Constitutional Law

Mississippi scrubbed racial taint from its constitutional ban on voting by some felons, 5th Circuit rules

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The lifetime ban on voting for some felons in Mississippi’s 1890 Constitution no longer has a racist taint following later changes that added additional crimes to the list, the 5th U.S. Circuit Court of Appeals at New Orleans has concluded.

In its Aug. 24 opinion, the en banc appeals court held that the state’s current constitutional voting ban does not violate the equal protection clause.

At issue is Section 241 of the Mississippi Constitution, which now denies the right to vote to any person “convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.”

The 5th Circuit said it is “uncontroverted” that the initial version of Section 241 was “steeped in racism” and aimed at preventing Black people from voting by listing what were thought to be “Black crimes.” Supposed “white crimes” were not on the list.

Section 241 was amended in 1950 to remove burglary from the initial list of disenfranchising crimes. The section was amended again in 1968 to add rape and murder to the list and to eliminate residency and poll-tax requirements. The amendments were added as a result of a two-thirds vote of each house of the state legislature and a majority vote in elections.

Two Black men convicted of forgery and embezzlement challenged the current disenfranchisement provisions in a lawsuit contending that they were still tainted by racial animus. They did not contest, however, the ban on voting by those convicted of rape and murder.

The en banc appeals court affirmed a grant of summary judgment to the state.

“Mississippi has conclusively shown that any taint associated with Section 241 has been cured,” the appeals court said in a per curiam decision.

The plaintiffs had argued that a 1998 5th Circuit decision that upheld Section 241 was inconsistent with a 1985 U.S. Supreme Court decision, Hunter v. Underwood, which held that a disenfranchisement provision of the 1901 Alabama Constitution violated the equal protection clause.

The 5th Circuit rejected the argument, saying the Hunter decision had left open the question of whether later reenactments would scrub the taint from the Alabama constitutional provision.

“Three circuit courts, including this one, have answered the court’s hypothetical in the affirmative,” said the 5th Circuit, citing Cotton v. Fordice, its 1998 panel decision.

The appeals court said its 1998 Cotton decision was correct.

“We are not blind to the state’s deplorable history of racial discrimination or its delayed response to the end of de jure segregation or its attempts to suppress Black voter participation during that period,” the 5th Circuit said. “But the overall social and political climate in Mississippi in the 1950s and 1960s fails to carry plaintiffs’ burden to prove that the 1968 amendment intentionally discriminated against Black voters.”

Seven judges on the 17-member en banc panel dissented. The case is Harness v. Watson.

Hat tip to the Associated Press and Mississippi Today, which reported on the ruling. How Appealing linked to additional coverage and the decision.

The Associated Press reports that Harness is one of two lawsuits filed that seek restoration of voting rights for Mississippi felons who have completed their sentences. A second lawsuit that makes different arguments is pending before the 5th Circuit.

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