Case: 19-60632 Document: 00516445896 Page: 1 Date Filed: 08/24/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 24, 2022
No. 19-60632
Lyle W. Cayce
Clerk
Roy Harness; Kamal Karriem,
Plaintiffs—Appellants,
versus
Michael Watson, Secretary of State of Mississippi,
Defendant—Appellee.
Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 3:17-CV-791
Before Richman, Chief Judge, and Jones, Smith, Stewart,
Dennis, Elrod, Southwick, Haynes, Graves, Higginson,
Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and
Wilson, Circuit Judges.
Per Curiam:
The issue before the en banc court is whether the current version of
Miss. Const. art. 12, § 241 violates the Equal Protection Clause of the United
States Constitution. This provision was upheld in Cotton v. Fordice, 157 F.3d
388 (5th Cir. 1998), which was binding on the district court and the panel
decision here, but the court voted to reconsider Cotton en banc. Having done
so, and with the benefit of considerable additional briefing on behalf of
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plaintiffs, we continue to find that Cotton’s result is consistent with the
seminal Supreme Court decision in Hunter v. Underwood, 471 U.S. 222,
105 S. Ct. 1916 (1985). The district court’s judgment is AFFIRMED.
BACKGROUND
I. Mississippi Constitution art. 12, § 241
A historical review of the challenged constitutional provision’s
evolution is necessary to further discussion. In its current form, the
Mississippi Constitution denies the vote to any person “convicted of murder,
rape, bribery, theft, arson, obtaining money or goods under false pretense,
perjury, forgery, embezzlement or bigamy.” Miss. Const. art. 12, § 241.
State statutes incorporate the Section 241 list by reference. 1 Miss. Code
§§ 23-15-11, 23-15-19.
The original version of Section 241 was adopted as part of the
Mississippi Constitution of 1890. It is uncontroverted that the state
constitutional convention was steeped in racism and that “the state was
motivated by a desire to discriminate against blacks” when the 1890
Constitution was adopted. Cotton, 157 F.3d at 391. Shortly afterward, the
state Supreme Court even emphasized this point. See Ratliff v. Beale,
20 So. 865, 868 (Miss. 1896) (acknowledging the “consistent, controlling[,]
directing purpose governing the [1890] convention[:] . . . to obstruct the
exercise of the franchise by the negro race”). One device that the convention
exploited to deny the franchise to blacks was the alteration of a pre-existing
felon disenfranchisement law. 2 Accordingly, Section 241 was reconfigured
1
Mississippi law provides a procedure for disenfranchised felons’ voting rights to
be restored. Miss. Const. art. 5, § 124, art. 12, § 253; Miss. Code §§ 47-7-31, 47-7-41.
These provisions were not argued by the parties or considered by this court.
2
It is uncontested that a state may disenfranchise convicted felons. Section 2 of
the Fourteenth Amendment of the United States Constitution allows states to revoke
2
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in the 1890 Constitution to eliminate voter disenfranchisement for crimes
thought to be “white crimes” and by adding crimes thought to be “black
crimes.” If Section 241 had never been amended, the provision would violate
the Equal Protection Clause pursuant to Hunter. 471 U.S. at 227–28,
105 S. Ct. at 1920. Critically, however, it has been amended.
Since its invidious inception, Section 241 has been reenacted twice
according to the state’s procedures for enacting constitutional amendments.
Those procedures require, first, that the legislature propose an amendment,
and second, that the people ratify it. Only upon an affirmative popular
ratification vote does the amendment take effect. Miss. Const. art. 3, §§ 5,
6; art. 15, § 273. The 1950 amendment removed “burglary” from Section
241’s list of disenfranchising crimes. 3 In 1968, several significant changes
voting privileges to anyone engaged in “rebellion, or other crime.” See Richardson v.
Ramirez, 418 U.S. 24, 54, 94 S. Ct. 2655, 2671 (1974) (“[T]he exclusion of felons from the
vote has an affirmative sanction in § 2 of the Fourteenth Amendment.”).
3
The 1950 amendment went to the voters in its entirety, rewriting Section 241 as
follows:
Every inhabitant of this state, except idiots, insane persons and Indians not
taxed, who is a citizen of the United States of America, twenty-one years
old and upwards, who has resided in this state for two years, and one year
in the election district, or in the incorporated city or town in which he
offers to vote, and who is duly registered as provided in this article, and
who has never been convicted of bribery, theft, arson, obtaining money or
goods under false pretense, perjury, forgery, embezzlement or bigamy, and
who has paid on or before the first day of February of the year in which he
shall offer to vote, all poll taxes which may have been legally required of
him, and which he has had an opportunity of paying according to law, for
the two preceding years, and who shall produce to the officers holding the
election satisfactory evidence that he has paid such taxes, is declared to be
a qualified elector, but any minister of the gospel in charge of an organized
church, or his wife legally residing with him, shall be entitled to vote after
six months residence in the election district, incorporated city or town, if
otherwise qualified.
3
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were made to Section 241, including the addition of “rape” and “murder”
as crimes resulting in denial of the franchise. 4
A multi-stage process led to the ratification of both successive
versions of Section 241. The deliberative process behind the amendments
was consequential. First, each house of the state legislature agreed to the
proposed amendments by a two-thirds majority. Next, the entirety of Section
241 as amended was published two weeks before the popular elections. Then
the amendments were presented to the public for a majority vote. The ballots
presented the voters with two options—to vote “For Amendment” or
“Against Amendment”—and the ballots printed out the entire provision as
amended. The ballots did not disclose Section 241’s then-existing language,
and thus from the face of the ballot alone, the voters would not know what
Section 241 would entail if they voted “Against Amendment.”
The version of Section 241 enacted in 1968 is most relevant because it
remains operative today. 5 In 1965, a federal Civil Rights Commission had
The amendment was enacted by a 66,077 to 14,362 vote. 1952 Miss. Off. & Stat. Reg. 466.
4
The 1968 amendments went to the voters in its entirety, rewriting Section 241 as
follows:
Every inhabitant of this State, except idiots and insane persons, who is a
citizen of the United States of America, twenty-one (21) years old and
upwards, who has resided in this State for one (1) year, and for one (1) year
in the county in which he offers to vote, and for six (6) months in the
election precinct or in the incorporated city or town in which he offers to
vote, and who is duly registered as provided in this article, and who has
never been convicted of murder, rape, bribery, theft, arson, obtaining
money or goods under false pretense, perjury, forgery, embezzlement or
bigamy, is declared to be a qualified elector.
