Case: 19-60632 Document: 00515753740 Page: 1 Date Filed: 02/23/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
No. 19-60632 February 23, 2021
Lyle W. Cayce
Clerk
Roy Harness; Kamal Karriem,
Plaintiffs—Appellants,
versus
Delbert Hosemann, Secretary of State of Mississippi,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
No. 3:17-CV-791
Before Smith, Higginson, and Engelhardt, Circuit Judges.
Jerry E. Smith, Circuit Judge:
Roy Harness and Kamal Karriem lost the right to vote in Mississippi
when they were convicted of crimes enumerated in § 241 of the Mississippi
Constitution. They claim that list was enacted with racially discriminatory
intent in violation of the Fourteenth Amendment. But they are not the first
to make that claim—over twenty years ago, we held that amendments to
§ 241 cured it of its discriminatory taint. Under the rule of orderliness, we
are bound by that decision, so we affirm the summary judgment dismissing
their claim.
Case: 19-60632 Document: 00515753740 Page: 2 Date Filed: 02/23/2021
No. 19-60632
I.
From the Civil War until 1890, Mississippi denied the franchise to
those convicted of any crime punishable by imprisonment in the state peni-
tentiary.1 But in 1890, Mississippi replaced its generic description of disen-
franchising crimes with a list of specific disenfranchising crimes: “bribery,
burglary, theft, arson, obtaining money or goods under false pretenses, per-
jury, forgery, embezzlement or bigamy.” Miss. Const. art. XII, § 241
(1890). Its reason for doing so was discriminatory. The state made no secret
of its motive: “Restrained by the federal constitution from discriminating
against the negro race, the [1890 Mississippi constitutional] convention dis-
criminated against its characteristics and the offenses to which its weaker
members were prone.” Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896). The
convention believed that blacks were “given rather to furtive offenses than
to the robust crimes of the whites,” so “[b]urglary, theft, arson, and obtain-
ing money under false pretenses were declared to be disqualifications, while
robbery and murder and other crimes in which violence was the principal
ingredient were not.” Id.
Mississippi amended § 241 in 1950, removing burglary from the list,
and again in 1968, adding murder and rape. 1950 Miss. Laws 959–60; 1968
Miss. Laws 1074–75. In both instances, § 241 was amended on two-thirds of
both legislative houses’ agreeing on the newly worded section, and then
approval of the new section by a simple majority of the whole electorate.
1
See THE REVISED CODE OF THE STATUTE LAWS OF THE STATE OF MIS-
SISSIPPI 86, 618 (1871) (disenfranchising, through ch. 5, art. II, § 343, anyone convicted of
“infamous crimes,” defined in ch. 59, art. XIII, § 2855, as “offences punished with death,
or confinement in the penitentiary”); The Revised Code of the Statute Laws
of the State of Mississippi 75, 796 (1880) (disenfranchising, through ch. 4, § 108,
anyone convicted of “any felony,” defined in ch. 78, § 3104 as “offences punished with
death, or confinement in the penitentiary”).
2
Case: 19-60632 Document: 00515753740 Page: 3 Date Filed: 02/23/2021
No. 19-60632
Harness and Karriem are black citizens of Mississippi who have lost
their right to vote because they have been convicted of crimes enumerated in
§ 241. They sued Mississippi’s Secretary of State, contending that § 241
violates the Fourteenth Amendment because it was enacted with a discrim-
inatory purpose. The district court entered summary judgment for the Sec-
retary of State, reasoning that, per Cotton v. Fordice, 157 F.3d 388 (5th Cir.
1998), the discriminatory taint of the 1890 provision was removed by the
amendment processes in 1950 and 1968.
II.
Before discussing the merits, “we must assure ourselves of our juris-
diction.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S.
701, 718 (2007). The Secretary of State contends we lack jurisdiction on the
basis of both standing and sovereign immunity.
A.
“To establish standing under Article III of the Constitution, a plaintiff
must demonstrate (1) that he or she suffered an injury in fact that is concrete,
particularized, and actual or imminent, (2) that the injury was caused by the
defendant, and (3) that the injury would likely be redressed by the requested
judicial relief.” Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1618 (2020). The
Secretary of State acknowledges the plaintiffs’ injury in fact, averring instead
that their injury is traceable not to him but to the county officials responsible
for maintaining voter rolls.
