‘An Opportunity to Right a 130-year-old Wrong:’ How the 5th Circuit Failed Mississippians

A blue-tinted collage including: the Mississippi state flower, voting rights protests, the arrest of comedian Dick Greggory after he helped Black people register to vote in Greenwood, the old Mississippi flag, mugshots from Jackson, the Mississippi statehouse, a felony disenfrnachisement graph, the Mississippi Constitution, photo of the delegates at the1890 constitutional convention and a clipping from Cotton v. Fordice where the court decided that amendments "removed the discriminatory taint" of the original provision.

On Aug. 24, the 5th U.S. Court of Appeals upheld Mississippi’s felony disenfranchisement law, Section 241, originally designed during an 1890 constitutional convention. In his powerful dissenting opinion, Judge James E. Graves Jr. aptly characterized the decision: “Handed an opportunity to right a 130-year-old wrong, the majority instead upholds it.”

Felony disenfranchisement laws strip the right to vote from people on the basis of criminal convictions and vary widely from state to state. Notoriously, Mississippi has one of the strictest in the country, barring individuals from voting for life if they are convicted of certain offenses. In Richardson v. Ramirez (1974), the U.S. Supreme Court found that, facially, felony disenfranchisement laws do not violate the Equal Protection Clause of the 14th Amendment. This decision hinged on Section 2 of the 14th Amendment, which forbids the abridgment of voting rights “except for participation in rebellion, or other crime.” While the Richardson decision made clear the constitutionality of felony disenfranchisement as an overarching concept, Alabama’s felony disenfranchisement statute was struck down in Hunter v. Underwood (1985) because it was enacted with discriminatory intent.

The recent lawsuit out of Mississippi consequently challenged the state’s law on the basis that it was also enacted with discriminatory intent and was unconstitutional under Hunter. In upholding the law, the majority recognizes that the 1890 provision, Section 241, had an undeniably racist origin, but concludes that two 20th century updates cleansed the provision of any “discriminatory taint.”

The origins and evolution of Section 241 are rooted in Mississippi’s racist past. 

When a constitutional convention was called during the Mississippi summer in 1890, the intentions were clear. Judge Solomon Calhoon, president of the convention, stated it up front: “We came here to exclude the Negro. Nothing short of this will answer.” Former U.S. Sen. James Zachariah George further explained that the convention “will enable us to maintain a home government, under the control of the white people of the State.”

The 134 convention delegates, 133 of whom were white, designed Section 241 of the new constitution as one of several methods to disenfranchise Black voters, along with a poll tax and literacy test. Section 241 outlined nine crimes that would disqualify voters: bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement and bigamy. This eclectic mix of offenses were thought at the time to be crimes that Black people were more likely to be commit while the “crimes of the whites” — even those categorically more serious like murder — were kept off the list.

In 1950, Mississippi’s all-white Legislature and electorate removed burglary from the list of disenfranchising crimes. In 1968, they added rape and murder. These modifications occurred through the state’s constitutional amendment process where the Legislature passes language that then heads to the voters as a ballot measure.

In the late 1990s, two incarcerated men challenged Section 241 for violating the 14th Amendment because of the provision’s racist origins. In Cotton v. Fordice (1998), the 5th Circuit held that “[b]ecause Mississippi’s procedure resulted both in 1950 and in 1968 in a re-enactment of § 241, each amendment superseded the previous provision and removed the discriminatory taint associated with the original version.” The racism around Section 241’s enactment in 1890 is undisputed. Yet, in 1998 — and affirmed again by the majority last week — the 5th Circuit chose to focus on the two legislatively referred ballot measures, holding that these slight tweaks somehow purified the provision of its dark past.

The recent decision shows the 5th Circuit’s failure to account for well-known civil rights history.

That brings us to 2017, when Roy Harness and Kamal Karriem, two Black Mississippians who are barred for life from voting because of past convictions for embezzlement and forgery, respectively, filed a new lawsuit challenging Section 241. They argue, in Harness v. Watson (later consolidated with Hopkins v. Hosemann), that the 1998 Cotton decision was wrongly decided. The 2017 plaintiffs allege that the record that the 5th Circuit relied on in Cotton was underdeveloped — especially considering the incarcerated plaintiffs in Cotton were representing themselves pro se (meaning without a lawyer) — and a full examination of the facts shows how the 1950 and 1968 amendments were not complete “re-enactments” of Section 241 and thus do not purge it of its discriminatory design.