The amendments were enacted by a 136,846 to 59,888 vote. 1968-72 Miss. Off. & Stat.
Reg. 356-57.
5
As a result, we need not address the motivation behind the 1950 amendment.
4
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issued a detailed report condemning Mississippi’s widespread racist voting
practices and denouncing remnants of the 1890 convention’s racist drafting.
Specifically, the Commission criticized the various methods the convention
used to “accomplish the same result” that “an express denial of the
franchise” to black Americans would have accomplished. 6 Among these
devices were residency provisions and poll tax requirements. 7 Additionally,
the Commission took issue with the fact that the “disfranchising crimes were
those to which Negroes were thought to be particularly prone” and that the
“more serious felonies of murder, rape, or assault were not included.” 8
The Mississippi legislature responded to these objections in what
became the constitutional amendment revising Section 241. In 1968, the
Mississippi legislature introduced House Concurrent Resolution No. 5
(“H.C.R. No. 5”), which, among other changes, modified the residency
requirements, deleted the poll tax requirements, and added the supposed
“non-black” crimes of “murder” and “rape” to the disenfranchising crimes
in Section 241. One of the explicit purposes of H.R. No. 5 was “to delete
certain improper parts of the section.” These changes were approved by
popular vote, as required by the state constitution, and resulted in the
reenactment of Section 241 as it stands today. 9
6
Voting in Mississippi, A Report of the United States Commission for Civil Rights,
at 3–4 (1965).
7
Id. at 4–6. The Commission stated that “[t]he requirement of long residency,
two years in the State and one year in the election district, was aimed at the supposed
‘disposition of young Negroes . . . to change their homes and precincts every year.’” Id. at
6.
8
Id.
9
For the sake of completeness, a further amendment of Section 241 was approved
by popular vote in 1972, lowering the voting age from 21 to 18 and reenacting the provision
again in its entirety.
5
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Post-reenactment information is also instructive. In 1984,
Mississippi’s election scheme was scrutinized by a multi-racial Election Law
Reform Task Force, led by Democrat Secretary of State Dick Molpus. The
Task Force held public hearings throughout the state and met with voting
rights lawyers from the U.S. Department of Justice. The Task Force
included members of the legislature, executive branch officials, circuit clerks,
local election commissioners, and members of the public. Over the course of
seven months, the Task Force accepted public comments and deliberated
over the state’s election laws. The Task Force contemplated, inter alia,
whether to amend Section 241 by expanding the list of disenfranchising
felonies. For example, the Task Force’s meeting with the U.S. Department
of Justice involved “much discussion concerning the broadening of
disenfranchising crimes to include all felonies.” Ultimately, however, the
members resolved to leave the law “as is.”
In response to the Task Force’s work, both chambers of the
1985 Mississippi legislature formed committees that also studied these issues
and considered the Task Force recommendations. One joint committee
memorandum recommended expanding Section 241 to include all felony
convictions except for tax evasion and manslaughter. A senate bill was
introduced to that effect. Ultimately, the Mississippi legislature followed the
recommendation of the Task Force and declined to expand the Section 241
list of disenfranchising crimes. Instead, the state’s election statutes were
amended by, among other things, adding two direct references to the Section
241 list of disenfranchising crimes. The amended statutes took effect after
being precleared by the U.S. Department of Justice. 10
10
1986 Miss. Laws, ch. 492. A recent change added voter fraud to the list of
disenfranchising crimes. 2021 Miss. Laws, ch. 517.
6
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II. Current Proceedings
Plaintiffs-Appellants, Roy Harness and Kamal Karriem, are black men
in Mississippi who were convicted, respectively, of forgery and
embezzlement. Both are disenfranchised under current Mississippi law
because of their convictions. They filed suit against the Mississippi Secretary
of State under the Fourteenth and Fifteenth Amendments seeking
declaratory and injunctive relief to restore the voting rights of convicted
felons in Mississippi. They contend that the crimes that “remain” in Section
241 from the 1890 Constitution are still tainted by the racial animus with
which they were originally enacted. Plaintiffs do not challenge murder and
rape in Section 241, which were not part of the 1890 list but were added in
1968.
The district court’s thorough and carefully reasoned opinion granted
the Secretary’s motion for summary judgment. The court acknowledged the
precedential effect of this court’s holding in Cotton that the 1950 and 1968
amendments to Section 241 cleansed the current provision of its previous
discriminatory taint. The district court went further to explain that the
additional public and legislative deliberations in 1984–86 “show[] the state
would have passed section 241 as is without racial motivation.” Plaintiffs
appealed, and a panel of this court affirmed on similar grounds. See Harness
v. Hosemann, 988 F.3d 818, 821–23 (5th Cir.), reh’g en banc granted, opinion
vacated, 2 F.4th 501 (5th Cir. 2021). This court granted plaintiffs’
subsequent request for rehearing en banc.
STANDARD OF REVIEW
A grant of summary judgment is reviewed de novo on appeal. Petro
Harvester Operating Co., L.L.C. v. Keith, 954 F.3d 686, 691 (5th Cir. 2020).
All “evidence and inferences from the summary judgment record are viewed
in the light most favorable to the nonmovant.” Tradewinds Env’t Restoration,
7
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Inc. v. St. Tammany Park, LLC, 578 F.3d 255, 258 (5th Cir. 2009) (quoting
Minter v. Great Am. Ins. Co. of N.Y., 423 F.3d 460, 465 (5th Cir. 2005)).
Summary judgment is appropriate “when the pleadings and evidence
demonstrate that no genuine issue of material fact exists and the movant is
entitled to judgment as a matter of law.” Id. (internal quotation marks
omitted).
DISCUSSION
Plaintiffs, along with the principal dissent, principally argue that,
because Section 241 was originally enacted with racial animus in 1890, it
cannot survive scrutiny under the Equal Protection Clause. “Because this
case is indistinguishable from Hunter,” they contend, “the eight originally-
listed crimes in Section 241 must be invalidated as unconstitutional.”