But that is not so. In Mississippi, “the ‘Statewide Elections Manage-
ment System’ . . . constitute[s] the official record of registered voters in every
county of the state.” Miss. Code Ann. § 23-15-165(1). “The Office of
the Secretary of State . . . develop[s] and implement[s] the Statewide Elec-
tions Management System so that the registrar and election commissioners
of each county shall . . . [r]eceive regular reports of . . . convictions for disen-
3
Case: 19-60632 Document: 00515753740 Page: 4 Date Filed: 02/23/2021
No. 19-60632
franchising crimes that apply to voters registered in the county.” Id.
§ 23-15-165(2)(c). Thus, under Mississippi law, the office of the Secretary of
State “ha[s] a role in” removing convicted felons from the voter rolls “and
is in a position to redress it at least in part.”2
B.
For a similar reason, the Secretary of State’s objection that the suit is
barred by sovereign immunity cannot be sustained. “Suits for injunctive or
declaratory relief are allowed against a state official acting in violation of fed-
eral law if there is a sufficient connection to enforcing an allegedly unconsti-
tutional law.” Tex. Democratic Party, 978 F.3d at 179 (quotation omitted).
We have “not spoken with conviction about all relevant details of the ‘con-
nection’ requirement,” but if there is a “a ‘special relationship’ between the
state actor and the challenged statute,” there is certainly a sufficient connec-
tion. Id. That is the case here. The Secretary of State is charged by state law
with “develop[ing] and implement[ing] the Statewide Elections Manage-
ment System,” which serves as the “official record of registered voters in
every county of the state.” Miss. Code Ann. § 23-15-165(2), (1).
County-level officials may also exercise control over voter rolls, but that does
not reduce the Secretary of State’s connection to the enforcement of § 241.
III.
States are permitted to disenfranchise felons. U.S. Const. amend
XIV, § 2; Richardson v. Ramirez, 418 U.S. 24, 54 (1974). But the Constitution
forbids such provisions where their “original enactment was motivated by a
desire to discriminate against blacks on account of race and the [provision]
2
Tex. Democratic Party v. Abbott, 978 F.3d 168, 178 (5th Cir. 2020) (opining on
Texas’s election law), cert. denied, 2021 WL 78479 (U.S. Jan. 11, 2021) (No. 19–1389).
4
Case: 19-60632 Document: 00515753740 Page: 5 Date Filed: 02/23/2021
No. 19-60632
continues to this day to have that effect.”3 The plaintiffs contend that the
portions of § 241 traceable to its original enactment in 18904 are unconsti-
tutional because they were enacted with that precise unconstitutional motive.
We do not write on a blank slate. In Cotton, 157 F.3d at 391, we held
that amendments to § 241 in 1950 and 1968 “superseded the [1890] provision
and removed the discriminatory taint associated with the original version.”
We recognized that Ҥ 241 was enacted in an era when southern states dis-
criminated against blacks by disenfranchising convicts for crimes that, it was
thought, were committed primarily by blacks” and that Mississippi selected
the crimes listed in § 241 for that reason. Id. On the other hand,
Section 241, as enacted in 1890, was amended in 1950, re-
moving “burglary” from the list of disenfranchising crimes.
Then, in 1968, the state broadened the provision by adding
“murder” and “rape”—crimes historically excluded from the
list because they were not considered “black” crimes. Amend-
ing § 241 was a deliberative process. Both houses of the state
legislature had to approve the amendment by a two-thirds vote.
The Mississippi Secretary of State was then required to publish
a full-text version of § 241, as revised, at least two weeks before
the popular election. Finally, a majority of the voters had to
approve the entire provision, including the revision. Because
Mississippi’s procedure resulted both in 1950 and in 1968 in a
re-enactment of § 241, each amendment superseded the previ-
ous provision and removed the discriminatory taint associated
3
Hunter v. Underwood, 471 U.S. 222, 233 (1985); see also United States v. Fordice,
505 U.S. 717, 728 (1992) (requiring states to “eradicate[] policies and practices traceable
to” their prior racially-motivated actions); Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020)
(Sotomayor, J., concurring) (noting that a statute’s legacy of racial animus may persist so
long as the “States’ legislatures never truly grappled with the laws’ sordid history in re-
enacting them”).
