Examining Federal Court Power in the Challenge to Mississippi’s Regime for Electing Governors: Part Two in Series

Posted in: Election Law

As we explained in a column a few weeks ago, Part One in a series, an important federal lawsuit challenging Mississippi’s scheme for electing governors is wending its way through the federal courts.  Unique among the states, Mississippi requires a successful candidate in gubernatorial elections to win both: 1) a majority (rather than just a plurality) of statewide votes; and 2) a majority of the Mississippi House of Representatives districts. If no candidate satisfies both of these requirements, the state House of Representatives selects the governor from the two top popular-vote getters.  The complaint filed in federal district court a few months back alleges that the Mississippi system, which was added to the Mississippi constitution in 1890, violates the federal constitutional rights of the plaintiffs, who are individual African American registered voters in the state. In particular, the plaintiffs contend that Mississippi’s system was intended to and does indeed harm African American voters, who make up a large group (but still a minority) of Mississippi voters, in several ways. First, because African American voters (and white voters too) often engage in bloc voting, the requirement (the so-called “Popular Vote Rule”) that a successful candidate win a majority of the popular votes—rather than simply more than any other candidate—makes it hard for a minority group like African Americans to elect the candidate of their choice. Moreover, because the state’s African American population is not distributed evenly throughout the state but is concentrated in a relatively small number of House districts, the requirement (known as the “Electoral Vote Rule”) that a winning candidate prevail in a majority of House districts across the entire state hurts African Americans (and also Democrats). Relatedly, even putting aside invidious racial intent, plaintiffs assert that the Electoral Vote Rule violates the one-person, one-vote principle the Supreme Court has recognized for legislative elections, insofar as someone could win a majority of state House districts but get far fewer votes than her opponent statewide.  For these reasons, say plaintiffs, Mississippi’s regime violates the Fourteenth and Fifteenth Amendments. (The plaintiffs further assert that the Mississippi scheme violates the federal Voting Rights Act, but we focus only on the constitutional claims.)

In today’s column, Part Two in our series, we do not yet delve into the merits of the Fourteenth and Fifteenth Amendment claims (we save that analysis for Part Three), but we examine a few important procedural and jurisdictional issues the lawsuit presents.  In particular, we address why plaintiffs have standing to sue in federal court, and also discuss what remedies a federal court might provide if it agrees with the plaintiffs on the merits.

Are Claims Like Those Raised by the Plaintiffs Justiciable in Federal Court?

First, let’s take up plaintiffs’ ability to sue in federal court.  The power of federal courts under Article III of the federal Constitution to adjudicate claims of vote dilution has been a topic of substantial discussion at the Supreme Court in a pair of prominent cases the past few years.  In Gill v. Whitford (2018), a unanimous Supreme Court rejected a claim of excessive partisan gerrymandering brought by members of the Democratic party in Wisconsin on the ground that the plaintiffs, who claimed their votes were unconstitutionally diluted when the Wisconsin legislature “cracked and packed” Democrats into a relatively small number of election districts (leaving a large number of districts with a comfortable Republican majority), failed to adequately allege that they resided in the districts that were alleged to be manipulated.  A year later (this past summer), the Court (this time by a 5-4 vote), in Rucho v. Common Cause (2019), rejected a similar claim of unconstitutional partisan gerrymandering, but this time on the ground that such claims are simply not justiciable in federal court (on account of the so-called “political question” doctrine.)  As one of us has written, the best reading of Rucho is simply that the federal Constitution does not limit partisan gerrymandering—there is no federal constitutional law to apply—so that any claims that partisan gerrymandering is illegal must come from state law or federal statutes. In any event, whether it be because of standing or political question doctrine, some observers may think that a federal court lacks authority to resolve plaintiffs’ constitutional claims in the Mississippi case.

We think such concerns would be misplaced, and that under well-established doctrine federal courts easily have power to adjudicate the Mississippi plaintiffs’ claims.  Unlike the claims in Rucho, claims that a state has enacted a law in order to disadvantage black voters directly implicates the Fourteenth and Fifteenth Amendments—there is clearly constitutional law to apply—so the political question problems in Rucho simply aren’t present.  So too, the claims that Mississippi’s regime violates the one-person, one-vote principle fits neatly within past cases in which the Supreme Court has invoked the Fourteenth Amendment to protect intrastate voter equality.

As to standing, black voters clearly are the appropriate plaintiffs to challenge election schemes that are consciously designed to harm black voters. For example, consider Rogers v. Lodge, where black voters challenged an “at-large” voting system that make it harder for minorities to elect candidates of their choice to multi-member legislative bodies, compared to the success minority groups might have if members were elected separately from each geographical district.  As the Court observed (and seemed to take judicial notice of) in Rogers:

A distinct minority, whether it be a racial, ethnic, economic, or political group, may be unable to elect any representatives in an at-large election, yet may be able to elect several representatives if the political unit is divided into single-member districts. The minority’s voting power in a multimember district is particularly diluted when bloc voting occurs and ballots are cast along strict majority-minority lines.

Thus, black voters can claim injury (for standing purposes) from voting schemes that may disadvantage their ability to elect their preferred candidates.  (For similar reasons, plaintiffs would have standing to challenge alleged violations of the one-person, one-vote principle.)

Even if one were to question whether the Mississippi regime in fact hurt black voters, the plaintiffs’ claims that is was intended to do so might itself suffice for standing purposes.  As the Court made clear in Brown v. Board of Education, psychological stigma is an injury that counts for equal protection purposes, and if the state of Mississippi intended to diminish black citizens’ political power (whether or not such attempts were successful), the mere fact of that bad intent—combined with the fact that the intent is publicly discernible (as it must be if it could be proved in litigation)—would create unconstitutional stigma on the part of black Mississippians.