Further, they assert that Cotton was erroneously decided because, when
voting on the subsequent reenactments of Section 241, Mississippi voters
were never given the opportunity to vote up or down on each specifically
listed crime in Section 241. And in any event, they assert, ongoing pervasive
racial discrimination in both 1950 and 1968 “render[ed] implausible” the
intentional removal of discriminatory intent from Section 241.
After careful consideration of the record and applicable precedents,
we reconfirm that Section 241 in its current form does not violate the Equal
Protection Clause. Plaintiffs failed to meet their burden of showing that the
current version of Section 241 was motivated by discriminatory intent. In
addition, Mississippi has conclusively shown that any taint associated with
Section 241 has been cured.
I.
All of plaintiffs’ and the principal dissent’s claims derive from Hunter,
in which the Supreme Court held unconstitutional a provision of the 1901
Alabama Constitution that was adopted in part to disenfranchise blacks
8
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convicted of certain misdemeanor offenses. 471 U.S. at 227, 105 S. Ct. at
1919. The Supreme Court affirmed that the Arlington Heights standard
should be applied to laws, like felon disenfranchisement provisions, that are
facially neutral but have racially disproportionate effects. 11 According to this
standard, “[p]roof of racially discriminatory intent or purpose is required to
show a violation of the Equal Protection Clause.” Vill. of Arlington Heights v.
Metro. Hous. Dev. Corp., 429 U.S. 252, 265, 97 S. Ct. 555, 563 (1977). 12
Arlington Heights adopted a two-stage process, which Hunter followed. The
first stage (“Hunter step one”) places the burden on plaintiffs to prove by an
evidentiary preponderance that racial discrimination was a substantial or
motivating factor in enacting the challenged provision. Hunter, 471 U.S. at
227–28, 105 S. Ct. at 1920. If the plaintiffs were to succeed on that point, at
the second stage (“Hunter step two”), the burden shifts to the state to
demonstrate that the provision would have been enacted without an
impermissible purpose. Id. at 228, 105 S. Ct. at 1920 (citing Mt. Healthy City
Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287, 97 S. Ct. 568, 576 (1977)).
11
The parties present different theories regarding whether and at what point in the
analysis Hunter requires evidence of unconstitutional effects as well as motive. Cf. Cotton,
157 F.3d at 392 n.9. The Supreme Court noted that the existence of ongoing
unconstitutional effects had not been challenged by the state of Alabama. Hunter, 471 U.S.
at 227, 105 S. Ct. at 1919–20. We need not reach these questions because plaintiffs fail to
make the threshold showing of discriminatory intent.
12
Pursuant to Arlington Heights, evidence of discriminatory intent may include:
(i) whether “a clear pattern, unexplainable on grounds other than race, emerges from the
effect of the state action,” (ii) consideration of the “historical background of the
decision . . . particularly if it reveals a series of official actions taken for invidious
purposes,” and (iii) “the legislative or administrative history,” which “may be highly
relevant, especially where there are contemporary statements by members of the
decisionmaking body, minutes of its meetings, or reports.” 429 U.S. at 265–68, 97 S. Ct.
at 564–65.
9
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The Hunter Court acknowledged that proving the motivation for
official actions may be a “problematic undertaking.” Id. However, the
plaintiffs had satisfied Hunter’s first step with a wealth of historical evidence
that the “zeal for white supremacy ran rampant at the convention,”
including specifically the drafting of the disenfranchisement provision. Id. at
229, 105 S. Ct. at 1921. Moreover, the Court concluded, the
disenfranchisement provision “certainly would not have been adopted by the
convention or ratified by the electorate in the absence of the racially
discriminatory motivation.” Id. at 231, 105 S. Ct. at 1922.
The Court also rejected the state’s position that the provision had
been shorn of its original unconstitutional motive by events in the ensuing
eighty years, specifically the judicial pruning of criminal miscegenation and a
few others considered blatantly racist. Id. at 233, 105 S. Ct. at 1922. But the
Court added a provocative qualification to this point:
Without deciding whether § 182 would be valid if enacted today
without any impermissible motivation, we simply observe that its
original enactment was motivated by a desire to discriminate
against blacks on account of race and the section continues to
this day to have that effect.
Id. (emphasis added). The Hunter Court thus left open the question whether
later reenactments would have rendered the provision valid. See also Abbott
v. Perez, 138 S. Ct. 2305, 2325 (2018).
Three circuit courts, including this one, have answered the Court’s
hypothetical in the affirmative. Cotton, 157 F.3d 388; Johnson v. Governor of
Fla., 405 F.3d 1214 (11th Cir. 2005) (en banc); Hayden v. Paterson, 594 F.3d
150 (2d Cir. 2010). Their considered exposition of Hunter presents a further
basis for our conclusions.
In Cotton, this court confronted whether the 1950 and 1968
reenactments of Section 241 sufficiently demonstrated that Section 241 in its
10
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current form was enacted for race-neutral reasons. Cotton, 157 F.3d at 391–
92. As this court noted, “Hunter . . . left open the possibility that by
amendment, a facially neutral provision like § 241 might overcome its odious
origin.” Id. at 391. It then concluded “[t]hat is what has happened here.”
Id. Emphasizing the “deliberative process” that resulted in the
amendments, the court determined that “each amendment superseded the
previous provision.” Id. It also noted that the plaintiff had not offered any
proof of discriminatory intent regarding the current version of Section 241,
but rather he relied “exclusively on the Mississippi Supreme Court’s now-
irrelevant admission in Ratliff” that the 1890 convention enacted Section 241
with impermissible motives. Id. at 392. The panel ultimately held that,
“[b]ecause the motives of Mississippi’s legislature and voters when § 241
was re-enacted are not impugned, . . . Hunter does not condemn § 241.” Id.
