WASHINGTON, D.C. — On Wednesday, Aug. 24, the 5th U.S. Circuit Court of Appeals affirmed a lower court’s decision to uphold a provision of the Mississippi Constitution that disenfranchises Mississippians with prior felony convictions. The profound impacts of this decision are staggering: In upholding Mississippi’s invidious felony disenfranchisement provision, approximately 10% of the state’s population will remain barred from participating in elections.
The lawsuit from which this decision arises, Harness v. Watson, involved a challenge to a Jim Crow era provision (Section 241) of Mississippi’s 1890 Constitution. The plaintiffs, two Black men who completed felony sentences for embezzlement and forgery respectively but are barred from voting under state law, argue that Section 241 was constructed and enacted with the intent to discriminate against Black voters and prevent them from exercising their right to vote in violation of the 14th and 15th Amendments of the U.S. Constitution. Section 241 specifically strips the right to vote for life from anyone convicted of bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy. Notably, the constitutional provision was amended by the state Legislature in 1950 to remove burglary and again in 1968 to add rape and murder as disenfranchising crimes. While the plaintiffs did not challenge the rape and murder amendment of the provision, they argue that the various other crimes that remained in Section 241 since 1890 are “tainted” by “racial animus.” In 2019, a district court upheld the amended version of Section 241, maintaining that the provision, as amended in the 1950s and 1960s, was ratified “without racial motivation.” The plaintiffs appealed this decision to the 5th Circuit and a three-judge panel affirmed the district court’s decision to uphold the felony disenfranchisement provision. In March 2021, the plaintiffs filed a petition in the 5th Circuit for rehearing en banc, meaning they asked the full slate of 5th Circuit judges to reconsider the three-judge panel’s previous decision, which was granted.
Yesterday’s unsigned majority opinion concluded that the felony disenfranchisement provision of the state’s constitution does not violate the Equal Protection Clause of the U.S. Constitution. 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 has conclusively shown that any taint associated with Section 241 has been cured.” Although the majority agreed that the original version of Section 241 was undoubtedly undergirded by racist motivations, it asserted that, because the provision was amended, it no longer conflicts with the Equal Protection Clause. However, the majority’s argument rested on its contention that “contrary to plaintiffs’ principal assertion, … the critical issue here is not the intent behind Mississippi’s 1890 Constitution, but whether the reenactment of Section 241 in 1968 was free of intentional racial discrimination.” The majority concluded that the 1968 reenactment was not motivated by racial discrimination and is therefore constitutional.
In stark contrast, the principal dissent written by Mississippi native Judge James Graves, who was joined by four other judges, proclaimed that the “en banc majority upholds a provision enacted in 1890 that was expressly aimed at preventing Black Mississippians from voting. And it does so by concluding that a virtually all-white electorate and legislature, otherwise engaged in massive and violent resistance to the Civil Rights Movement, ‘cleansed’ that provision in 1968.” The dissent further pointed to what it believes is the majority’s fallacious reasoning in its assertion that the provision was ridden of its racially discriminatory motivations, noting that the “1968 vote [to amend Section 241] reflects the voters’ views only on the addition or subtraction of three crimes in the original list. Those votes did not touch, in any way, the eight original crimes from 1890 that remain in [Section 241] to this day.” Additionally, the dissent raised the fact that Mississippi society in the 1950s and 1960s — around the time in which the amendments were passed — was still very much steeped in white supremacy and blighted by segregation and discrimination, as demonstrated by the state’s staunch resistance to the civil rights movement. The dissent added that, although Mississippi is “home to the highest percentage of Black Americans of any state in the Union,” it has “unsurprisingly” not elected a Black person to statewide office since 1890. Finally, the dissent referenced a 2020 report authored by the Sentencing Project that highlights the adverse impacts of today’s decision. According to the report, almost 11% of Mississippi’s voting age population — 235,152 individuals — is disenfranchised due to this provision and 16% of Black Mississippians — 130,501 individuals — cannot vote due to the provision.