Jackson attorney Rob McDuff of the Mississippi Center for Justice discusses with Mississippi Today’s political reporters Bobby Harrison and Geoff Pender the efforts of him and others to invalidate a state constitutional provision crafted in 1890 to prevent African Americans from voting.
Read a transcript of the episode below.
Adam Ganucheau: Welcome to The Other Side, Mississippi Today’s political podcast. I’m your host, Adam Ganucheau. The Other Side lets you hear directly from the most connected players and observers across the spectrum of politics in Mississippi. From breaking news to political strategy to interviews with candidates and elected officials, we’ll bring you facts, perspectives and context that helps you cut through the noise and understand all sides of the story.
Geoff Pender: Welcome to The Other Side podcast. I’m Geoff Pender with Mississippi Today. I’m joined here today with my colleague Bobby Harrison, and we have a special guest today. It’s noted civil justice lawyer Robin McDuff, who for today’s purposes attorney for the Center for Justice. Rob is a Hattiesburg native I believe, been a long time attorney in Jackson and from looking at a few things here today, I know that his alma mater Harvard Law School has referred to him as “Atticus Finch with a laptop.”
I think that’s a good description. Before we get into the case today, Rob, how are you doing? Good to have you on.
Rob McDuff: I’m fine. I’m fine, Geoff. And I’m really pleased to be with you and Bobby, who are two of my favorite journalists.
Geoff Pender: You must not get out much is all I can say. Anyway, look, today, we’re talking about a case that’s been in the news.
Bobby wrote about it this week as well about the federal lawsuit involving Mississippi’s Jim Crow-era voting ban for people convicted of felonies. Rob, could you give us a a quick overview of that case and maybe a quick update of what transpired this week?
Rob McDuff: The case was styled by my organization the Mississippi Center for Justice in 2017, and we challenged a list of crimes sort of eight crimes and categories of crimes for which a person can be permanently barred from voting if convicted of any of them. And this list was adopted in 1890 as part of sort of the racist 1890 Constitutional Convention, which was designed to take the vote away from Black people who had attained it when slavery was abolished at the end of the Civil War, and these particular crimes were chosen because they were believed to be committed disproportionally and predominantly by Black people.
Crimes that were believed to be committed mostly by white people were not included at that time, and so this list was one of many devices, including poll taxes, literacy tests, understanding clause that were part of that 1890 Constitution that of course kept Black people from voting for the next 75 years in Mississippi for the most part. All of those other devices have been dismantled as a result of federal court decisions and the Voting Rights Act of 1965. This particular provision, this list of eight crimes regarding felon disenfranchisement still exists today and is still in operation today. And so we filed the lawsuit to remove this last vestige of the Jim Crow, 1890 Constitution sections relating to elections and voting.
Bobby Harrison: Rob, we’ve been trying to get you in here for a long time, so I appreciate you doing this. And first of all, Atticus Finch thing, when I first read that, the first thing I thought is, “I bet he’s not the marksman that Atticus Finch was.”
Rob McDuff: Also, I want to clarify that to the extent that I am compared to Atticus Finch, I want to be the original Atticus Finch, not the Atticus Finch of the last unpublished novel that’s surfaced a couple of years ago who is much more, much more old-fashioned and right wing in his attitudes than the original Atticus Finch.
Bobby Harrison: a good point too. Oh, look, see, if I have this right. As far as the lawsuit, you can tell me I’m wrong at the end. The vast majority of states, once a person is convicted of a felony, finishes his sentence, is pardoned, does parole or whatever, at some point in time, in most states people get their voting rights back. But in Mississippi, that’s not the case for certain crimes.
Now the courts have said that states can have laws to disenfranchise felons even though most states don’t have laws to disenfranchise them for a lifetime, but the courts have not said that that was wrong. So you’re not challenging that even though I think that’s where I don’t understand why that’s not equal protection issue, but at any rate so you’re just focusing on these crimes as it relates to the issue of race and preventing Black people from voting back in 1890. Is that correct? Did I get that right?
Rob McDuff: Yeah. Yeah. We’re challenging the specific list of eight crimes or categories of crimes that is in the Mississippi Constitution, was put in there in 1890.
Now there originally were nine. One of them, burglary, was in the original list. It was removed by state Constitutional amendment in 1950, and then two others were added, murder and rape, you know, two of the most serious offenses in the criminal law in Mississippi and anywhere else.
