A Jim Crow-era layout of the Mississippi The constitution designed to disenfranchise black voters is constitutional, a federal appeals court ruled Wednesday.
The case involves a provision of the Mississippi constitution, Section 241, which spells out specific crimes that cause its citizens to permanently lose the right to vote. Mississippi officials originally passed the provision at a constitutional convention in 1890, choosing crimes such as theft, arson, embezzlement and bigamy that they thought African Americans were more susceptible to. commit. “We came here to exclude Negroes,” said the convention president. “Nothing less than that will answer.”
A majority of judges on the United States Court of Appeals for the Fifth Circuit did not dispute that the original provision was racist and unconstitutional. But they said Mississippi has since “cleansed” the provision of its “discriminatory taint” by changing the provision twice in the 20th century. Voters removed burglary from the list of disenfranchising crimes in 1950 and added murder and rape to the list in 1968.
“The plaintiffs have failed to meet their obligation to prove that the current version of section 241 was motivated by discriminatory intent. Moreover, Mississippi has shown conclusively that any taint associated with Section 241 has been healed,” wrote a majority of judges from the Fifth Circuit, one of the most conservative in the United States, in an opinion.
Protesters in the case said they plan to appeal the ruling to the U.S. Supreme Court.
The ruling will allow Mississippi to continue to enforce an extremely tough policy regarding voting rights for those with certain felony convictions. Ten percent of the state’s voting-age population — the highest rate in the nation — can’t vote because of a felony conviction, according to an estimate by the Sentencing Project, a nonprofit criminal justice organization. This includes 16% of the black population of voting age. The vast majority of disenfranchised persons in the state have completed their criminal sentence.
It is technically possible for someone with a felony of disenfranchisement to get their vote back, but the state makes it nearly impossible. To do this, a person convicted of a felony 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. Almost no one succeeded.
It is a policy that prevents people as Roy Harnessone of the main plaintiffs in the case, to vote.
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 he has focused on his education. He obtained a bachelor’s degree at 63 and a master’s degree in 2019. “It hurts me. I served my country, my nation… I graduated and [I] still can’t vote no matter what you do to prove yourself,” he said the Guardian earlier this year.
In a dissenting opinion, Justice James Graves said that the 20th century changes did not remedy the discrimination of the original layout.
“The 1968 vote only reflects voters’ opinions on the addition or subtraction of three crimes from the original § 241 list. These votes did not in any way affect the original eight crimes from 1890 that remain in § 241 to this day,” he wrote.
Graves, who is black, also said the majority glossed over the blatant racial discrimination that continued to exist in Mississippi when the amendments were passed, and discussed that story in terms unusually personal for a court opinion.
“Telling the story of Mississippi forces me to relive my childhood experiences in Jim Crow times. Although I do not rely on these experiences to decide this case, I would be less candid if I did not admit that I remember them. Cheers,” he wrote.
He wrote that he saw a cross burned on his grandmother’s lawn in Mississippi in 1963 and that he saw the best black teachers transferred from his school after the courts ordered desegregation. He also wrote about the enduring presence of the Confederate emblem on the flag of Mississippi, which sat next to him on the court bench where he 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.