The United States Supreme Court has postponed for the eighth time this year a decision on whether to hear a case challenging the constitutionality of a Mississippi provision enacted in 1890 with the intent of preventing African Americans from voting.
The case is an appeal of a decision last year by the U.S. 5th Circuit Court of Appeals upholding a provision imposing a lifetime ban on voting for many people convicted of felonies. The lifetime ban was imposed on certain crimes that the framers of the 1890 Mississippi Constitution believed at the time Black people were more likely to commit, the 5th Circuit conceded in upholding the provision.
It is not known what the eight postponements in deciding whether to hear the case might mean.
“The Supreme Court takes about one of every hundred cases it’s asked to take,” said Rob McDuff, director of the Impact Litigation Project at the Mississippi Center for Justice, and part of the group asking the nation’s high court to hear the case. “But the troubling racial history of this provision makes it a more likely candidate for review than most of the other cases. I assume the repeated postponements mean the justices are considering this one very carefully. We will see.”
The Supreme Court justices are scheduled to meet in conference on Friday to decide if they will take up any of the cases currently pending. Before this latest postponement, the Mississippi case was supposed to be among those cases discussed during the Friday conference.
The Mississippi felony suffrage case had been on the schedule to be taken up at seven past conferences of the Supreme Court this year. In each of those instances, like this week, the justices opted to postpone a decision on the case.
Four of the nine judges must agree to take up a case on appeal in order for the high court to hear it. According to the U.S. Courts webpage, “the Court accepts 100-150 of the more than 7,000 cases that it is asked to review each year.”
The Mississippi Center for Justice and others filed the lawsuit currently pending before the Supreme Court on behalf of Mississippians who lost their voting rights after being convicted of felonies. Mississippi is among a handful of states — less than 10 — where people do not regain their voting rights at some point after completing their sentence.
Those challenging the lawsuit say the 1890 provision is unconstitutional because it was enacted for a discriminatory purpose, thus having a “racial taint.” State Attorney General Lynn Fitch argued the “racial taint” had been removed because of action in more recent times, and a majority of the 5th Circuit agreed.
In 1950 the Legislature passed a proposal approved by voters to remove burglary as one of the disfranchising crimes. And in the 1960s, the Legislature and ultimately the voters approved a provision making murder and rape disenfranchising crimes.
Those changes, the majority found, removed the “racial taint” from the original 1890 language. But McDuff pointed out that those changes were made during an era of intense racial conflict and discrimination in the state. Perhaps, more importantly, the changes did not allow Mississippians to vote on whether to remove lifetime bans from voting on people convicted of other felonies.
Or as Court of Appeals Judge James Graves wrote in his dissent, “Mississippians have simply not been given the chance to right the wrongs of its racist origins. And this court … deprives Mississippians of this opportunity by upholding an unconstitutional law enacted for the purpose of discriminating against Black Mississippians on the basis of race.”
Fitch’s office also argued that state commissions pondered changing the felony suffrage provision in the 1980s and opted not to do so, thus removing the racial taint.
Those crimes placed in the constitution where conviction costs a person the right to vote are 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 would still be able to vote — even while incarcerated.
In Mississippi, most people with felony convictions who lose their voting rights must petition the Legislature to get a bill passed by a two-thirds majority of both chambers to regain voting rights. Normally only a handful (less than five each year and none in 2023) of such bills are successful each session. There is also the option of the governor granting a pardon to restore voting rights, but no governor has granted pardons since Haley Barbour in 2012.
Editor’s note: The Mississippi Center For Justice President and CEO Vangela Wade serves on Mississippi Today’s board of trustees.