The two other circuit courts called on to address Hunter’s
unanswered hypothetical have adopted the Cotton approach. In Johnson, the
Eleventh Circuit’s en banc court considered, inter alia, an 1868 voter
disenfranchisement provision in the Florida Constitution that was revised as
part of a new constitution in 1968. 405 F.3d at 1218–19. The 1868 provision
included some enumerated misdemeanors, but the 1968 version only
included felonies. Id. at 1221. Applying Hunter, the court assumed without
deciding that there was discriminatory intent behind the 1868 version of the
law, but concluded that any racist taint had been eliminated by the
subsequent reenactment in 1968. Id. at 1223–24. The court emphasized that
the Hunter Court “did not hold that intervening legislative changes to the
policy would have been legally insufficient to remove an earlier
discriminatory intent.” Id. at 1223 n.20. It considered determinative the
multistep constitutional revision process, which included approval by the
voters as the last step. Id. at 1224. The court concluded that “[t]he state has
met its burden as a matter of law by substantively reenacting the law for race-
11
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neutral reasons.” Id. The Johnson court cited and relied on Cotton
throughout its opinion. Id. (“Thus, as in Cotton v. Fordice, Florida’s 1968 re-
enactment eliminated any taint from the allegedly discriminatory 1868
provision . . . .”).
The Second Circuit employed similar reasoning to analyze a series of
felon disenfranchisement provisions contained in three versions of the New
York Constitution, all dated in the nineteenth century. Hayden, 594 F.3d at
155–56. 13 New York’s constitutional provisions authorized the legislature to
enact disenfranchisement laws for those convicted of “any infamous crime.”
Id. An earlier constitutional provision required the passage of such laws, but
the provision was later revised and reenacted to be permissive. The most
recent amendment, approved in 1894 and still in force, made the
disenfranchisement laws mandatory again. Id. at 156.
The plaintiffs did not allege racist motivation behind the 1894
amendment. Id. at 159. Because of this, the court concluded that they failed
to establish discriminatory intent, and moreover, any discriminatory taint of
the earlier iterations had been cured. Id. at 165–67. The Second Circuit
agreed with Johnson and Cotton, concluding that Hunter allowed the court
independently to consider the intent of the 1894 amendment. Id. at 166–67.
The Second Circuit addressed but rejected any concern that the changes
made to the provision following the tainted enactments were essentially
pretextual. Id. at 167. The court made clear that (i) no bad faith had been
alleged on behalf of the 1894 delegates; (ii) the amendment was substantive
in scope, in addition to being deliberative; and (iii) no allegations were made
as to the discriminatory intent of the 1894 delegates. Id.
13
The plaintiffs separately challenged a state law concerning felon
disenfranchisement, but the court’s discussion of that law is inapposite to the present case.
12
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II.
Despite the uniform approach of these authorities, and others, 14
plaintiffs here still contend that Hunter is dispositive because the original
racist motivation behind eight of the crimes currently listed in Section 241
has not been purged. On its face, this “sins of the father” contention fails.
This case is not analogous to Hunter because the provision has been, not only
reenacted, but reenacted twice according to Mississippi state procedures.
The qualification in Hunter as to subsequent enactments has been
understood in multiple decisions in addition to Cotton to mean that the
14
See also United States v. Johnson, 40 F.3d 436, 440 (D.C. Cir. 1994), cert. denied,
514 U.S. 1041, 115 S. Ct. 1412 (1995) (asserting, in the context of an Equal Protection
challenge to a 1986 federal drug statute, that “the undeniable racism that animated
legislative debate leading to the passage of a 1914 statute criminalizing cocaine trafficking
generally, long before the crack/powder distinction was contemplated,” is “of no relevance
to our inquiry into the motives of the Congress that passed the 1986 Act” (citing McCleskey
v. Kemp, 481 U.S. 279, 298 n.20, 107 S. Ct. 1756, 1770 n. 20 (1987))). The district courts
that have considered this question have also looked to the last enacting legislature’s intent.
See Thompson v. Merrill, 505 F. Supp. 3d 1239, 1255, 1261 (M.D. Ala. 2020) (looking for
evidence of continuing discriminatory intent or discriminatory intent of the last enacting
legislature); United States v. Gallegos-Aparicio, No. 19-CR-2637-GPC, 2020 WL 7318124,
at *4 (S.D. Cal. Dec. 11, 2020) (holding that the defendant’s claim failed because he did
not establish that the reenacting Congress was motivated by discrimination); United States
v. Rios-Montano, No. 19-CR-2123-GPC, 2020 WL 7226441, at *6 (S.D. Cal. Dec. 8, 2020)
(“Although Mr. Rios-Montano argues that the intent of the prior Congress remains legally
operative until a future Congress makes an affirmative contrary showing, other courts that
have considered the issue in the context of felon disenfranchisement provisions have
rejected this approach.”); United States v. Novondo-Ceballos, No. 21-CR-383 RB, 2021 WL
3570229, at *5 (D.N.M. Aug. 12, 2021) (“Even if the Court did not find that Congress
purged the racial animus . . . with its later enactment of the INA, . . . other courts have
rejected the notion that prior congressional intent remains operative until a future Congress
makes an affirmative contrary showing.”); Lynch by Lynch v. Alabama, No. CV 08-S-450-
NE, 2011 WL 13186739, at *334 (N.D. Ala. Nov. 7, 2011), aff’d in part, vacated in part on
other grounds, I.L. v. Alabama, 739 F.3d 1273 (11th Cir. 2014) (holding that the plaintiffs had
not met their burden of showing the amended provisions were reenacted with
discriminatory intent, but that the plaintiffs had met this burden as to the provisions that
were never amended).
13
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decisive legal question is the intent of the legislature that enacted the most
recent version of an originally tainted law. 15
That courts must look to the most recent enactment of the challenged
provision, not the original tainted version, is fortified, if not fully ratified, by
the Supreme Court’s decision in Abbott v. Perez, 138 S. Ct. 2305 (2018).
Abbott reversed a three-judge district court decision that had wrongfully
placed the burden on Texas to show that a 2013 redistricting plan had purged
the discriminatory “taint” of a previous plan (that had never become
effective). Id. at 2324. In reaching that result, the Court held that the intent
of the enacting legislature (2013) was paramount. The Court was emphatic
that “[t]he allocation of the burden of proof and the presumption of
legislative good faith are not changed by a finding of past discrimination.” Id.
“Past discrimination cannot, in the manner of original sin, condemn
governmental action that is not itself unlawful.” Id. (internal quotation
marks and brackets omitted). The Court added, “we have never suggested
that past discrimination flips the evidentiary burden on its head.” Id. at 2325.
