Courts Weigh What It Takes to Scrub Old Laws of Racist Intent

In the aftermath of Reconstruction, Mississippi enacted a law that was indisputably intended to discriminate against Black would-be voters.

It’s still on the books.

According to the US Court of Appeals for the Fifth Circuit, which upheld Article XII, Section 241 of the Mississippi Constitution for the second time on Aug. 24, a 1968 amendment “cleansed” the 1890 law of its original racist intent.

Leaving aside how likely that actually is on the merits, the decision highlights an important and undeveloped issue in challenges to laws that have been modified in some way since a constitutionally prohibited inception: Exactly when is a law scrubbed of its discriminatory origins?

The first time the Fifth Circuit upheld section 241 in the face of an equal protection challenge was in Cotton v. Fordice in 1998.

In Cotton, an inmate serving a sentence for armed robbery sought to restore his right to vote and argued that the law was intended to suppress Black voters, among other things.

A unanimous Fifth Circuit panel rejected the argument, saying that though the provision was originally intended to discriminate against Black felons, its 1968 re-enactment hadn’t “been shown to bear that taint.”

This time, the challenge was heard by 17 judges, who voted to reconsider the 24 year-old-case. They reached the same conclusion over the dissent of seven judges.

Neither Rape, Nor Murder

Section 241 originally disenfranchised any person convicted of “bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy.”

According to a report of the federal Civil Rights Commission, those particular offenses were selected because they were thought to be the sorts of crimes Black people committed.

More violent crimes, like rape and murder, were omitted from the felony disenfranchisement provision because the legislature thought of them as “crimes of the whites.”

A 1950 amendment removed “burglary” from the list of disenfranchising offenses. The 1968 amendments, made in response to the same Civil Rights Commission report, added rape and murder.

The challenge in the most recent case, Harness v. Watson, focused on the eight offenses still included in section 241 from its original passage, specifically carving out the subsequently offenses added by amendment in 1968.

The two individuals challenging the law, Roy Harness and Kamal Karriem, argued that they retained the legislature’s original constitutional sin notwithstanding the addition of the two new crimes in 1968.

Harness was convicted of forgery in 1986 and, after completing his sentence, obtained a degree in social work and won a scholarship toward a master’s degree. Karriem, a former Columbus, Miss., city council member, was convicted of embezzlement in 2005. Neither is eligible to vote.

Harness and Karriem argued their case was indistinguishable from Hunter v. Underwood, in which the US Supreme Court held in 1984 that a similarly problematic provision of Alabama’s constitution violated equal protection and that the events that had occurred over the intervening 80 years hadn’t “validated” it.

But the court’s holding left open the possibility that a legislature might reenact a law without the prohibited discriminatory intent.

Deliberative Cleansing

The majority rejected Harness and Karriem’s argument.

Hunter doesn’t apply to section 241 because of the “deliberative process” that gave rise to Mississippi’s 1968 amendments, the court said.

Unlike Mississippi, Alabama hadn’t reenacted its felony-disenfranchisement provision, although it has since.

Because Hunter didn’t apply, Harness and Karriem needed to offer evidence that the 1968 amendments were independently tainted by a discriminatory motive. But they didn’t, arguing instead that evidence of discriminatory intent in 1968 wasn’t necessary because they were challenging only those provisions included in the original law.

A majority of Mississippians voted to approve the amendments after two-thirds of the state legislature proposed them. But the ballot allowed the voters to vote only “For Amendment” or “Against Amendment.”

They weren’t given the opportunity to vote on each crime, so they hadn’t been reenacted, they argued.

Informed Disagreement

Judge Jennifer W. Elrod wrote a short dissent saying that because Mississippians were never given the option to remove the racially tainted list, she wasn’t “satisfied that the relevant parts of § 241 have been ‘reenacted.’”

Judge Catharina Haynes also wrote a solo dissent, stating that the court was “wrong to conclude” that the subsequent amendments were “enacted though a ‘deliberative process’ capable of cleansing the discriminatory taint of 1890.’”

Judge James E. Graves Jr.'s dissent, joined by judges Carl E. Stewart, James L. Dennis, Stephen A. Higginson, and Gregg Costa went further.

Even assuming the majority is correct that the intent of the 1968 legislature is what matters here, Graves said there’s plenty of evidence that the Mississippi legislature wasn’t acting in good faith.

The majority said the social and political climate in Mississippi alone failed to carry plaintiffs’ burden, which Graves disputed.

“It’s hard to imagine an electorate so relentlessly active in its resistance to racial equality was somewhere suddenly race neutral in their handling of a racially motivated provision in its constitution.”

Graves also invoked his own memories, including a cross being burned on his grandmother’s lawn in 1963.

“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 said.

Ongoing Development

The Eleventh Circuit has embraced the Fifth Circuit’s reasoning in Cotton and is considering a similar challenge to Alabama’s new felony-disenfranchisement law.

The challengers in that case, Thompson v. Alabama, focus on the state’s reenactment of the “moral turpitude” provision contained in the original provision, arguing that continues to have a disparate impact on Black Alabamians.

Alabama used convictions for “crimes of moral turpitude” to “effectuate its racist convict leasing system for several decades,” and the drafters of the original 1901 version “understood that the moral turpitude standard’s flexibility would allow for selective disenfranchisement of Black citizens,” the challengers argue.

“The 1996 process was merely a housekeeping process designed to eliminate other voter qualifications previously deemed unconstitutional, and no substantive change was made to the ‘moral turpitude’ provision,” their brief claims.

Oral arguments were held late last year.

This feature was adapted in this week’s Bloomberg Law—Litigation newsletter. Bloomberg Law subscribers may sign up here.