A Jim Crow-era provision of the Mississippi constitution designed to disfranchise Black voters is constitutional, a federal appellate court ruled on Wednesday.
The case deals with a provision of the Mississippi constitution, Section 241, that lays out specific crimes that cause its citizens to permanently lose the right to vote. Mississippi officials initially adopted the provision at a constitutional convention in 1890, choosing crimes such as theft, arson, embezzlement and bigamy that they believed African Americans were more likely to commit. “We came here to exclude the Negro,” said the convention’s president. “Nothing short of this will answer.”
A majority of judges on the US court of appeals for the fifth circuit did not dispute that the original provision was racist and unconstitutional. But they said Mississippi had since “cleansed” the provision of its “discriminatory taint” by tweaking the provision twice in the 20th century. Voters removed burglary from the list of disfranchising crimes in 1950 and added murder and rape to the list in 1968.
“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,” a majority of justices for the fifth circuit, one of the most conservative in the US, wrote in an opinion.
The challengers in the case have said they plan to appeal the ruling to the US supreme court.
The decision will allow Mississippi to continue to enforce an extremely harsh policy when it comes to voting rights for those with certain felony convictions. Ten per cent of the state’s voting age population – the highest rate in the country – cannot vote because of a felony conviction, according to an estimate by the Sentencing Project, a criminal justice non-profit. That includes 16% of the Black voting age population. The vast majority of people disenfranchised in the state have completed their criminal sentence.
It is technically possible for someone with a disfranchising crime on their record to get their voting rights back, but the state makes it nearly impossible. To do so, a person with a felony conviction must get both houses of the state legislature to approve an individualized bill on their behalf by at least a two-thirds majority. The bill must then be approved by the governor. Hardly anyone has succeeded.
It’s a policy that prevents people like Roy Harness, one of the lead plaintiffs in the case, from voting.
Harness, a Black army veteran in his late 60s, cashed a series of bad checks in the 1980s and was convicted of forgery. He spent two years in prison and in recent years has focused on his education. He got a bachelor’s degree at 63 and a master’s degree in 2019. “It makes me feel bad. I’ve served my country, nation … got a degree and [I] still can’t vote, no matter what you do to prove yourself,” he told the Guardian earlier this year.
In a dissenting opinion, Judge James Graves said the tweaks in the 20th century did not cure the discrimination of the original provision.
“The 1968 vote reflects the voters’ views only on the addition or subtraction of three crimes in the original § 241 list. Those votes did not touch, in any way, the eight original crimes from 1890 that remain in § 241 to this day,” he wrote.
Graves, who is Black, also said the majority had glossed over the blatant racial discrimination that continued to exist in Mississippi when the amendments were adopted, and discussed that history in unusually personal terms for a judicial opinion.
“Recounting Mississippi’s history forces me to relive my experiences growing up in the Jim Crow era. While I do not rely on those experiences in deciding this case, I would be less than candid if I did not admit that I recall them. Vividly,” he wrote.
He wrote about seeing a cross burned on his grandmother’s lawn in Mississippi in 1963, and seeing the best Black teachers transferred away from his school after courts ordered desegregation. He also wrote about the lasting presence of the Confederate emblem on the Mississippi flag, which sat beside him on the bench in the courts where he has served.
“No matter where I went, the 1894 flag was already there – a haunting reminder that a wrong never righted touches us all,” he wrote.