To be sure, the Court distinguished Hunter as involving a “very
different situation” and explained that Alabama’s discriminatory provision
had never been changed, only “pruned.” Id. Culminating its explanation,
the Court noted that Hunter “specifically declined to address the question
whether the then-existing version would have been valid if reenacted today.”
Id. (internal quotation marks and brackets omitted). Hunter was expressly
different from Abbott because the Texas legislature, rather than simply
adopting an earlier legislative redistricting plan, had largely modelled a plan
15
See Johnson, 405 F.3d at 1223 (“[W]e are concerned here with the validity of the
1968 provision, not the 1868 provision and the plaintiffs conceded that the 1968 provision
was not enacted with discriminatory intent”); Hayden, 594 F.3d at 162 (plaintiffs’ failure
to allege “this invidious purpose motivated the enactment” of the latest constitutional
provision was “fatal to plaintiffs’ intentional discrimination claim”).
14
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developed by a state court during protracted litigation. Id. What mattered in
Abbott, as the Court stated, was thus the intent behind that 2013 legislative
act.
In sum, notwithstanding the potential impact of past discrimination
on reenacted laws, Abbott stands for three propositions. First, it squarely
placed the burden of proof of intentional discrimination on the law’s
challenger. Second, the most recent enactment is the one that must be
evaluated under the Equal Protection Clause. Third, the presumption of
legislative good faith persists. Hunter stands out because the provision at
issue there had remained virtually intact for eighty years, untouched by the
legislature, from the time of its patently racist enactment. But the Court
noted in Abbott that it had no occasion to address the precise question
reserved by Hunter. Id.
For these reasons, we remain confident, contrary to plaintiffs’
principal assertion, that the critical issue here is not the intent behind
Mississippi’s 1890 Constitution, but whether the reenactment of Section 241
in 1968 was free of intentional racial discrimination.
III.
As an alternative to asserting that Hunter is on all fours with this case,
plaintiffs do not even allege that the 1968 amendment was enacted with
discriminatory intent. They concede that they have provided no evidence
that the amendment passed with invidious motives in 1968 because they do
not believe it necessary. As they put it, “the determinative issue…is not
whether the amendments resulted from discrimination (there is little reason to
think that they did)”(emphasis added). They explain, “[b]ecause [plaintiffs]
do not challenge murder and rape, they have no obligation to prove that the
1950 and 1968 amendments were motivated by discrimination.” But this
contention, standing alone, perpetuates the “sins of the fathers” discounting
15
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of the amendment process, and flips the burden of proof and presumption of
legislative good faith contrary to both Abbott and Hunter.
Instead, plaintiffs and the principal dissent approach Hunter’s first
step by arguing that the reenactments of Section 241 cannot purge the racially
discriminatory taint of the 1890 constitution’s list of disenfranchising crimes.
They rest on two propositions: (i) that the state constitutional amendment
process did not give voters an opportunity to consider eliminating either in
their entirety or individually the bulk of the crimes tainted by racial animus,
instead only asking in 1950 whether to remove burglary and in 1968 whether
to add rape and murder to the original list; and (ii) that the “extensive
hostility of the legislature and much of the white populace to equal rights in
1950 and 1968[] render[] implausible” the assertion that the amendments
were made to remove discriminatory taint. The first argument has no
support in applicable law, and the second perverts the burden of proof,
contrary to Hunter and Abbott.
Plaintiffs first assert that the more complete historical evidence they
offer corrects Cotton’s erroneous conclusion that in the successive
amendments of Section 241, a “majority of voters had to approve the entire
provision.” 157 F.3d at 391. Plaintiffs also deride Cotton’s reliance on the
state’s “deliberative process” for constitutional amendments. Id. As
plaintiffs and the principal dissent would have it, the original discriminatory
motivation for the crimes listed in 1890 persists unless the voters were asked
to approve or reject every crime tainted in the original version of Section 241.
This principle, if adopted, would extend far beyond Hunter’s query
about legislative reenactments and would in effect federalize special
requirements for purging long-ago discrimination from revised or reenacted
state laws. Under Arlington Heights, the indicia to evaluate lawmakers’
discriminatory purpose are found in circumstantial evidence such as
16
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legislative history, legislators’ public comments, a “clear pattern” of
otherwise inexplicable racial impacts, and a “series” of invidious actions. 16
Hunter, applying the Arlington Heights methodology, says nothing about what
it takes for a state legislature to revise its laws and obviate Equal Protection
challenges based on decades-old versions. 17 Plaintiffs’ proposal that a state
constitutional amendment must be voted on word for word to avoid any
vestigial racial taint is radically prescriptive. It would require the revision of
state amendment processes, supplanting those provisions with some kind of
constitutional plebiscite. Cotton, like other courts, interpreted Hunter to
authorize federal courts only to discern legislative intent 18 according to
Arlington Heights’s methodology. No subsequent case law supports
plaintiffs’ novel, judicially crafted political theory of public consent. 19
16
See Arlington Heights criteria, supra n.12.
17
Hunter rejected the sufficiency of judicial “pruning,” of course, but that is
distinct from prescribing an approved reenactment procedure for states to effectively purge
original discriminatory taint.
18
The term “legislative intent” is used here as shorthand for the process by which
a statute or constitutional amendment is enacted. Arlington Heights canvassed indicia of
“legislative intent” because an ordinance was at issue there, while in Hunter the Court had
to determine the intent behind a state constitutional amendment. In the instant case,
Mississippi’s amendment process is not complete until the voters have ratified the
legislature’s proposed amendment. Plaintiffs here have disclaimed discriminatory intent
by the legislature or voters in the 1968 amendment process.