Those were added in 1968, and we’re not challenging those two. We are challenging the others, which were part of this racist 1890 list. Now you’re right, the U.S. Supreme Court has said that states have the power to disenfranchise felons. They can either just disfranchise all felons.
They can just stretch out some felons, but they can’t do it on the basis of selecting crimes because they believe these are crimes that are committed mostly by Black people, which is what Mississippi did in the 1890 Constitution in which is why we are challenging that particular list.
And you’re right that under Mississippi law, the disfranchisement is permanent. You are barred from voting ever again, even if you have served your sentence for those particular crimes. Many states have previously had provisions that permanently barred all felons from voting or some felons from voting, but there’s been a real trend in recent years to get away from that and to adopt and to eliminate these provisions that once barred people from permanently voting and instead most states have gone to a system where if you have served your sentence, you can vote again. In fact, there are less than 10 around the country that still have permanent disenfranchisement for some or all crimes.
And Mississippi is one of those.
Bobby Harrison: Why is that not an equal protection issue? I mean, and I’m saying that as someone that knows nothing about the law, but it just seems to me that it’s not fair that if I commit a crime in, I don’t know, California, I’m going to get my rights back. But I commit a crime in Mississippi, I’m not going to get my rights back.
Rob McDuff: Right. Yeah, no, I agree. It is not fair, you know, and I don’t think it should be that way, but the U.S. Supreme Court has said that the administration of election laws and who can and cannot vote is generally a matter for each state, and therefore the felon disenfranchisement laws are a matter for each state.
Now, there are certain aspects of election law that are not subject to state by state regulation, but instead you know, are subject to the federal Constitution. And for example, you can’t target characteristics based on race to prevent people from voting. But beyond that, beyond a few other areas, the decision generally about who can vote and more particularly about which crimes are disqualifying belongs to each state.
Geoff Pender: This may be either for you Rob or Bobby, either one. Don’t want you to speak for counsel opposite necessarily, so to speak, but what exactly were the arguments this week from the other side, so to speak, the state trying to uphold this?
Rob McDuff: Yeah, the and by the way, what I haven’t really mentioned yet as to how we got here.
I told you we had filed this lawsuit. The federal district judge in Jackson Judge Jordan ruled against us in part based on our precedent from a prior case from the 1990s. We appealed that. A three judge panel of the U.S. Fifth Circuit Court of Appeals ruled against us as well.
And then we filed a petition, what’s called a petition for rehearing en banc, and we asked the entire Court of Appeals, all 15 judges, to review the case, and they agreed to do so. And yesterday, there was an argument before those 15 judges to discuss the case and why we believe we’re right and why the attorney general’s office says we are wrong.
And actually my co-counsel Don Verrilli from Washington D.C., who is a member of the board of my organization, the Mississippi Center for Justice, a long time friend of our organization. And many of us personally who was also the U.S. Solicitor General in the justice department under President Obama. He’s just a long time, very experienced appellate advocate before the Supreme Court and the courts of appeals around the country.
He presented our side of the case yesterday, and the the attorney general’s argument is that because burglary was removed in 1950 and murder and rape were added in 1968, that somehow that the tank of the racism from 1890 has been dissipated. And that it basically should be viewed as a totally new provision that was not conceived in racism, somehow now race neutral because these changes have been made and therefore is Constitutional. And we just, we disagree firmly with that when crime was removed in 1950 and murder and rape were added in 1968, which we do not challenge, the eight remaining crimes and categories of crime on the list from 1890 are unchanged.
And no one ever reconsidered those. No one has ever put it up to a vote of the people as to whether they get rid of those or keep those. And no one has ever given a non-racial explanation for keeping them, and in light of that, they’re still infected with the original racism that prompted their inclusion.
And if you think about it, you look at this list of these eight crimes, robbery, theft, arson, false pretenses, perjury, forgery, embezzlement, and those are not the worst crimes on the books. And the notion that those would somehow disqualify a person from voting, but you can’t get disqualified for child molestation, for aggravated assault, for drive-by shooting, for kidnapping, for, you know massive frauds ventures. Those, you know, it’s just crazy. The only reason anyone would conceive of a list like this is the reason that they did it in 1890. It’s because they believed these crimes were disproportionately committed by Black people.
And so given that sort of racist infection for this, it is clearly unConstitutional and we hope that the federal courts are gonna nullify it.
Bobby Harrison: Yeah. As a point of fact, not only do you not get disenfranchised for certain crimes, for serious crimes that are not on that list, you also, theoretically, while you’re being incarcerated, you can still vote, which is kind of bizarre.
