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McLemore v. Hosemann

United States District Court, S.D. Mississippi, Northern Division

November 1, 2019

LESLIE-BURL MCLEMORE, ET AL. PLAINTIFFS
v.
DELBERT HOSEMANN, IN HIS OFFICIAL CAPACITY AS THE MISSISSIPPI SECRETARY OF STATE, ET AL. DEFENDANTS

          ORDER

          DANIEL P. JORDAN, III CHIEF UNITED STATES DISTRICT JUDGE

         Seven African-American Plaintiffs seek an order striking the voting laws found in sections 140, 141, and 143 of Article V of the Mississippi Constitution. For the following reasons, their Motion for Preliminary Injunction [8] is denied.

         I. Facts and Procedural History

         Plaintiffs Leslie-Burl McLemore, Charles Holmes, Jimmie Robinson, Sr., Roderick Woullard, Brenda Booth, Jordan Malone, and Tyler Yarbrough are African-American Mississippi citizens who support candidates for statewide office “preferred by African Americans, ” which, they say, are Democrats. Am. Compl. [26] ¶¶ 19-25; see Id. ¶ 42 (“Voting in Mississippi is highly racially polarized, with the vast majority of white voters preferring Republican candidates, and the vast majority of African-American voters preferring Democratic candidates.”).

         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. Section 143 applies these same procedures to all other statewide-elected, state-level offices. Id. § 143.

         To block these “Challenged Provisions” from applying in the November 2019 election, Plaintiffs sued Secretary of State Delbert Hosemann and Speaker of the Mississippi House of Representatives Philip Gunn. Count I of their Amended Complaint alleges an equal-protection claim as to the Challenged Provisions under the Fourteenth and Fifteenth Amendments to the United States Constitution. Count II asserts a one-person/one-vote claim as to the Electoral-Vote Rule. Finally, Count III says the Challenged Provisions violate § 2 of the Voting Rights Act (“VRA”).

         The case is now before the Court on Plaintiffs' motion for a preliminary injunction seeking an order enjoining enforcement of the Challenged Provisions and “requir[ing] Defendants to declare, as the winner of each contest for statewide, state-level office, the candidate who receives the highest number of votes.” Pls.' Mot. [8] at 3. They seek this injunction before the November 5, 2019 election. Pls.' Mem. [9] at 3-4.

         Defendants responded to Plaintiffs' Amended Complaint with a motion to dismiss, challenging their standing, the ripeness of their claims, and justiciability. They also argue that the Amended Complaint fails to state a claim under Federal Rule of Civil Procedure 12(b)(6).

         The Court heard oral argument on October 11, 2019. Because Plaintiffs seek a ruling on the preliminary injunction before the rapidly approaching election, this Order focuses on that motion. Defendants' motion to dismiss will be addressed in a separate order.

         II. Motion for Preliminary Injunction

         “A preliminary injunction is an extraordinary remedy never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). To obtain this relief, Plaintiffs must demonstrate four familiar requirements:

(1) [a] substantial likelihood of success on the merits; (2) [a] substantial threat that plaintiff[s] will suffer irreparable injury; (3) [that the] injury outweighs any harm the injunction might cause the defendant[s]; and (4) [that the] injunction is in the public interest.

Women's Med. Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001).

         A. Substantial Likelihood of Success on the Merits

         Count II of Plaintiffs' Amended Complaint arguably presents their strongest claim. In it, they attack section 140's Electoral-Vote Rule. Plaintiffs say this rule violates the one-person/one-vote doctrine and is “largely indistinguishable from the county-unit system invalidated in Gray [v. Sanders, 372 U.S. 368 (1963).]” Pls.' Mem. [29] at 7. They're right.

         In Gray, Georgia law apportioned representation in the Georgia House of the General Assembly “as follows: To the eight counties having the largest population, three representatives each; to the thirty counties having the next largest population, two representatives each; and to the remaining counties, one representative each.” 372 U.S. at 371 n.1 (quoting 1945 Ga. Const., art. III, § III, ¶ I). In statewide primary elections, “[c]andidates for nominations who received the highest number of popular votes in a county were considered to have carried the county and to be entitled to two votes for each representative to which the county [wa]s entitled in the . . . House of General Assembly, ” with a majority of the county-unit vote nominating a candidate for statewide office. Id. at 371.

         The use of the county-unit system weighted votes differently depending on where the voters resided:

[T]he residents of Fulton County comprised 14.11% of Georgia's total population[, ] but . . . under the county unit system, the six unit votes of Fulton County constitute 1.46% of the total of 410 unit votes . . . . Echols County, the least populous county in Georgia, had a population in 1960 of 1, 876, or .05% of the State's population, but the unit vote of Echols County was .48% of the total unit vote of all counties in Georgia. . . . Thus, one resident in Echols County had an influence in the nomination of candidates equivalent to 99 residents of Fulton County.

Id. That disparity violated the Fourteen Amendment's one-person/one-vote doctrine. Id. at 379- Defendants attempt to avoid Gray in various ways, but their arguments are not compelling. To begin, Hosemann and Gunn say the facts in Gray are distinguishable because the house seats in Mississippi are based on population, thus votes are not weighted differently. Had the Gray opinion stopped its analysis with the population-disparity issue, Defendants might have a better point. But during the Gray litigation, Georgia modified the county-unit system to more closely approximate population. Id. ...


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