Federal Court Holds Mississippi Vote Counting Rule (Which Could Affect Upcoming Election) is Likely Unconstitutional; It Denies Preliminary Injunction But Leaves Open Relief If Vote Counting Rule Affects Upcoming Election

November 1, 2019, 9:59 amUncategorizedRick Hasen

You can find the court’s order at this link.

“In their Complaint, Plaintiffs contend that three provisions of the Mississippi Constitution impair that choice. The provisions provide that successful candidates for state-level, statewide office must receive both the majority of the popular vote (“the Popular-Vote Rule”) and a plurality of votes in a majority of Mississippi House districts (“the Electoral-Vote Rule”). Miss. Const. art. V, § 140. If no candidate satisfies both the Popular-Vote and the Electoral-Vote Rules, then the “House-Vote Rule” applies, and “the House of Representatives shall proceed to choose [the winner] from the two persons who shall have received the highest number of popular votes.” Id. § 141. By their terms, sections 140 and 141 control statewide elections for governor….
[The court held the constitutional provision likely violates the one person, one vote rule of Gray v. Sanders. But it declined a preliminary injunction.]

Absent some impact on the election results, the constitutional injury
caused by discarded votes is outweighed by the harm a preliminary injunction would cause when the Court attempts to craft a new method for electing statewide officers on the eve of the election. So too, the public interest would not favor such intervention at this preliminary stage.5
FN 5: It is hard to ignore the impact the upcoming election may have on these issues. If the vote produces a split result under section 140 and is destined for a House vote under section 141, then a far more tangible injury could become imminent: the candidate with the majority vote could lose the election because votes were discarded under the Electoral-Vote Rule. The Court will not prejudge those issues, but under those circumstances the case would likely proceed to an expedited trial on the merits at least as to the Electoral-Vote Rule.

As Josh Chafetz notes, this is a terrible way to handle this issue. I’ve long argued that courts should avoid deciding things when it has to decide an election winner—the heat will be much more intense in that case.