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New life has been breathed into a lawsuit attempting to overturn Mississippi’s lifetime ban on voting for people convicted of certain felonies.
The full panel of the U.S. 5th Circuit Court of Appeals has agreed to hear the lawsuit seeking to strike down the Jim Crow-era provision that framers of the 1890 Mississippi Constitution said was designed to try to prevent African Americans from voting.
Mississippi denies a higher percentage of its residents the right to vote because of felony convictions than any state in the country. In Mississippi, 235,150 people — or 10.6% of the state’s voting age population — have lost their right to vote, according to The Sentencing Project. Under the same restrictions, 130,500 Black Mississippians — or 16% of that voting age population — cannot vote. Since 2016, Mississippi has moved from second to first highest percentage in the nation.
The lawsuit, which challenges the constitutionality of the disenfranchisement provisions and was filed by the Mississippi Center for Justice, appeared dead in the water after a three-judge panel of the 5th Circuit Court of Appeals in February rejected efforts to continue the lawsuit. But last week, the full panel of the Appeals Court agreed to hear the case. Oral arguments most likely will begin the week of Sept. 20.
“This is a big step forward in this case, which we filed in 2017 to remove the remnants of this racist 1890 provision from Mississippi’s Constitution,” Center for Justice attorney Rob McDuff, who filed the lawsuit, said in a statement. “We are now in front of the full complement of 17 active Court of Appeals judges who will take a fresh look at whether the unconstitutional motivation behind this law requires that it be struck down.”
In the 1890s, the Mississippi Supreme Court said the disfranchisement of felons was placed in the Constitution “to obstruct the exercise of the franchise by the negro race” by targeting “the offenses to which its weaker members were prone.” McDuff said the provision’s intent was the same as the poll tax, the literacy test and other Jim Crow-era provisions that sought to prevent African Americans from voting.
Those crimes placed in the Constitution where conviction would cost a person the right to vote were bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, bigamy and burglary. Those were crimes that the 1890 framers believed African Americans were more likely to commit.
Under the original language of the Constitution, a person could be convicted of cattle rustling and lose the right to vote, but those convicted of murder or rape and still be able to vote — even while incarcerated.
In 1968, the crimes of murder and rape were added as disenfranchising crimes. But even today, a person could be convicted of writing a bad check and lose the right to vote, but be a major drug kingpin locked up in prison and still vote. The lawsuit does not seek to overturn the voting ban for those convicted of murder or rape.
Under the Mississippi Constitution, a person who loses his voting rights because of a felony conviction cannot have them restored without a two-thirds vote of both chambers of the Mississippi Legislature or by a gubernatorial pardon. The Legislature has been reluctant to restore those rights.
In the 2021 session, the House passed bills to restore voting rights to 21 people convicted of felonies, but the Senate rejected all but two of those bills.
“We are committed to challenging racial discrimination in voting on all fronts, including this remaining vestige of the infamous 1890 constitutional plan to steal the vote from Black people,” said Vangela M. Wade, president and chief executive officer of Mississippi Center for Justice. “At a time when most states have repealed their disfranchisement laws, it is time to remove from Mississippi’s Constitution this backward provision that was enacted with such a vicious purpose.”
Mississippi is in the minority of states — less than 10 — where voting rights are not automatically restored for people convicted of felonies either after they complete their sentence or at some point after completing parole or probation.
The lawsuit was filed on behalf of Roy Harness and Kamal Karriem. According to a statement from the Center for Justice, “Harness is a military veteran who was convicted of forgery in 1986 during a period of drug addiction. He served his sentence and later kicked the habit and went on to earn a degree in social work from Jackson State at the age of 62. Karriem is a former city council member in Columbus who was convicted of embezzlement in 2005. He also served his sentence and later became a pastor and one of the owners and operators of his family’s restaurant.”
Other attorneys working on the case for the Center for Justice include former Mississippi Supreme Court Justice Fred Banks; civil rights lawyers David Lipman and Armand Derfner and former U.S. Solicitor General Don Verrilli. Verrilli is expected to argue the case before the 5th Circuit Court of Appeals.
Editor’s note: Vangela M. Wade is a member of Mississippi Today’s board of directors.