Justin Matheny, the state attorney representing Mississippi Attorney General Lynn Fitch, argued in federal court on Wednesday that a provision of the state Constitution adopted in 1890 designed to prevent African Americans from voting should be upheld.
During oral arguments on Wednesday before the full panel of the U.S. 5th Circuit Court of Appeals in New Orleans, Matheny said that the constitutional provision disenfranchising people convicted of certain felonies is, in fact, constitutional.
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 before the 5th Circuit Court of Appeals this week was filed in 2017 on behalf of Roy Harness, who was convicted of forgery in 1986 and recently received his bachelor’s degree in social work from Jackson State University. Harness lost his right to vote because of his conviction and is challenging the constitutionality of the state disenfranchisement provision. Other Mississippi plaintiffs, such as Kamal Karriem, who have lost their voting rights, also are included in the lawsuit.
In federal court on Wednesday, Matheny’s main defense of the provision was based on two occasions the Legislature offered proposals to the voters to change those provisions of the Constitution. In 1950, the Legislature proposed, and voters approved, removing burglary from the list of disenfranchising crimes. And in 1968, murder and rape were added to the list of disenfranchising crimes.
But Donald B. Verrilli, former solicitor general in the Barack Obama administration arguing on behalf of the plaintiffs, argued that voters never had the opportunity to vote up or down on the eight specific crimes that state leaders said were made disenfranchising because of their belief that the crimes were more likely to be committed by African Americans.
The crimes were placed in the Constitution with racist intent, making the provision “unconstitutional and therefore invalid from the moment it was adopted,” Verrilli said.
He pointed out that if Mississippians had voted down the language in 1950 removing burglary from the list or the 1968 amendment adding rape and murder, the original crimes still would be enforced.
Still, some judges on the conservative-leaning court argued that because the Legislature did act on those occasions, that may be reason enough to take away the “racist taint” and leave the original disenfranchising crimes in the Constitution.
But upon questioning by other judges, Matheny conceded that no matter how Mississippians voted in 1950 and 1968, those original crimes still would be in the Constitution and people convicted of them would face a lifetime ban on voting.
Besides being in the Constitution, Matheny argued the Legislature in later years did place those original disenfranchising crimes in general law. The action on the Legislature to place the crimes in general law in later years removed racist motivation from the 1890 action, he said.
It was pointed out to Matheny by members of the court that the original state Constitution had a provision preventing African Americans from owning guns, which is clearly unconstitutional. He was asked whether it would be constitutional if such language was in in general law instead of the state Constitution.
“Perhaps not in that hypothetical,” Matheny said.
Matheny also was asked why other crimes viewed by the Legislature as more serious because they carried longer sentences — such as certain child exploitation offenses or kidnapping and drive-by shootings — were not made disenfranchising, but lesser crimes, such a bigamy and forgery, were.
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.
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 still would 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 the rights restored without a two-thirds vote of both chambers of the Mississippi Legislature or by a gubernatorial pardon. The Legislature — and most governors — has been extremely reluctant to restore those rights.
Both the Southern Poverty Law Center and the Mississippi Center for Justice filed separate lawsuits challenging Mississippi’s felony voting restrictions. The case heard by the panel Wednesday was filed by the Center for Justice. The SPLC filed a brief in support of the Justice Center’s lawsuit., Earlier this year a three judge panel of the 5th Circuit rejected the arguments of the Justice Center lawsuit. But the case was revived when the full panel agreed to hear it.
“This list of eight disfranchising crimes is the last remaining vestige of the racist voting provisions from the 1890 Mississippi Constitution, and we are glad the full U.S. Court of Appeals is looking hard at this case,” said Rob McDuff of the Center for Justice. “The arguments went well and we hope the Court will nullify the list since it is clearly unconstitutional.”
The case was argued Wednesday via video conference. It is not clear when the court will rule on the case.