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 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.
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.
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.
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.
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.
The months ahead of midterm elections, often a time of lower turnout among African-Americans and others, have become a focus of passionate activity by black Christian leaders.
“The attacks on the Voting Rights Act and other setbacks in civil rights have alerted the faith community that we need to take action,” said the Rev. Barbara Williams-Skinner, co-chair of the National African American Clergy Network. “We need to be proactive and not reactive.”
It’s been five years since the Supreme Court invalidated a key provision of the VRA, and voters in almost two dozen states face stricter rules. In response, black denominations and networks focused on people of color and the poor are gearing up in hopes of getting more people to the ballot box in November:
This week, leaders of the African Methodist Episcopal Church plan to continue their “AME Righteous Vote” initiative with mobilization briefings, Capitol Hill meetings and a “Call to Conscience” vigil at Lafayette Square across from the White House.
Faith in Action, the grassroots organization formerly known as PICO National Network, hopes to reach more than a million people in 150 cities with phone calls and door-to door visits before Election Day on Nov. 6.
A “Lawyers and Collars” program co-led by the Skinner Leadership Institute and Sojourners plans to train clergy on voter protection, hold meetings with state elections officials and spend Election Day at the polls with lawyers to assist voters.
Stricter rules at polling places — such as ID laws — could lead to people being turned away on Nov. 6. Pastors and other leaders can serve as advocates on their behalf, said Williams-Skinner, who is also CEO of the Maryland-based institute.
Willie Barnes II and Marlaa MeShon Hall Reid participate in an AME #RighteousVote Empowerment Seminar in Atlanta on June 25, 2018. Photo courtesy Bishop Frank M. Reid III
“We’re saying that vulnerable voters need to have protection and we believe that the most respected leaders (and) the influential stakeholders should be there,” she said. “As they stand in line with people, people will stay in line no matter what happens.”
Before its Washington-area activities this week, the AME Church held an “annual empowerment seminar” in June in Atlanta to encourage its leaders to be involved in educating prospective voters in the upcoming elections. In one announcement, Bishop Frank M. Reid III, chair of the denomination’s Social Action Commission, stressed the need for turnout “in this important spiritual and political season.”
In an interview, Reid explained that the call to elective action relates directly to the desire of church members to address social justice issues.
“We’re concerned about voter registration and voter turnout because without those things we cannot make America fair for the elderly who need affordable health care, our children, especially poor children,” he said, “who in the past received health care and food.”
Likewise, Faith in Action is talking with prospective voters about issues they care about, from the alleviation of poverty to mass incarceration. As the midterms near, the network is partnering with historically black denominations and justice-centered evangelical organizations to focus on minority communities that generally get little attention in get-out-the vote efforts.
“Our work is really about making sure that our communities have access to resources, to skills, to tools that can maximize the vote,” said the Rev. Michael McBride, director of Faith in Action’s Live Free campaign.
Although pre-election activity is reaching a new volume with the election just two months away, some groups shone attention on the issue earlier in the year.
At the annual convention of the Rev. Al Sharpton’s National Action Network in April, U.S. Rep. G.K. Butterfield, D-N.C., was among the speakers on a panel about the black church and voter mobilization. He explained that congregants can’t knock on doors as representatives of their congregation and advocate for a particular candidate. But they can be involved in a range of nonpartisan activities.
“If the church is engaged in a get-out-the vote effort, you can use a church van, church bus, church resources as long as it’s not a partisan activity,” said Butterfield, a lifelong Baptist who co-moderated the panel featuring clergy and political action committee leaders.
Church of God in Christ Bishop Talbert Swan, who was one of the NAN panelists, said in a recent interview that the changes in voting rules that often affect African-American communities — such as reductions in early voting opportunities — have made the initiatives more necessary.
“I think there’s a renewed sense of urgency because it seems that the nation is trying to go back to a time prior to voting rights of African-Americans,” said Swan, who cited the Supreme Court’s nullification of a key provision of the VRA. “While it’s still on the books, we essentially right now don’t have a Voting Rights Act, which is the reason why states across the nation can opt to put in place voter suppression regulations and laws.”
