Whether United States Supreme Court justices take the time to understand how Mississippi’s Constitution is amended could determine if they agree to hear a case asking that a provision prohibiting most people convicted of felonies from voting be found unconstitutional.
The New Orleans-based 5th Circuit Court of Appeals, like the Supreme Court a conservative-leaning court, appears not to have taken the time to understand the Mississippi Constitution amendment process and thus upheld the racist provision. In fairness to the 5th Circuit judges, they were basing their decision on arguments from the office of Mississippi Attorney General Lynn Fitch, who also either does not understand the amendment process or wants to ignore the limitations of the process.
Everyone, including Fitch’s office and the judges, agree that the intent of the felony disenfranchisement language, like other sections of the 1890 Constitution, was to prevent African Americans, then a majority in the state, from voting. The narrative of the day from the framers of the Constitution made that clear.
“The plan is to invest permanently the powers of government in the hands of the people who ought to have them: the white people,” James Zachariah George, a U.S. senator who was one of the architects of the 1890 Constitution and to this day has a statue in the U.S. Capitol representing Mississippi, said at the time. There was a belief that Black Mississippians would be more prone to commit certain lesser tier crimes. That is why crimes like bribery, theft and bigamy were deemed to be disenfranchising and murder and rape were not.
Fitch’s office argued and a majority of the 5th Circuit agreed that because the constitutional provision was amended twice – in 1950 and 1968 – to remove burglary and add murder and rape as disenfranchising crimes that the racial taint had been removed and thus the provision is not unconstitutional.
“The critical issue here is not the intent behind Mississippi’s 1890 Constitution, but whether the reenactment of Section 241 (the felony disenfranchisement language) in 1968 was free of intentional racial discrimination,” the nine-member majority of the 17-member court wrote in an unsigned opinion.
The majority concluded it was.
“Mississippi (represented by the office of the Attorney General) has conclusively shown that any taint associated with Section 241 has been cured,” the majority wrote.
The Mississippi Center for Justice and others on behalf of two disenfranchised Mississippians, Roy Harness and Kamal Karriem, are asking the nation’s highest court to reconsider the 5th Circuit ruling. A decision on whether the court will hear the case should be made during the first half of the year.
In asking the court to not hear the case, Fitch is continuing the argument that the racial taint had been removed by what happened in the 1950s and 1960s.
It is important to understand how the Mississippi Constitution is amended. The citizens never got an opportunity to vote on whether they wanted to remove the racist language. The Legislature voted to put on the ballots in the 1950s and 60s language eliminating burglary and adding murder and rape as disenfranchising crimes. No matter how the citizens voted on those amendments, the bulk of the constitutional provision would remain in place. That language imposes a lifetime ban on voting on those convicted of writing a bad check but not for major drug kingpins who do not lose their right to vote even while serving a prison sentence.
And to top it off, it does not take a history scholar to understand that in the 1950s and 60s there were a lot of efforts to discriminate against Black Mississippians being undertaken by the state’s political leaders.
Fitch pointed out that when making its ruling the 5th Circuit said, “Plaintiffs’ proposal that a state constitutional amendment must be voted on word for word to avoid any vestigial racial taint is radically prescriptive…. No subsequent case law supports plaintiffs’ novel, judicially crafted political theory of public consent.”
It would seem, though, that the vote should be on whether to continue an admittingly racist constitutional provision that has never been voted on by Mississippians.
So however the Supreme Court justices decide to handle the case, hopefully they will do so understanding all the circumstances surrounding the racist felony disenfranchisement provision.
As this case is considered, it is important to note Mississippi is one of less than 10 states with a permanent ban on voting.
This article first appeared on Mississippi Today and is republished here under a Creative Commons license.