Rob McDuff: Yeah. Yeah. Yeah. As you pointed out in your article, Bobby, you could get disfranchised and can’t ever vote if you write a bad check, but not if you’re a drug kingpin. I mean, it’s just crazy. There’s no non-racial explanation for it, and I think the attorney general’s arguments are just totally, totally wrong.
Bobby Harrison: How did you think the hearing itself went? I mean, I listened to it, and man, it’s gotta be tough for an attorney. You’ve done it many times. You weren’t arguing this particular case, but you’re sitting there trying to make your argument and in this case, 15 judges who have no restraints whatsoever interrupted you, never let you finish your thoughts. Often, you answer one judge’s question and another judge asks you a question and you never finish the first question from the first judge. I mean, it’s gotta be a nerve wracking process.
Rob McDuff: Yeah. It’s really big and sort of in the middle of an arena where balls are just being fired at you from all different sides. But yeah, that kind of makes it more interesting. And for those of us who enjoy being in the courtroom and enjoy arguing cases, it’s a challenge, but it’s also interesting to be in the middle of that kind of scene.
But I thought the arguments went pretty well. I mean, obviously there were some judges who expressed skepticism about our case, and there were judges who expressed skepticism about the attorney general’s case and the attorney general’s office’s argument. But I felt like most of them got the point that we were trying to get across.
And so, you know, I’m not gonna make a prediction on how it’s going to come out, but you know, we were very pleased when the full 15 judges agreed to review the case in the first place. And the arguments yesterday indicated to us that many of them understood our points. And so I think, you know, they’re all going to go back and discuss it, and they’re all going to vote.
They’re going to make a decision and it’ll probably be a few weeks, maybe even a few months before we know it, but I feel like we have a shot.
Bobby Harrison: And would this be something that if either side doesn’t prevail, that might go to the Supreme Court and at least try to get a hearing before the Supreme Court?
Rob McDuff: Well, if we are not successful with the 15 judges of the Court of Appeals, we definitely will seek review from the Supreme Court. I don’t know what the attorney general’s office will do if we prevail, and I’m sure that’s something they may not have even made a decision on that.
I hope they wouldn’t because I don’t see no reason why the attorney general would want to continue a defense of this racist mist from 1890, but we’ll just have to see.
Geoff Pender: Rob and Bobby, you know, I can’t help as a lay person to look at this maybe with a little sense of irony in that there’s a big move afoot, both nationally and in Mississippi, to rehabilitate prisoners, to keep our prisons less full, to give incentives to people to do better and rehabilitate and everything. It seems like, you know, this would be an impediment to that or an athema to that whole movement to keep thousands of people unable to vote, even after they’ve done well or served their time.
Rob McDuff: Yeah, I agree. And you know, it’s very interesting. I mean, one of our plaintiffs is a guy named Roy Harness who was military veteran served during the Vietnam War era. He came out of the military. He had some really good jobs with national companies, and then at some point he got addicted to drugs. And in the 1980s he wrote a bad check, was arrested, convicted, served some time on it— really crazy he had to go to prison on that, but he did—got out, eventually kicked the drug habit, and at the age of 62 he went and earned his bachelor’s degree at Jackson State. And then he went on and earned his master’s degree in social work at Jackson State, and now works with with addicts helping them get off drugs.
And this is the kind of guy who ought to be able to vote. I mean, everybody ought to be able to vote who qualifies, but he’s a real example of somebody whose life is totally different than the picture you would have of him if you just looked at his criminal conviction for writing a bad check. And it makes no sense to permanently deprive him of the vote even after he has served his sentence, and it’s just an example of how sort of ridiculous permanent disenfranchisement is as a general matter and how it’s particularly ridiculous when you had this crazy quilt of eight crimes chosen in 1890 for racist reasons.
Geoff Pender: Let me ask too, Bobby, I know you touched on this in your story, and I believe you’ve written at length about this in years past, but reenfranchisement in Mississippi is very difficult.
Bobby Harrison: Yeah, we’ve been talking about permanent disenfranchisement. There is a small opportunity for—and Rob can speak to this— for people to regain the right to vote, but it’s very difficult and it doesn’t happen very often. So, I mean, you can explain that process, Rob.