Bishop Talbert Swan, the leader of the Church of God in Christ’s Nova Scotia jurisdiction, addressed a summit of the Seymour Institute for Black Church and Policy Studies at the Museum of the Bible in Washington, D.C., on Aug. 21, 2018. RNS photo by Adelle M. Banks
The Rev. Kelly Brown Douglas said that in the past, the Supreme Court was seen as an ally, handing down dramatic civil rights court decisions, such as the Brown v. Board of Education ruling that declared school segregation unconstitutional.
Now, she said, with the Supreme Court turning more conservative, congressional races are crucial.
“Particularly when we talk about civil rights and people of color and African-Americans, our progress has come because we’ve had the court on our side,” said Douglas, dean of the Episcopal Divinity School and canon theologian of Washington National Cathedral. “We don’t have that. We’ve lost that.”
Black Protestants made up 7 percent of voters in the 2016 election, according to Pew Research. Ninety-six percent voted for former Secretary of State Hillary Clinton, while only 3 percent voted for Donald Trump.
The Rev. Kelly Brown Douglas, dean of New York’s Episcopal Divinity School and canon theologian of the Washington National Cathedral, at the Poor People’s Campaign rally in Washington on June 23, 2018. RNS photo by Adelle M. Banks
Overall, African-Americans made up 10 percent of voters, according to Pew. Ninety-one percent supported Clinton, while 6 percent supported Trump. Pew also reported their turnout was down compared with the 2012 election.
But, citing how the black faith community was credited with helping defeat Roy Moore in his bid to become an Alabama senator, Douglas said it is possible to have successful get-out-the vote campaigns that remain nonpartisan.
“You don’t have to tell people who to vote for,” she said. “You don’t have to be partisan. You just have to tell them to vote and you trust your constituency.”
U.S. Attorney General Eric Holder promised to uphold voting rights in his keynote address this morning at the Conference of National Black Churches annual meeting in Washington D.C. The three-day event is being held in conjunction with the Congressional Black Caucus and focuses on issues of concern to members of the nation’s nine largest African American denominations.
The Attorney General promised to defend the Voting Rights Act of 1965, especially Section 5, which requires Justice Department clearance before changes can be made to voting laws in Southern states and those that have a history of disenfranchising Black voters.
“This process, known as ‘preclearance,’ has been a powerful tool in combating discrimination for decades. And it has consistently enjoyed broad bipartisan support – including in its most recent reauthorization, when President Bush and an overwhelming Congressional majority came together in 2006 to renew the Act’s key provisions – and extend it until 2031. Yet, in the six years since its reauthorization, Section 5 has increasingly come under attack by those who claim it’s no longer needed,” said Holder.
He also said that between 1965 and 2010, only eight challenges to Section 5 were filed in court, but in the last two years there have been “no fewer than nine lawsuits contesting the constitutionality of that provision.” Each challenge “claims that we’ve attained a new era of electoral equality, that America in 2012 has moved beyond the challenges of 1965, and that Section 5 is no longer necessary,” he said, adding that “nearly two dozen new state laws and executive orders” enacted in more than a dozen states “could make it significantly harder for many eligible voters to cast ballots in 2012.”
“We’re now examining a number of redistricting plans in covered jurisdictions, as well as other types of changes to our election systems and processes – including changes to the procedures governing third-party voter registration organizations, to early voting procedures, and to photo identification requirements – to ensure that there is no discriminatory purpose or effect. If a state passes a new voting law and meets its burden of showing that the law is not discriminatory, we will follow the law and approve the change. And, as we have demonstrated repeatedly, when a jurisdiction fails to meet its burden of proving that a proposed voting change would not have a racially discriminatory effect – we will object, as we have in 15 separate cases since last September,” said Holder.
The Attorney General also promised to protect the voting rights of military personnel and other Americans living abroad, as well as veterans, citizens with disabilities, college students, and language minorities at home, but said “no form of electoral fraud ever has been – or ever will be – tolerated by the United States government.”
Coincidentally, in a statement published by The Hill today, Rep. John Conyers (D-Mich.) and Rep. Robert Brady (D-Pa.), the ranking members of the Committees on the Judiciary and House Administration, announced that they were joining other Democrats in introducing the Voter Empowerment Act, which they say “protects the integrity of elections by improving eligible voters’ access to the ballot box” by modernizing voter registration, “automatically and permanently enroll consenting eligible voters,” providing for online registration, allowing same day voter registration at the poll, and simplifying the registration process for members of the military serving overseas, among other things.
What do you think?
Are voting rights in danger or are Democrats engaging in “get out the vote” scare tactics?
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