ or ‘packed’ districts,” the state argued, citing language from Gill. “Thus, the court should not allow Plaintiffs to pursue this ‘case about group political interests’ because Plaintiffs do not allege the abridgment of any individual legal rights and the Court is ‘not responsible for vindicating generalized partisan preferences.’”
On the allegation that the system violated the “one-person, one-vote” rule, Mississippi turned to the Supreme Court’s most recent decision on partisan gerrymandering for help. “That is nothing more than a partisan gerrymandering claim over which the Court has no jurisdiction,” the state argued, citing last month’s ruling in Rucho v. Common Cause. That case decided what the ruling in Gill had only delayed. Chief Justice John Roberts, joined by the other four conservative justices, held that the federal courts lacked the power to remedy cases of partisan gerrymandering.
Mississippi drew upon Roberts’s language at length to question the idea that this year’s statewide elections would fall along the racial lines described by the plaintiffs. “Voters elect individual candidates in individual districts, and their selections depend on the issues that matter to them, the quality of the candidates, the tone of the candidates’ campaigns, the performance of an incumbent, national events or local issues that drive voter turnout, and other considerations,” Roberts wrote in Rucho. “Many voters split their tickets. Others never register with a political party, and vote for candidates from both major parties at different points during their lifetimes.” Citing those words, Mississippi argued that it is “impossible to predict how and why voters act.”
The plaintiffs disagreed. They argued that the state’s electorate is “highly racially polarized,” with black voters overwhelmingly voting Democratic and white voters overwhelmingly voting Republican. “For example, in the two U.S. Senate elections in Mississippi in 2008, African-American voters supported the Democratic candidates by an estimated 90 percent, and white voters supported the Republican candidates by an estimated 81 percent to 90 percent,” they told the court. “The results of the most recent gubernatorial race further demonstrate this division. There, Republican candidate Phil Bryant defeated Democratic candidate Robert Gray by prevailing in every single one of the 80 majority-white House districts.” Since only roughly one-third of districts are majority-black, the average Democratic candidate will find it much harder to win a race than the average Republican candidate, even if he or she wins the popular vote.
If the courts can’t intervene, what’s left for Mississippi voters to do? In Rucho, Roberts wrote that voters could turn to other mechanisms to remedy structural problems like partisan gerrymandering. He pointed to two avenues for change. One was congressional action—but the Constitution’s federalist structure likely prevents Congress from changing how states hold nonfederal statewide elections. The other was by ballot initiative. In Mississippi, signatures on initiative petitions must be evenly distributed among the five congressional districts as they existed after the 1990 census. That leaves amending the state constitution by a two-thirds vote in both houses of the legislature. In short, in order to change the statewide election system, reformers in Mississippi would need the assent of those who benefit the most from it.
Anyone with a page of history and a volume of logic, to paraphrase Justice Oliver Wendell Holmes, can understand why Mississippi’s statewide election system exists: to give an electoral edge to candidates preferred by white voters over those preferred by black voters. But the Roberts Court’s rulings on structural democracy ask that judges look away from what’s right in front of them. Voters are treated as atomized participants in the democratic process, so that systemic disenfranchisement can be dismissed as mere supposition. Historical and political trends are politely ignored, and so are their effects. The result does not guarantee white supremacy on its own, but it makes white supremacy considerably harder to fight.