In 2019, a federal district court ruled on a motion for summary judgment, endorsing the conclusions reached in Cotton and holding that the Harness plaintiffs were incorrect in believing that a more developed historical record would prove otherwise. In early 2021, a panel of three 5th Circuit judges affirmed the district court’s order before an en banc hearing was held, where the entire 5th Circuit reviewed the case. 

In an unsigned majority opinion released on Aug. 24, the en banc 5th Circuit affirmed the panel’s earlier decision, once again finding Cotton consistent with the discriminatory intent tests in Hunter. The “Plaintiffs failed to meet their burden of showing that the current version of Section 241 was motivated by discriminatory intent. In addition, Mississippi has conclusively shown that any taint associated with Section 241 has been cured,” the majority wrote.

Graves, who authored the lead dissenting opinion that was joined by four other judges, pointed out how the majority made this case about Mississippi in the 1960s. “In doing so, the majority ironically fails to acknowledge the relevant and well- known historical evidence of Mississippi in the 1960s,” he continues. Graves cited too many horrific examples to list, presenting evidence for the consistent and widespread pushback to civil rights progress by white Mississippians. In pointing to the context of the 1950 and 1960s, Graves concluded that “it is hard to imagine an electorate so relentlessly active in its resistance to racial equality was somehow suddenly race neutral in their handling of a racially motivated provision in its constitution.”  

Additionally, during the time period where the Mississippi Legislature was passing the Section 241 amendments, the virtually all-white lawmakers (in 1968 there was only one Black member, the first elected to the Legislature since Reconstruction) were also creating a secret police force to prevent racial progress, closing loopholes to literacy tests and openly defying the Voting Rights Act of 1965. In 1956, the Legislature passed a resolution declaring Brown v. Board of Education “invalid, unconstitutional, and of not lawful effect.” That resolution passed 136-0.

The majority also disagreed with the plaintiffs’ argument that the 1950 and 1968 amendments were not “re-enactments,” instead holding that these were full, overriding revisions of the 1890 provision. The plaintiffs argued that removing one crime from the list and later adding two more does not alter the core eight disqualifying crimes in Section 241 designed in 1890. Further, the Mississippi voters who approved the amendments had no choice to accept or reject the original list. As Graves put it: “Since 1890, Mississippi voters have not touched [the list of eight original disqualifying crimes] in any meaningful way so as to alter the intent.”  

With Mississippi having the highest percentage of disenfranchised voters in the country, the consequences of this decision are very real.

For individuals convicted of one of Section 241’s disqualifying crimes, there is a method to individually regain voting rights. However, The Guardian reported earlier this year that the data shows few people have succeeded. In reality, a disenfranchised Mississippian needs an individualized piece of legislation — a bill introduced in the Legislature on their behalf that must pass both chambers by a two-thirds vote before being signed by the governor. Over the past 25 years, an average of seven individuals have had their rights restored each year. In the 2021 legislative session, that number was two.

The fact that so few people see their rights restored is especially telling in the state with the highest percentage of disenfranchised voters in the country. According to a 2020 report by The Sentencing Project, nearly 11% of Mississippi’s voting age population is locked out of political participation. That number swells to 16% of the state’s Black voting age population. Mississippi is also home to the highest percentage of Black Americans in the country, yet a Black person has not been elected statewide since 1890.

Graves, one of two Black judges currently on the 5th Circuit and a lifelong Mississippian, included several stories about growing up during Jim Crow in his dissent: how a cross was burned on his grandmother’s lawn and the experience of his high school desegregating. When Graves was first appointed to serve as a state trial judge in 1991, the Mississippi flag with its Confederate emblem flew above the courtroom. Ten years later, in Graves’ next courtroom for the Mississippi Supreme Court, the confederate symbol remained. And 10 years after that, the flag still flew above. 

Just as the Confederate flag persisted in Mississippi’s civic culture for years after its racist roots were exposed and understood, the 5th Circuit has turned a blind eye to the unrelenting legacy of an 1890 white supremacist constitution. The majority of the court instead focused on meager changes in the constitutional language as a way to ignore the history of the 20th century and the real-life impact of a harmful law. As Graves concluded: “No matter where I went, the 1894 flag was already there—a haunting reminder that a wrong never righted touches us all.”