In a Missed “Opportunity To Learn From Its Mistakes,” Supreme Court Leaves Mississippi’s Felony Disenfranchisement Provision in Place - Democracy Docket

Scotus:  Harness v. Watson, June 30, 2023

The petition for a writ of certiorari is denied. 

JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins, dissenting from the denial of certiorari. The President of the 1890 Mississippi Constitutional Convention said it plain: “Let us tell the truth if it bursts the bottom of the Universe . . . We came here to exclude the negro. Nothing short of this will answer.”1 To further that agenda, the Convention placed nine crimes in §241 of the State’s Constitution as bases for disenfranchisement, believing that more Black people would be convicted of those crimes than White people. See Williams v. Mississippi, 170 U. S. 213, 222–223 (1898) (acknowledging that purpose, but expressing “no concern” regarding the Conventioneers’ objective); Ratliff v. Beale, 74 Miss. 247, 265, 20 So. 865, 868 (1896) (similar); 47 F. 4th 296, 300 (CA5 2022) (per curiam) (en banc) (case below) (recognizing §241’s discriminatory aim).

In Harness v. Watson the United  States Supreme Court once more stood by as Mississippi disenfranchised Black voters.The story of this new miscarriage of justice is well told here. But I feel compelled to mention an article by a mentor of mine, the late co-founder of the Center for Constitutional Rights Morton Stavis: A Century of Struggle for Black Enfranchisement in Mississippi: From the Civil War to the Congressional Challenge of 1965—And Beyond, 57 Miss. L.J. 591(1987) 

- GWC

In a Missed “Opportunity To Learn From Its Mistakes,” Supreme Court Leaves Mississippi’s Felony Disenfranchisement Provision in Place - Democracy Docket

By Caroline Sullivan, Rachel Selzer

On Friday, June 30, the U.S. Supreme Court declined to weigh in on a lawsuit challenging Mississippi’s strict felony disenfranchisement provision (Section 241) that was enshrined in the state’s 1890 constitution. The heart of the appeal to the Supreme Court centered around the following questions: What does it take to rectify a policy that was rooted in the scourge of Jim Crow-era racial discrimination? The passage of time? Updates in language? And when are those tweaks not enough?

Previously, in August 2022, the 5th U.S. Circuit Court of Appeals upheld the constitutionality of Section 241. As a result of the Supreme Court’s refusal to review the 5th Circuit’s decision, the invidious felony disenfranchisement provision remains on the books and will continue to disenfranchise tens of thousands of Mississippians. According to the Sentencing Project, Mississippi disenfranchises nearly 11% of its voting age population, the highest percentage in the country.

Mississippi’s 1890 felony disenfranchisement provision was enacted with blatantly discriminatory intent.

When Mississippi called a constitutional convention in 1890, the president of the convention exclaimed: “We came here to exclude the Negro. Nothing short of this will answer.” That goal included drafting Section 241, a segment of the new constitution that codified felony disenfranchisement in the state. 

Section 241 outlined nine crimes that would disqualify voters for life: bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement and bigamy. The delegates designed this list to include crimes that they believed Black people were more likely to commit while excluding the “crimes of the whites.” 

Since 1890, there have been two minor updates to the language in Section 241, though the bulk of the original list of disenfranchising crimes remains intact. In 1950, Mississippi’s all-white Legislature and electorate removed burglary from the list of disenfranchising crimes. Then, in 1968, the Legislature added rape and murder to the list through the same constitutional amendment process.

Individuals convicted of one of Section 241’s disqualifying crimes can only regain voting rights through what is essentially an individualized piece of legislation that must pass both chambers of the Legislature by a two-thirds vote and be signed by the governor. In the 2023 legislative session, the Mississippi Legislature did not restore voting rights to a single person.

In 2017, individuals with prior felony convictions filed a lawsuit challenging Section 241.

A legal challenge to Section 241 emerged in 2017 when the Mississippi Center for Justice filed a lawsuit — Harness v. Watson — on behalf of Roy Harness and Kamal Karriem, two Black Mississippians who are barred for life from voting because of past convictions for embezzlement and forgery, respectively. 

The case argued that a 1998 lawsuit, Cotton v. Fordice, was wrongly decided. In Cotton, two incarcerated men challenged Section 241 for violating the 14th Amendment because of its indisputably racist origins. At the time, the 5th Circuit held that updates in the 1950s and 1960s to Section 241 “superseded the previous provision and removed the discriminatory taint associated with the original version.”

Harness and Karriem, the plaintiffs in the 2017 lawsuit, alleged that the record relied on by the 5th Circuit in Cotton was underdeveloped, especially considering the incarcerated plaintiffs in Cotton represented themselves without a lawyer. Nonetheless, in 2019, a federal district court ruled that Cotton was correctly decided, rejecting the claim that a more developed historical record would prove otherwise. The plaintiffs appealed this decision to the 5th Circuit.

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