19
Plaintiffs and the principal dissent erroneously contend that Abbott expanded
Hunter. They repeatedly reference this quotation: “[T]he [judicial] amendments [in
Hunter] did not alter the intent with which the article, including the parts that remained, had
been adopted.” Abbott, 138 S. Ct. at 2325 (emphasis added). Plaintiffs claim that any part
of the original provision that remains and was not individually voted on in the later
amendments must fail under Abbott’s interpretation of Hunter. They read too much into
this merely descriptive statement about what happened in Hunter. The Court would hardly
adopt a major analytical change while distinguishing Hunter’s facts. And indeed, in the
next sentence, Abbott reaffirms Hunter’s qualification, stating, “[b]ut the Court [in Hunter]
17
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Not only is plaintiffs’ and the principal dissent’s overarching theory
deficient, but it also mischaracterizes the regularity and legal effect of the
state’s subsequent amendments of Section 241. That the state conformed to
its procedural requirements is fully explained earlier in this opinion and need
not be restated. There is no dispute that the amendments were enacted in
compliance with state law. As further shown above, the voters had to
approve the full text of Section 241 as amended, not merely bare propositions
regarding whether to delete burglary or add murder and rape. Also in 1968,
the amendment significantly altered residency requirements and the poll tax,
both of which had been originally infected by racial animus. The 1968
amendment process bears no hint of subterfuge to covertly maintain racial
discrimination. 20 Contrary to plaintiffs’ and the principal dissent’s word-by-
word approach, the process used in 1968 was sufficient to reenact Section 241
in its entirety. Finally, under Mississippi law, constitutional amendments
“overrule[] the prior interpretation[s], which become[] for all practical
purposes relegated to history” and “cease[] to exist.” State ex rel. Moore v.
Molpus, 578 So. 2d 624, 639 (Miss. 1991). Section 241 as it existed in 1890
“ceased to exist,” rendering the discriminatory intent behind its original
enactment irrelevant here and purging the original taint by reenactments of
the whole provision. 21
specifically declined to address the question whether the then-existing version would have
been valid if reenacted today.” Id. (internal quotation marks and brackets omitted).
20
Cf. Hayden, 594 F.3d at 167 (expressing concern about subterfuge).
21
At oral argument, plaintiffs’ counsel asserted that Section 241 was void ab initio
because it was invalid as enacted in 1890. See Med. Ctr. Pharmacy v. Mukasey, 536 F.3d 383,
401 (5th Cir. 2008). They ask the court to conclude both that “it is as though [the
legislature] had not acted at all” and also that the discriminatory taint from this legislative
“nonaction” persists today. See id. But that is a non sequitur. No matter what happened
in 1890, all plaintiffs establish is that Section 241 was de novo reenacted in 1968. And they
have no evidence of discriminatory motive in connection with that process.
18
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Plaintiffs’ second argument about the amendment process is that
Cotton failed to examine the “historical context” in which the 1950 and 1968
amendments were passed, that is, the state’s ongoing racism throughout that
period. We are not blind to the state’s deplorable history of racial
discrimination, or its delayed response to the end of de jure segregation, or
its attempts to suppress black voter participation during that period. But the
overall social and political climate in Mississippi in the 1950s and 1960s fails
to carry plaintiffs’ burden to prove that the 1968 amendment intentionally
discriminated against black voters.
Similarly, half of the principal dissenting opinion recounts racism in
Mississippi during this period, but none of this history appears in the record
before the district court or this court. None of this history refers to or bears
on the 1968 amendments to all of Section 241. Equally important, the
dissent’s attempt to create a fact issue is at odds with plaintiffs’ concession
that “there is little reason to think” racial discrimination motivated the
amendments.
Not only does the legislative history of the 1968 amendment lack
evidence of discriminatory intent in regard to the list of disenfranchising
crimes, but if anything, it tends to support the opposite proposition. The
legislature was trying to eliminate several objections contained in the then-
recent findings of the Civil Rights Commission. Thus, the amendment of
Section 241 included adding supposedly “non-black” crimes to the
disenfranchising list, modifying voter residency requirements, and deleting
the poll tax. All such changes had been sought by the Commission and
indicate an intent to, at a minimum, avoid a challenge to the law, or to win in
court if there were such a challenge. 22
22
Further, as this court has noted, the fact that an amendment seeks to alleviate
constitutional concerns does not alone constitute evidence of unconstitutional motivation.
See Wal-Mart Stores, Inc. v. Tex. Alcoholic Bev. Comm’n., 945 F.3d 206, 216 (5th Cir. 2019)
19
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Accordingly, as a matter of law, plaintiffs have not demonstrated that
Section 241 as it currently stands was motivated by discriminatory intent or
that any other approach to demonstrating the provision’s unconstitutionality
is viable.
IV.
Because of plaintiffs’ failure to show discriminatory intent, the burden
never shifted to the Secretary under Hunter’s second step. Pursuant to the
second step, courts seek to determine whether the current provision would
still have been enacted without discriminatory intent. 471 U.S. at 228,
105 S. Ct. at 1920 (citing Mt. Healthy, 429 U.S. at 287, 97 S. Ct. at 576). As
discussed, the two later constitutional amendments had the effect of
reenacting Section 241 in its entirety. 23 But even if there remained a question
of discriminatory intent arising from the 1968 amendment, plaintiffs’ claims
would still fail because Mississippi produced additional evidence that
eliminated any taint from Section 241. 24
The 1984–86 discussions involving the public, those in the Task
Force, and the Mississippi legislative committees illustrate that Section 241
in its current form reflects purposeful and race-neutral contemplation. To
be sure, legislative inaction is generally unreliable when used to interpret
(that the drafter “sought to create a law that would survive a constitutional challenge is not
evidence of a discriminatory legislative purpose”).
23
Judge Graves has disavowed in the dissent what he wrote a few years ago: “The
passage of time and the actions of intervening parties cut that thread of intent in Cotton:
two legislatures, acting eighteen years apart (with the first acting sixty years after the
offending constitutional provision was enacted) approved the amendments by two-thirds
majorities, and then the entire sections—not just the amendments—were subject to
statewide votes in favor of full reenactment.” Veasey v. Abbott, 888 F.3d 792, 822 (5th Cir.
2018) (Graves, J., concurring in part and dissenting in part).
24
The dissent fails to acknowledge the impact of subsequent public deliberations
concerning felon disenfranchisement.
20
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statutes or regulations. See Rapanos v. United States, 547 U.S. 715, 749,
126 S. Ct. 2208, 2231 (2006). But here, the court is not tasked with
interpreting Section 241. Rather, the inquiry is one of motivation: whether
Section 241 would have been enacted in its current form absent racial
discrimination. Hunter, 471 U.S. at 228, 105 S. Ct. at 1920. Later events—
even if they ultimately result in legislative inaction—are not irrelevant to
demonstrating intent. In this case, subsequent legislative attention to
Mississippi’s election laws indicates that Section 241 was carefully evaluated
before the legislature opted to leave it unchanged.