4
That is, the crimes enumerated in § 241 besides rape and murder, which were
added in 1968.
5
Case: 19-60632 Document: 00515753740 Page: 6 Date Filed: 02/23/2021
No. 19-60632
with the original version.
Id. (footnote and citations omitted). In other words, as stated in Cotton, “by
amendment, a facially neutral provision like § 241 might overcome its odious
origin,” and § 241 did. Id.
The plaintiffs offer three reasons we are not bound by Cotton, but none
works. First, the plaintiffs suggest that evidence of the actual ballots with
which voters approved the 1950 and 1968 amendments, and introduced for
the first time in this case demonstrate that voters did not have “the option of
re-enacting or repealing the remainder of the original list of disqualifying
crimes. Instead, their only options were to vote ‘For Amendment’ or
‘Against Amendment.’” But Cotton relied not on the particular options with
which voters were presented but, instead, on the “deliberative process” used
to amend § 241. Cotton, 157 F.3d at 391.5
Second, the plaintiffs maintain that because of the racial composition
of the Mississippi legislatures and general resistance to desegregation in Mis-
sissippi at the times of the amendments, they “could not plausibly be consid-
ered steps taken to ‘remove[] the discriminatory taint associated with the
original [1890] version.’” (quoting Cotton, 157 F.3d at 391). Cotton did leave
5
Recently, Cotton’s reasoning was described as relying on the deliberative process:
Both [the 1950 and 1968] amendments involved, first, a deliberative
process that required two-thirds votes of both houses of the state legislature
and, second, assent of the majority of Mississippi voters to ‘the entire
provision, including the revision.’ Cotton, 157 F.3d at 391–92. In light of
that process, we explained that section 241 in its then-present form could be
considered unconstitutional only if the amendments were themselves
adopted with discriminatory purpose.
Veasey v. Abbott, 888 F.3d 792, 821 (5th Cir. 2018) (Graves, J., concurring in part and
dissenting in part) (emphasis added).
6
Case: 19-60632 Document: 00515753740 Page: 7 Date Filed: 02/23/2021
No. 19-60632
open the possibility that § 241 would be unconstitutional “if the amendments
were adopted out of a desire to discriminate against blacks.” Id. at 392. But
the plaintiffs don’t offer any evidence that that was so besides general Mis-
sissippi history fully available to the Cotton court. And, despite that history,
the Cotton panel was convinced that the 1968 amendment adding crimes that
were excluded in 1890 because “they were not considered ‘black’ crimes”
was sufficient to cure the discriminatory taint of the entire provision. Id.
at 391.
Finally, the plaintiffs posit that Cotton was abrogated by Abbott v.
Perez, 138 S. Ct. 2305 (2018), at least as to the parts of § 241 traceable to 1890.
Perez described Hunter as rejecting the theory that, after certain discrimina-
tory disenfranchising offenses were removed from Alabama’s constitution,
“the parts that remained,” were cured of their taint, “because the amend-
ments did not alter the intent with which the article, including the parts that
remained, had been adopted.” Id. at 2325. But Cotton had already distin-
guished the process of constitutional change at issue in Hunter—courts’
declaring certain aspects of the provision unconstitutional—from the delib-
erative legislative amendments at issue here. Cotton, 157 F.3d at 391 n.8.
Perez’s phrase “the parts that remained” refers to the parts of the Alabama
constitution that were still enforceable following judicial decisions, not to the
parts of a provision that are historically traceable to an earlier enactment.
Under the rule of orderliness, “an intervening change in the law must
be unequivocal, not a mere ‘hint’ of how the Court might rule in the future.”
United States v. Tanksley, 848 F.3d 347, 350 (5th Cir. 2017) (quoting United
States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013)). The statement in Perez
is not enough.
AFFIRMED.
7