So we think federal courts have power over plaintiffs’ claims.  But what kind of remedy could they provide if they conclude plaintiffs succeed on the merits?  As we noted last time, Judge Jordan found that the plaintiffs were ultimately likely to win on the merits, but he nonetheless denied the plaintiffs’ motion for a preliminary injunction to block use of the challenged state constitutional provisions before last month’s election. In reaching this decision, Judge Jordan reasoned that until an election actually resulted in no candidate winning a majority of the votes and a majority of districts such that the House’s role was actually triggered, an injunction would be too disruptive and was thus premature. Central to Judge Jordan’s decision was his view that a state should have an opportunity to correct a defective voting system before a federal court tries to fashion a remedy, given that there exist several alternative methods for electing a governor and Mississippi was (the judge believed) better positioned than a court to choose from among the options. Were the court to issue an injunction, he asked rhetorically, “What would the remedial plan look like?”

Although he denied plaintiffs’ motion for a preliminary injunction prior to the election, Judge Jordan signaled that he would intervene if the outcome of the election meant that the choice of governor shifted to the Mississippi House. In that scenario, he wrote, “the case would likely proceed to an expedited trial on the merits.” In the course of his analysis, Judge Jordan flagged two other considerations. First, there had never been a gubernatorial election in Mississippi that had ended up in the House and in which the House installed as governor a candidate finishing in second place in the popular vote count. It thus seemed a good bet that no such outcome would occur in 2019 either. Second, Judge Jordan reasoned, although the plaintiffs had alleged an injury, their injury would be weightier—“far more tangible” he wrote—should the election results require the House to get involved.

Courts should, of course, act with particular care before issuing injunctions in election cases. But we think Judge Jordan’s analysis misses the mark. The wait-and-see approach he adopted carries its own risks and it is insufficiently attentive to the constitutional claims at stake and the role of federal courts in enforcing federal requirements.

In our view, Judge Jordan’s starting point was flawed (and it’s hard to get to the right place when your first step is wrong). His prediction that the election would probably not end up in the House was reasonable enough but also largely irrelevant. Whether there was a likelihood that the challenged provisions would or would not be triggered seems to us beside the point. Those provisions are part of the system the state has adopted for choosing its governor. Gubernatorial candidates campaign—and voters vote—with those provisions in place. They are not doomsday measures that can be safely kept far from mind.  But even if it makes sense to treat the challenged provisions as irrelevant until triggered, it is hard to see that enjoining them would create undue disruption. Instead, the opposite conclusion seems just as likely. If, as Judge Jordan thought, the election was not likely to require a role for the House, then an injunction blocking Mississippi’s scheme under which the House could decide the election would create no disruption at all.

But putting all this to one side, the bigger problem with Judge Jordan’s approach is his notion that intervention after the votes are in and counted is preferable to a remedy before the voters have spoken. Whatever the disruption a pre-election injunction creates, it is small compared to a court stepping in after votes have been cast and counted such that a judicial ruling determines which real live person will be installed in office.  (Remember Bush v. Gore?)

Moreover, disruption is the right thing if it means remedying a constitutional injury. For the reasons we have explained above, the plaintiffs’ injury is not dependent upon the election actually being decided in the House. The availability of redress should not therefore turn on the actual electoral results.

In reasoning that Mississippi should have an opportunity to correct the defects in its election system, Judge Jordan relied heavily on Chisom v. Roemer, a 1988 Fifth Circuit case that vacated a district court injunction blocking (under the Voting Rights Act) an upcoming election for a Louisiana supreme court justice. In its opinion in Chisom the Fifth Circuit panel wrote: “It is now established beyond challenge that upon finding a particular standard, practice, or procedure to be contrary to either a federal constitutional or statutory requirement, the federal court must grant the appropriate state or local authorities an opportunity to correct the deficiencies.” That statement would be startling if true. It isn’t. Chisom relied upon language from Supreme Court decisions involving redistricting and reapportioning plans—a context in which legislatures have unique roles and capacities. It is hard to imagine federal judges, sworn to uphold the Constitution and other federal laws, adopting the general position—or even taking it in election cases—that before enjoining state laws they must first give the state an opportunity to heal itself. Certainly, that is not the general approach of judges in the Fifth Circuit.

In emphasizing the need to give Mississippi a chance to act, Judge Jordan noted that the challenged provisions “are not merely statutes that can be revised in one legislative session; they are constitutional provisions that require amendment.” But the judge’s reasoning here is perverse. States should not be able to shield their practices from federal scrutiny by embedding them in their state constitutions rather than adopting them as statutes.

Judge Jordan thought Mississippi itself should choose an alternative method for selecting its governor. We don’t quibble with that proposition. But it doesn’t lead to the conclusion that a preliminary injunction is inappropriate. Judge Jordan wondered what remedy he could impose at the preliminary stage. The remedy would have been to enjoin operation of the challenged provisions such that, with the popular vote requirement still in place, a candidate would need to win a majority of the popular vote (perhaps necessitating a run-off election). The state would be free in the future to amend its constitution to adopt a different approach.

In Part Three in a few weeks, we turn more deeply to the merits themselves, in particular the interesting and complex question of whether Mississippi’s regime runs afoul of the one-person, one-vote principle as the Supreme Court has understood it.

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