United States District Court, S.D. Mississippi, Northern Division
LESLIE-BURL MCLEMORE, ET AL. PLAINTIFFS
DELBERT HOSEMANN, IN HIS OFFICIAL CAPACITY AS THE MISSISSIPPI SECRETARY OF STATE, ET AL. DEFENDANTS
P. JORDAN, III CHIEF UNITED STATES DISTRICT JUDGE
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  is denied.
Facts and Procedural History
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.  ¶¶ 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
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.
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
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.  at 3. They
seek this injunction before the November 5, 2019 election.
Pls.' Mem.  at 3-4.
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
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.
Motion for Preliminary Injunction
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
(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).
Substantial Likelihood of Success on the Merits
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.  at 7. They're right.
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.
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. ...