The Task Force recommendations and legislative process bespeak the
nondiscriminatory motivations of the public and the legislature. The Task
Force considered all aspects of voting in Mississippi, including the impact of
any proposed revisions on minority communities. It met with the U.S.
Department of Justice to discuss the conformity of its proposals with the
Voting Rights Act. In this meeting, there was “much discussion concerning
the broadening of disenfranchising crimes to include all felonies, and it was
decided that additional review was necessary.” The Task Force ultimately
resolved to recommend leaving Section 241 “as is.”
Later, a legislative joint committee considered the Task Force’s
recommendations and conducted another independent investigation. 25 The
committee recommended expanding the list of disenfranchising felonies to
25
In the report, the committee took issue with the fact that “some twenty-nine (29)
statutes that are presently on the books, and presumably being followed, have never been
submitted to the U.S. Justice Department as required by the Voting Rights Act of 1965.”
It then noted that “[t]he committee decided to proceed by taking the present set of laws
and attempting to clarify them; to conform the statutes with judicial decisions and
regulations; to repeal sections which have never been submitted or have been disapproved
by the U.S. Justice Department . . . .” Notably, for instance, the committee recommended
repealing the anti-single shot provision, partially because “courts . . . have declared them
in violation of the 14th Amendment . . . and of Section 2 of the Voting Rights Act.”
21
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include all felonies 26 (other than manslaughter and tax-related felonies).
Ultimately, the legislature opted to maintain the shorter list of
disenfranchising crimes rather than expand it. In addition, the legislature
amended existing state statutes, incorporating Section 241 by reference in
two code provisions. These changes were precleared by the U.S.
Department of Justice.
In total, the 1968 legislature, the 1968 general electorate of the state of
Mississippi, the Task Force, and to some extent, the U.S. Department of
Justice all considered Section 241 and approved it in its current form. It is
hard to imagine a stronger showing that Section 241 would have been passed
in its current form without racial motivation. See Hunter, 471 U.S. at 227–
28, 105 S. Ct. at 1920.
CONCLUSION
We reaffirm that the current version of Section 241 superseded the
previous provisions and removed the discriminatory taint associated with the
provision adopted in 1890. Cotton, 157 F.3d at 391–92. Plaintiffs fail to
establish the 1968 reenactment of Section 241 was motivated by racism. The
judgment of the district court is AFFIRMED.
26
This would naturally have included the felonies listed in the current version of
Section 241.
22
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James C. Ho, Circuit Judge, concurring in part and concurring in the
judgment:
Nothing in the Constitution forbids states from disqualifying felons
from voting. To the contrary, Section 2 of the Fourteenth Amendment
expressly contemplates that states may disenfranchise felons. It specifically
provides that a state shall be apportioned fewer members of the House of
Representatives if it denies the franchise to any citizens over the age of
twenty-one for any reason “except for participation in rebellion, or other
crime.” U.S. Const. amend. XIV, § 2 (emphasis added).
So “the exclusion of felons from the vote has an affirmative sanction
in § 2 of the Fourteenth Amendment.” Richardson v. Ramirez, 418 U.S. 24,
54 (1974). This conclusion derives not only from the text of Section 2, but
also “the understanding of those who framed and ratified the Fourteenth
Amendment.” Id. at 48. After all, “at the time of the adoption of the
Amendment, 29 States had provisions in their constitution which prohibited,
or authorized the legislature to prohibit, exercise of the franchise by persons
convicted of felonies.” Id.
At the same time, States may not pick and choose which felons to
disenfranchise in a manner that contravenes other provisions of the
Constitution. For example, States could not disenfranchise felons based on
their political party or religious beliefs. That would presumably violate the
First and Fourteenth Amendments. See Hand v. Scott, 888 F.3d 1206, 1211–
12 (11th Cir. 2018). Likewise, States could not disenfranchise felons based
on their race. That would violate the Equal Protection Clause of Section 1 of
the Fourteenth Amendment. See Hunter v. Underwood, 471 U.S. 222 (1985).
As the court today rightly observes, the history of felon
disenfranchisement in the State of Mississippi is indisputably tainted by
racism. But as the court also correctly concludes, the Mississippi law in effect
23
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today does not violate the Equal Protection Clause. It certainly does not
classify felons based on race. Moreover, as the court amply demonstrates,
there is every indication that Mississippi would re-enact precisely the same
law today for reasons wholly unmotivated by race. See ante, at 20–22. So
under governing Supreme Court precedent, Mississippi law cannot be held
unconstitutional on grounds of discriminatory intent.
I write separately to offer a separate and distinct reason why the court
is right to uphold Mississippi law—namely, the absence of any discriminatory
effect as well as intent. After all, Mississippi law does not disproportionately
disenfranchise African-American voters at a higher rate than would a blanket
felon disenfranchisement law. And Plaintiffs do not contend otherwise.
For these reasons, I agree with the court that Mississippi law is
“affirmative[ly] sanction[ed]” by Section 2, Richardson, 418 U.S. at 54, and
that accordingly we must affirm.
I.
The 1890 Mississippi Constitution contained a felon
disenfranchisement provision. Miss. Const. art. 12, § 241. As originally
enacted, Section 241 did not categorically disenfranchise all felons, but
instead targeted certain felonies for disenfranchisement—namely, bribery,
burglary, theft, arson, obtaining money or goods under false pretenses,
perjury, forgery, embezzlement, and bigamy. Id. In 1950, Section 241 was
amended to remove burglary from the list. In 1968, murder and rape were
added.
On its face, Section 241 does not disenfranchise any person based on
race. But the Supreme Court has made clear that a facially neutral felon
disenfranchisement law violates the Equal Protection Clause if (1) the law is
motivated by a desire to discriminate on the basis of race, and (2) it continues
to have that effect to this day. See, e.g., Hunter, 471 U.S. at 233 (holding
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No. 19-60632
Alabama felon disenfranchisement law unconstitutional because it “was
motivated by a desire to discriminate against blacks on account of race and
the section continues to this day to have that effect”).
So Plaintiffs must establish both discriminatory intent and effect. As
Hunter explains, and other courts have repeatedly reaffirmed, “[a] successful
equal protection claim under the Fourteenth Amendment requires proof of
both an intent to discriminate and actual discriminatory effect.” Greater
Birmingham Ministries v. Secretary of State, 992 F.3d 1299, 1321 (11th Cir.
