School Boards Elected With a Minority of the Vote

Some of Mississippi's public school boards are appointed and some are elected. The members of Jackson's school board, for example, are nominated by the mayor and confirmed by the city council (in my view, all school boards should be elected, since they have the power to raise taxes, but I digress). When a school board member is elected, it's a nonpartisan contest, in which all candidates run in the same election-- popularly called an "open primary."

In 2009, the Mississippi legislature enacted HB 877, which applies to county school boards and certain municipal school boards which embrace entire counties. HB 877 requires that, if no candidate gets 50-plus percent in the first round, there will be a runoff three weeks later.

Mississippi is one of the jurisdictions covered under Section 5 of the federal Voting Rights Act. Anytime the state-- or a political party herein-- proposes to change anything related to our voting procedures, the change must be precleared by the U. S. Department of Justice (DOJ) or the U. S. District Court for the District of Columbia.[1]

Last year the state attorney general's office submitted a request for preclearance to the DOJ, which finally objected to the implementation of HB 877, asserting that the state has not provided the information necessary for the DOJ to perform its duty. Edward Still, who posted the DOJ's March 24, 2010 letter, comments, "The letter should be used as a case study in how a State can fail to carry its burden of proof in a Section 5 preclearance request."

The DOJ's letter notes that the state may either ask for reconsideration from the DOJ or file suit in the U. S. District Court for the District of Columbia. Unless and until HB 877 is approved, the covered school board elections will have to be one-round, first-past-the-post contests, in which it will be possible for someone to be elected with less than 50 percent of the vote.

The DOJ's letter refers to a 1971 ruling by a three-judge federal panel. In 1970, the Mississippi legislature-- for the second of five times-- had enacted nonpartisan elections ("open primaries") for our state, county, and municipal officials. The DOJ had failed to approve or disapprove the law, and the judges did not have the authority to order its implementation. Notably, all three of those judges-- Charles Clark, Dan Russell, and Walter Nixon-- opined that Section 5 of the Voting Rights Act was unconstitutional (Evers v. State Board of Election Commissioners, 327 F.Supp. 640 [S. D. Miss. 1971]).

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[1] Last year the U. S. Supreme Court, in a Texas case against Section 5 of the Voting Rights Act, ducked the issue but left the door open for a future challenge. A new federal lawsuit was brought in North Carolina on April 7 against Section 5, and I will soon be blogging here about that case.