WASHINGTON, D.C. — On Friday, June 30, the U.S. Supreme Court rejected a petition seeking review of Mississippi’s strict felony disenfranchisement provision (Section 241) that was enshrined in the state’s 1890 constitution. The 5th U.S. Circuit Court of Appeals previously upheld the constitutionality of the state’s felony disenfranchisement scheme in August 2022.
In 2017, individuals with prior felony convictions filed a lawsuit challenging Section 241.
The Jim Crow-era provision of the Mississippi Constitution at issue in the petition — which 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 — was originally challenged in a consolidated lawsuit, Harness v. Watson. The lawsuit was filed by individuals with past felony convictions who alleged that the challenged provision was constructed and enacted with the intent to discriminate against Black voters and to prevent them from exercising their right to vote in violation of the 14th Amendment of the U.S. Constitution.
Notably, the constitutional provision was amended by the Mississippi 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 argued that the various other crimes that remained in Section 241 since 1890 are “tainted” by “racial animus” and “continue to disproportionately disfranchise African Americans to this day.”
In 2019, a trial court upheld Section 241 and in 2022, the 5th Circuit affirmed.
In September 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. 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 majority 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 agreed 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.
Following the 5th Circuit’s decision, the plaintiffs appealed to the U.S. Supreme Court.
In October 2022, the plaintiffs appealed this decision to the U.S. Supreme Court, asking the Court to reverse the 5th Circuit’s “egregiously wrong” decision and to rule that Section 241 violates the 14th Amendment of the U.S. Constitution. In their petition for a writ of certiorari, the petitioners underscored 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 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.”
Moreover, the petitioners pointed to the majority’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 very 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.”
Ultimately, the Supreme Court’s rejection of the petition means that Mississippi’s felony disenfranchisement provision remains on the books and will continue to disenfranchise tens of thousands of Mississippians.
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 review 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 concluded: “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.”