Rob McDuff: Yeah, and there’s a separate lawsuit challenging that process, not brought by us but by the Southern Poverty Law Center and a law firm in New York, which is separate from our case, but it’s a system where the Legislature can restore the right to vote for people convicted of felonies, but they do it by, you know, an individual bill passed for each particular person. So a legislator has to say, “I want to restore the voting rights of Mary Smith and John Brown.” And then it has to be passed by the Legislature. And I think the reason it was set up that way was so that they could restore the rights of their white friends back in 1890 and not Black people. And so it’s sort of a crazy system and a few people gained their right to vote again through that ad hoc system, but not many. This is a practical matter, not many of these bills are filed. So, you know, Mississippi if they’re going to disenfranchise people permanently, they need a sort of a better system of doing it. I mean, hopefully we get this struck down.
Murder and rape will still be disenfranchising crimes even if we win this. But it’s the, you know, the fact that it came out of the 1890 Constitution and for the reasons it did make it clearly unConstitutional with respect to those particular crimes.
Bobby Harrison: I’ve done research on this. Less than 10 people per year get their rights restored.
And it takes a two-thirds vote at both chambers, and it has to be signed by the governor. And it’s just, I mean, it almost comes down to a case where you have to know somebody who knows a legislator, you know the legislator yourself. It’s a very, very cumbersome process, but if y’all do prevail what would happen next? I mean, would the Legislature have to do something or, I mean, what would be the lay of the land then?
Rob McDuff: You know, I mean, in our view that, you know, once we prevail and there’s a decision holding this from 1890 is unConstitutional and can no longer be enforced is that it just in effect removed from the law, and the law will provide that you can be permanently disfranchised if convicted of murder.
And now whether the Legislature then would start looking at it and thinking about doing something else, yeah, we just have to see, but in our view, that is the proper outcome in this case as a legal matter.
Bobby Harrison: Would that take a general law or a Constitutional amendment or have you even researched that?
Rob McDuff: You mean to change it, to do something beyond murder and rape?
Bobby Harrison: Yeah.
Rob McDuff: In my view that takes a Constitutional amendment because section 241 of the Constitution says that if you are a resident of Mississippi, you’ve been a resident for whatever a period of time is the residency requirement now and you are a citizen of the United States, you are entitled to register to vote as long as you have not been convicted of any of the following crimes. And then they had the eight crimes or categories of crimes from 1890 and then murder and rape. So if we win the case, the original eight are removed and basically it’s murder and rape.
And so if you’re gonna change that, you got to get a Constitutional amendment in our view because the Constitution says that unless you’re convicted of these crimes, you are eligible to vote. And I don’t think the Legislature just by passing a statute can add to that list.
I think that because of the language of the Constitution, it has to be done through a Constitutional amendment. Now, interestingly, in 2012, the Legislature passed the law saying if you’re convicted of voter fraud you cannot ever vote again. I don’t think that is proper under the Constitution because the Constitution says you are allowed to vote unless convicted of any of the following crimes, and voter fraud is not in that Constitutional list.
So no one’s ever challenged it in court, but out of the strong view any addition to the list of disenfranchising crimes has to be done through Constitutional amendment and can’t be done simply by statute.
Geoff Pender: Rob, if you all prevail in your view, would this be like retroactive, anyone who had been disenfranchised in the past would be allowed to vote?
Rob McDuff: Yes. It would be retroactive and prospective too, so that anyone who’s been convicted of one of these crimes, given that the list is unConstitutional, would then be allowed to register to vote. And that in the future, you could not be barred from voting or removed from the voter rolls simply because of a conviction of one of those crimes.
Bobby Harrison: We appreciate you doing this. You’ve been involved in so many big cases in your career, the Curtis Flowers case this year. I guess that’s still kind of an ongoing, and there’s just so many. I mean, I knew you before then, but I kind of got to know you pretty well back in December of 2001 when we spent seems like days in Pat Wise’s chancery court.
Rob McDuff: Yeah, that was that was the the congressional redistricting litigation after Mississippi was forced to go from five seats to four, and we were in chancery court. We were in federal district court. We were in the Mississippi Supreme Court, and we were in the U.S. Supreme Court all in one sort of big litigation ball of wax.
It was quite, quite fascinating.
Bobby Harrison: Well, we appreciate you doing this. Is there anything else you want to add that we missed asking you about?
Rob McDuff: No, as usual, y’all are very thorough.
Bobby Harrison: Well thanks for doing this.
Rob McDuff: Thank you, Geoff. Thank you, Bobby.
Geoff Pender: Thank you.
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