Battle to Dump Jim Crow-Era Voting Rules

than one thirty years. Jennifer Riley Collins, who wants to become Mississippi's first black Attorney General, says the reason is the state's constitution. She's suing to change that, and she's getting help from the country's first black attorney General, Eric Holder, joining me as a leading expert on election law, Rick Pildas,

a professor at n y U Law School. Rick tell us about the provision in Mississippi state Constitution the suit is directed at, Yes, Well, this is a provision that requires someone, if they are going to be elected governor, not just to win a majority of the votes statewide, but also to win a majority of votes in a substantial majority of the counties in the states or the

districts in the state. So in other words, you have to win, um, not just stay wide, but you have to be able to win in lots of the different counties or districts in the state. UM. And the concern is that this means that an African American candidate has to win not just statewide, but in a lot of places that are overwhelmingly white, and that that makes it far more difficult for an African American candidate to win statewide. How would the plaintiffs prove their case with statistics? And

isn't that an uphill battle. No, they wouldn't have to prove a case like this with statistics, because this is just the formal structure of the election process. And thee is whether this structure is consistent with the Constitution and

with the Voting Rights Act UM. And here we also have one of these very rare situations in which you have a an election provision or structure that goes back to one of these explicitly racist constitutions that were formed in many places in the South in the eighteen nineties

and the early part of the twentieth century. Uh So, the argument is that this structure, this very unusual structure, was created in the nineties specifically for the purpose when African Americans were able to vote in the South of making it very very difficult for an African African American

to get elected to a statewide office. Uh So, the combination of whether this is a discriminatory purpose behind this structure um and whether it violates either the Constitution of the Voting Rights Act as a result is the core of the case. And and statistical evidence will not be particularly critical in a case like this. If this ends up going to the Supreme Court, we have a court that has cut back on the Voting Rights Act and recently ruled that parties in Gerryman during is not against

the Constitution. What do you suspect the court would do with this? Well, as I understand this case, this this is as I say, this is one of these very old uh examples that are not as common anymore, of of a provision that traces right back to an explicitly racist constitution that was adopted in in Mississippi. The Supreme Court has faced a few provisions like that from other state constitutions from that era, including from Alabama, and it

has struck those provisions down as unconstitutional. Uh So, as I understand this case. I think Mississippi has a tough road to ho here in defending uh this provision uh and UH and I think the plaintiffs are you know, probably have a pretty strong case here. The response from Mississippi was that this is not about race, but about partisan politics. Does that get them anywhere? Well, if that were accurate, if this were just about partisan politics, then

that probably would be a defensible answer. Um. You know, whether whether that's actually a plausible explanation for why this structure came into being um and whether it's a constitutional today is still an open question. And and this provision also, you know, looks like it violates a kind of one vote, one person type doctrine, which uh, you can't defend by saying you're violating that doctrine for partisan political purposes. Because what this provision says is it's not enough to win

a majority of the votes statewide. You also have to win in a variety of individual counties or districts. Uh. And so this provision may violate the one vote, one person provisions of constitutional doctrine. UM. And there's no partisan defense to that. I want to broaden the conversation a little bit because, according to the election law Journal, Mississippi

makes it harder to vote than any other state. Let's talk a little bit about the national fight over voter You know, registration laws and voter ID laws in most states. Do you see growing problems making the vote harder? Well, I think the issue that's being picked out in Mississippi in particular is the Fellon disenfranchisement law and the ongoing effects of Fellion disenfranchisement laws in Mississippi. UM. As you know,

those laws have gotten a lot of attention in recent years. UM. And while the courts have not struck those laws down, UM, they have been changed by vote are initiative in a place like Florida, and by governor's actions in other states, and by some state legislation. UM. And I think that's the main thing that's being referred to in Mississippi. Beyond the particular law being UM challenged here, there's certainly there's

a lot more activity about regulating access to the political process. UM. The courts have struck down some voter ID laws, they've upheld other voter ID laws. It depends a lot of the specifics of how a particular states voter ID law works. How many states allow felons to vote former felons. So there are just a very limited number of states who disenfranchise former falons for life. Uh. Many states disenfranchised people

while they are serving their sentence um. And the real question is once people have fully served their sentence uh and fully paid their dues, are they then eligible to vote? Do they have to go through some very complex procedure to get their voting rights back or are they automatically

able to vote at that point? Uh? And I think that's that's really where the largest issues are, these permanent bands for life for former felons who have served their time, or states that make it incredibly difficult you have to jump through lots of procedural hoops to restore your voting rights. Thanks so much for joining us today. That's Rick Pildas. He's a professor at n y U Law School and a leading expert on election law. Thanks for listening to

the Bloomberg Law Podcast. You can subscribe and listen to the show on Apple Podcasts, SoundCloud, and on Bloomberg dot com slash podcast. I'm June Brasso. This is Bloomberg