On June 30, the day after it prohibited American universities from addressing historical discrimination by promoting racial diversity in admissions, the U.S. Supreme Court refused to address a notable instance of historical discrimination stemming from the post-Reconstruction era by denying certiorari in Harness v. Watson, a challenge to the felony disenfranchisement provision adopted by Mississippi’s infamous 1890 Constitutional Convention.
This provision was the last remaining vestige of the array of racist voting restrictions adopted by that convention, which had been convened to formally re-establish white supremacy and take the vote away from Black citizens who had attained it in the wake of the Civil War.
Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented from the denial of certiorari, pointing to the Supreme Court’s 1898 decision in Williams v. Mississippi, which acknowledged the racist purpose of the 1890 convention but expressed “no concern” about it in upholding a criminal conviction at the hands of an all-white jury taken from the registered voter list that had been purged of Black residents as a result of the new constitution’s voting restrictions. Justice Jackson lamented that “[w]ith its failure to take action [today], the Court has missed yet another opportunity to learn from its mistakes.”
The felony disenfranchisement measure, contained in Section 241 of Mississippi’s 1890 Constitution, permanently bars anyone from voting who was convicted of certain crimes that the 1890 framers believed were committed mostly by Black people. The disqualifying crimes from the 1890 list that are still in effect today are bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement and bigamy. Burglary was in the original list but was removed in 1950 by constitutional amendment. Murder and rape were added by constitutional amendment in 1968. The Harness case challenged only the eight remaining crimes in the original list and not the 1968 addition of murder and rape.
Six years after the 1890 Constitution, the Mississippi Supreme Court confirmed that the convention “swept the circle of expedients to obstruct the exercise of the franchise by the negro race” by, among other things, targeting “the offenses to which its weaker members were prone.” The other discriminatory voting provisions adopted by the 1890 Framers, including the poll tax and the so-called literacy test and understanding clause, eventually were eliminated in response to federal court orders or by the federal Voting Rights Act (VRA) of 1965. But the felony disenfranchisement provision remains in place today, having prevented many thousands of people from voting, 60% of whom are Black in a state with a 36% Black voting-age population.
The Mississippi Center for Justice’s Impact Litigation Initiative, of which I’m the director, filed this 14th Amendment challenge to the provision in 2017. At a time when some southern states and local governments are removing Confederate statues and other relics of white supremacy — including Mississippi’s redesign of its state flag to remove the Confederate emblem from one of the corners — we felt it was time to remove this relic of white supremacy from the state’s constitution.
This is also a time in which more and more states are abandoning permanent disenfranchisement as a consequence of criminal convictions. We were joined in the lawsuit by former civil rights lawyer and former Mississippi Supreme Court Justice Fred Banks, and two civil rights lawyers whose early careers were spent in Mississippi, Armand Derfner and David Lipman. Former U.S. Solicitor General Don Verrilli also joined the team for the appeal to the 5th U.S. Circuit Court of Appeals and the certiorari petition in the U.S. Supreme Court. We lost in federal district court, before a panel of the 5th Circuit and then by a 10-7 vote of the en banc 5th Circuit.
Mississippi was the first of the southern states to mark the end of Reconstruction by revising its constitution to take the vote away from Black people, who had been able during Reconstruction to elect a number of Black public officials, including members of the United States Congress. Other states followed Mississippi’s lead, including Alabama, which held a constitutional convention in 1901 that, among other things, disfranchised people convicted of crimes “involving moral turpitude.”
In its unanimous 1985 opinion in Hunter v. Underwood, the Supreme Court explained that “[t]he Alabama Constitutional Convention of 1901 was part of a movement that swept the post-Reconstruction South to disenfranchise blacks.” Since the “crimes selected for inclusion” in the provision at issue “were believed by the delegates” to that convention “to be more frequently committed by blacks,” the Court unanimously held that the provision “was enacted with the intent of disenfranchising blacks” in violation of the 14th Amendment.
Although Hunter should have controlled the outcome in our case, the en banc 5th Circuit majority purported to distinguish Hunter on the theory that the voters of Mississippi (who must approve any amendment to the state constitution) somehow “cured” the provisions of their racist taint when amending Section 241 in 1950 to remove burglary as a disfranchising offense and again in 1968 to add murder and rape. The en banc majority described the 1950 and 1968 amendments as “reenactments” of the entirety of Section 241 that were not themselves the product of racial animus.
But they were not “reenactments” at all. In both 1950 and 1968, Mississippi’s voters were offered only the option to vote for or against the amendment — not Section 241 as a whole. Whichever way they voted, the rest of the 1890 version would remain in place. Moreover, 1950 (when the Legislature was all white and the electorate was almost all white) and 1968 (when the Legislature had only one Black member) were times of massive official resistance in Mississippi to racial integration, and it is implausible to assume that those amendments, which left in place eight of the nine 1890 crimes, were designed to “cure” the 1890 discrimination.
Unfortunately, none of this was enough for the U.S. Supreme Court to grant review, and this vestige of Mississippi’s 1890 retrenchment of the doctrine of white supremacy remains in place over 130 years later.
With the legal challenge at an end, we will now press the Mississippi Legislature to step up and propose to the voters an amendment to Section 241 of the state constitution to remove the eight disenfranchising crimes that remain from the original 1890 discriminatory list of nine. Efforts have already been made to persuade the Legislature in this regard, but the legislative leadership has backed away while waiting to see if the federal courts would address the issue. Now that the case is over, we will move forward once again.
In the meantime, one more word on the Supreme Court’s denial of certiorari. It is tempting to believe, as Dr. Martin Luther King Jr. said, that “the arc of the moral universe is long, but it bends toward justice.” The Supreme Court’s checkered history on the issue of race, however, resembles at best a jagged line rather than a bending arc. Among the many low points are Plessy v. Ferguson (1896), which cleared the path for the South to implement Jim Crow in all aspects of society for decades to come, and White v. Mississippi two years later, which cleared the path for other states to follow Mississippi’s 1890 example in excluding Black people from the voter rolls.
By contrast, there was significant progress in the latter part of the 20th century with Brown v. Board of Education (1954) and later decisions upholding the Civil Rights Act of 1964 and the VRA of 1965. Turning the pages to the present day, the Court’s ruling this year reaffirming prior interpretations of the Section 2 of the VRA in Allen v. Milligan was an unexpected ray of light.
But its decision three weeks later to stand in the way of those universities who choose to take steps to remedy prior discrimination is a serious blow to the ongoing struggle to overcome the legacy of slavery and racism. And while it is a much smaller blip on the radar, the denial of certiorari in the Harness case, bypassing an opportunity to remedy a significant manifestation of that legacy from the post-Reconstruction era, is another low point in the Supreme Court’s history of addressing the issue of race.
Rob McDuff is a civil rights and criminal defense lawyer in Jackson, Mississippi and the director of the Impact Litigation Initiative of the Mississippi Center for Justice.