Amendments were made in 1950 and 1968, with the 1968 amendment adding rape and murder. Both amendments were passed by the people of Mississippi at the time. The 1968 amendment came after a 1965 federal civil rights commission criticized the law’s racist wording and the “widespread racist voting practices at the time, saying the restriction was designed to “produce the same effect” as an “express denial” . The voting rights of black citizens, according to the decision. The committee also criticized the provision for not including more serious crimes such as rape and murder. In this most recent challenge to the law, Roy Harness and Kamal Karriem, two Black Mississippians convicted of forgery and embezzlement, respectively, who lost their right to vote with their convictions, filed suit in August 2019 challenging the their removal under the equal protection clause.
According to the majority and dissenting opinions, the law was created with racist intent to prevent blacks from voting.
“It is undisputed that the state’s constitutional convention was steeped in racism and that ‘the state was motivated by a desire to discriminate against blacks’ when the 1890 constitution was adopted,” the court’s 10-7 majority wrote in an unsigned opinion.
While the law’s writing was racist, the majority opinion found that because the law had been amended twice, which required approval by both the legislature and the popular vote of the electorate, it had only been “revised” in 1968 and did not it now existed in the same context as its racist principle. The court ruled that the 1968 rewrite had “removed discrimination” and could not be overturned based on the racial intent they recognized informed an earlier form of the law. ,
“This provision was part of the 1890 plan to take the vote away from blacks who had won it in the wake of the Civil War,” said Rob McDuff, director of the Impact Litigation Project at the Mississippi Justice Center, the organization that represented the Harness and Karriem in court, he said in a statement after the ruling.
“Unfortunately, the Court of Appeals is allowing it to remain in place despite its racist origins,” McDuff said. Despite this setback, he said they will appeal the decision to the US Supreme Court.
The court found that while the law was created with racist intent, it has been amended and the plaintiffs had failed to prove that the current version of the law, enacted in 1968, was “racistly motivated.”
The three dissents filed by Justices Jennifer Walker Elrod, Catharina Haynes and James E. Graves Jr. note that amendments approved by popular vote may not necessarily be mandated.
“The Mississippi electorate was never asked to either remove or approve eight of the original nine felonies. When burglary was removed in 1950 and when rape and murder were added in 1968, Mississippians had only an ‘up or down’ choice to approve § 241 as amended — not to approve § 241 as it then existed,” wrote Judge Elrod in her dissent.
In his dissent, joined by Justices Carl E. Stewart, James L. Dennis, Stephen A. Higginson and Gregg J. Costa, Graves also supported the majority’s contention that because the law had been “represented” by the 1968 vote, he had been purged of his racist intentions.
“Even if we entertain this flawed ‘representation’ theory, a cursory glance at Mississippi’s known history creates a real dispute about whether the legislature and electorate acted with discriminatory intent in 1968,” Graves wrote.
“Even a cursory review of Mississippi history up to 1968 shows that life for Black Mississippians in this era was little better than it was for their grandparents in 1890,” he wrote.
