In a Missed “Opportunity To Learn From Its Mistakes,” Supreme Court Leaves Mississippi’s Felony Disenfranchisement Provision in Place

On Friday, June 30, the U.S. Supreme Court declined to weigh in on a lawsuit challenging Mississippi’s strict felony disenfranchisement provision (Section 241) that was enshrined in the state’s 1890 constitution. The heart of the appeal to the Supreme Court centered around the following questions: What does it take to rectify a policy that was rooted in the scourge of Jim Crow-era racial discrimination? The passage of time? Updates in language? And when are those tweaks not enough?

Previously, in August 2022, the 5th U.S. Circuit Court of Appeals upheld the constitutionality of Section 241. As a result of the Supreme Court’s refusal to review the 5th Circuit’s decision, the invidious felony disenfranchisement provision remains on the books and will continue to disenfranchise tens of thousands of Mississippians. According to the Sentencing Project, Mississippi disenfranchises nearly 11% of its voting age population, the highest percentage in the country.

Mississippi’s 1890 felony disenfranchisement provision was enacted with blatantly discriminatory intent.

When Mississippi called a constitutional convention in 1890, the president of the convention exclaimed: “We came here to exclude the Negro. Nothing short of this will answer.” That goal included drafting Section 241, a segment of the new constitution that codified felony disenfranchisement in the state. 

Section 241 outlined nine crimes that would disqualify voters for life: bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement and bigamy. The delegates designed this list to include crimes that they believed Black people were more likely to commit while excluding the “crimes of the whites.” 

Since 1890, there have been two minor updates to the language in Section 241, though the bulk of the original list of disenfranchising crimes remains intact. In 1950, Mississippi’s all-white Legislature and electorate removed burglary from the list of disenfranchising crimes. Then, in 1968, the Legislature added rape and murder to the list through the same constitutional amendment process.

Individuals convicted of one of Section 241’s disqualifying crimes can only regain voting rights through what is essentially an individualized piece of legislation that must pass both chambers of the Legislature by a two-thirds vote and be signed by the governor. In the 2023 legislative session, the Mississippi Legislature did not restore voting rights to a single person.

In 2017, individuals with prior felony convictions filed a lawsuit challenging Section 241.

A legal challenge to Section 241 emerged in 2017 when the Mississippi Center for Justice filed a lawsuit — Harness v. Watson — on behalf of Roy Harness and Kamal Karriem, two Black Mississippians who are barred for life from voting because of past convictions for embezzlement and forgery, respectively. 

The case argued that a 1998 lawsuit, Cotton v. Fordice, was wrongly decided. In Cotton, two incarcerated men challenged Section 241 for violating the 14th Amendment because of its indisputably racist origins. At the time, the 5th Circuit held that updates in the 1950s and 1960s to Section 241 “superseded the previous provision and removed the discriminatory taint associated with the original version.”

Harness and Karriem, the plaintiffs in the 2017 lawsuit, alleged that the record relied on by the 5th Circuit in Cotton was underdeveloped, especially considering the incarcerated plaintiffs in Cotton represented themselves without a lawyer. Nonetheless, in 2019, a federal district court ruled that Cotton was correctly decided, rejecting the claim that a more developed historical record would prove otherwise. The plaintiffs appealed this decision to the 5th Circuit.

On appeal, the 5th Circuit once again upheld the constitutionality of Section 241.

In a 2021 decision, a panel of three 5th Circuit judges affirmed the district court’s order. Subsequently, in June 2021, the 5th Circuit granted the plaintiffs’ petition for rehearing en banc, meaning the full slate of 5th Circuit judges agreed to reconsider the three-judge panel’s previous decision.  

In an unsigned opinion released on Aug. 24, 2022, the en banc majority of the 5th Circuit affirmed the panel’s earlier decision, once again concluding that Section 241 does not violate the 14th Amendment’s Equal Protection Clause. In the opinion, the majority held that the plaintiffs failed to demonstrate that Section 241 was “motivated by discriminatory intent” or “racism” and that “Mississippi has conclusively shown that any taint associated with Section 241 has been cured” through its later amendments. 

Although the majority conceded that the original version of Section 241 was undoubtedly undergirded by racist motivations, it asserted that because the provision was amended in 1968 in a manner that “was free of intentional racial discrimination,” it no longer conflicts with the Equal Protection Clause.

In October 2022, the plaintiffs asked the U.S. Supreme Court to review the 5th Circuit’s “egregiously wrong” decision, which it ultimately declined to do.

In a petition to the U.S. Supreme Court, the Harness plaintiffs asserted that the 5th Circuit erred in its decision holding that the amendments to Section 241 “cleansed” the provision of its “racial taint.” 

To the contrary, the petitioners noted that when Mississippians voted on the 1950 and 1968 amendments to Section 241, they did not have the opportunity to weigh in on whether the numerous other disqualifying crimes originally enacted in 1890 “should be re-enacted or removed from the State’s Constitution.”  

In support of their petition, the Harness plaintiffs pointed to the 5th Circuit’s ahistorical assessment of these amendments, writing:

Nor does the historical context suggest that eliminating the discriminatory taint of the originally enacted Section 241 was an object of either of the amendments. Racial animus in Mississippi did not end with the 1890 convention. It is schoolbook history that the 1950s and 1960s were a notorious period of opposition throughout the south to the advances of the civil rights movement, nowhere more so than in Mississippi.

Importantly, the petitioners highlighted the staggering and profoundly tangible impact of Section 241 on Black voters in particular: “African Americans constitute 36% of Mississippi’s voting age population, but 59% of its disenfranchised individuals. African American adults are thus 2.7 times more likely than white adults to have been convicted of a disenfranchising crime.” 

On June 30, 2023 — eight months after the petition was filed — the Supreme Court ultimately declined to grant the petition, thus leaving the state’s Jim Crow-era felony disenfranchisement provision in place. 

In a powerful dissent, Justice Ketanji Brown Jackson expressed why the Court “missed yet another opportunity to learn from its mistakes.”

In an earnest dissent, Jackson critiqued the Court’s decision to not take up the case: “The mere passage of time cannot insulate from constitutional challenge a law that was invidious at its inception…In sum, I would have granted this petition to correct the Fifth Circuit’s clear and constitutionally momentous errors.”

Jackson specifically pointed to the fact that the 1950 and 1968 amendments to Section 241 did not afford voters the opportunity to either reenact or alter the original 1890 list of racially discriminatory disenfranchising crimes. Instead, “[t]he same discriminatory list of crimes that the 1890 Constitution’s ratifiers ‘ma[d]e into law by authoritative act’ operates to disenfranchise Mississippians who commit those crimes today,” she wrote, adding that the “Fifth Circuit was wrong to believe that the amendments rendered the 1890 Convention’s discriminatory purpose irrelevant.”

Jackson aptly cited a 125-year-old case, Williams v. Mississippi (1898), in which the Supreme Court upheld the racist disenfranchisement provisions prescribed in Section 241 of Mississippi’s 1890 Constitution. Among the provisions that the Court deemed constitutional in Williams were the state’s grandfather and felony disenfranchisement clauses, as well as poll taxes and literacy tests. In turn, Jackson explained how taking up Harness would have provided the Court with a crucial opportunity to correct its decision in Williams over a century later. 

Jackson emphatically concluded: 

“We were asked to address this problem 125 years ago in Williams, and declined to do so….And this Court blinks again today. So, at the same time that the Court undertakes to slay other giants, Mississippians can only hope that they will not have to wait another century for a judicial knight-errant. Constitutional wrongs do not right themselves. With its failure to take action, the Court has missed yet another opportunity to learn from its mistakes.”