2021) (collecting cases). See also, e.g., Hand, 888 F.3d at 1209 (“in Hunter, .
. . a state’s method for reenfranchising a convicted felon would violate equal
protection if the scheme had both the purpose and effect of invidious
discrimination”); Hayden v. Cty. of Nassau, 180 F.3d 42, 48 (2nd Cir. 1999)
(“[A] facially neutral statute violates equal protection if it was motivated by
discriminatory animus and its application results in a discriminatory
effect.”). I have found no governing precedent holding a law
unconstitutional based on discriminatory intent alone, in the absence of
discriminatory effect. And Plaintiffs do not cite any. 1
As a historical matter, it is undisputed that the original drafters of
Section 241 cherry-picked felonies in 1890 with the deliberate, explicit, and
noxious purpose of suppressing the African-American vote. See, e.g., Cotton
v. Fordice, 157 F.3d 388, 391 (5th Cir. 1998) (“The state defendants do not
dispute that § 241 was enacted in an era when southern states discriminated
1
The dissent contends that I have misconstrued Hunter, and that under a proper
reading of that decision, “Plaintiffs do not need to establish discriminatory impact” to state
a viable constitutional claim under Hunter. Post, at _ n.5. But that is contradicted by the
various post-Hunter precedents that I discuss above. The dissent does not confront any of
these authorities. Nor does it offer any authority that interprets Hunter as it suggests.
25
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against blacks by disenfranchising convicts for crimes that, it was thought,
were committed primarily by blacks.”). 2
But the parties disagree as to whether the amendments enacted in
1950 and 1968 served to cleanse Section 241 of its original racist intent. Our
court today presents the strongest available arguments and authorities for
upholding Section 241 in light of those amendments. I am particularly
persuaded by the ample evidence marshaled by the court that Mississippi
would enact the same law today for reasons wholly unrelated to race. See
ante, at 20–21 (“[E]ven if there remained a question of discriminatory intent
arising from the 1968 amendment, plaintiffs’ claims would still fail because
Mississippi produced additional evidence” that “Section 241 would have
been enacted in its current form absent racial discrimination”).
I write separately to address the issue expressly reserved by our court
today—whether Section 241 presents “ongoing unconstitutional effects” of
racial discrimination. See ante, at 9 n.11. I conclude that, even if one were to
assume the continued taint of discriminatory intent, Plaintiffs cannot show
that Section 241 is racially discriminatory in effect, as both Supreme Court
and circuit precedent require. Cf. Tex. Democratic Party v Abbott, 961 F.3d
389, 416 (5th Cir. 2020) (Ho, J., concurring) (writing separately to explain
why preliminary injunction against Texas election law is flawed “even if one
were to assume that Texas law violates the Twenty-Sixth Amendment”).
2
The original 1890 Mississippi Constitution also required racially segregated
schools, Miss. Const. art. 8, § 207, and prohibited interracial marriage, Miss.
Const. art. 14, § 263. Those provisions were not repealed until 1978 and 1987,
respectively, notwithstanding Brown v. Board of Education, 347 U.S. 483 (1954), and Loving
v. Virginia, 388 U.S. 1 (1967).
26
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II.
Plaintiffs cannot satisfy the discriminatory effect element for one
simple reason: Section 241 does not disproportionately disenfranchise a
greater percentage of African-Americans today than would a blanket felon
disenfranchisement law. Indeed, Plaintiffs acknowledged as much during
oral argument. And that admission is fatal to Plaintiffs’ case.
Blanket felon disenfranchisement laws are indisputably constitutional
under Section 2. See, e.g., Richardson, 418 U.S. at 54; see also id. at 72
(Marshall, J., dissenting) (“The Court construes § 2 of the Fourteenth
Amendment as an express authorization for the States to disenfranchise
former felons.”); Laurence H. Tribe, American
Constitutional Law 1094 (2nd ed. 1988) (same).
So if a blanket felon disenfranchisement law is permissible, then it’s
hard to see how a narrower, more selective law would be unconstitutional.
After all, it’s undisputed that the racial composition of the disenfranchised
population is substantially the same either way. In the absence of any racial
disparity between the two approaches, logic would dictate that the greater
power should include the lesser power.
Moreover, the reasoning behind Plaintiffs’ contrary approach is
difficult to understand. Under Plaintiffs’ theory, Section 241 would avoid
constitutional infirmity if the State expanded it to cover all felonies. It is a
peculiar theory of equal protection that teaches States to avoid liability for
discriminating against people of a particular race by disenfranchising more
individuals of that race.
III.
Plaintiffs respond by invoking Hunter. But nothing in that decision
supports their logic.
27
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To begin with, Hunter acknowledges the “implicit authorization of
§ 2 to deny the vote to citizens ‘for participation in rebellion, or other
crime,’” as the Court recognized in Richardson. Hunter, 471 U.S. at 233
(citing Richardson). This is unsurprising, considering that both Hunter and
Richardson were authored by then-Justice Rehnquist. More importantly, it
means that blanket felon disenfranchisement laws are constitutional—and
that we cannot construe Hunter to suggest otherwise.
In addition, it was conceded in Hunter that Alabama law
disproportionately suppressed the African-American vote by cherry-picking
offenses to exclude a greater percentage of African-Americans than would a
blanket felon disenfranchisement law. And that concession was critical to
proving both the discriminatory intent and disproportionate effect required
to establish an equal protection violation.
To begin with, the Court found discriminatory intent because “the
crimes selected for inclusion . . . were believed by the delegates to be more
frequently committed by blacks” than other crimes. Id. at 227 (emphasis
added). The drafters of the Alabama disenfranchisement law specifically
“selected such crimes . . . that were thought to be more commonly committed
by blacks.” Id. at 232 (emphasis added).
Second, Alabama conceded that this cherry-picking worked—that it
caused a discriminatory effect on African-American voters. As the Court
noted, the racially discriminatory “impact . . . of the provision has not been
contested.” Id. at 227 (emphasis added). Moreover, the Court referred
explicitly to the findings of the Court of Appeals. Id. That is notable because,
according to the Court of Appeals, the State of Alabama never even bothered
to suggest that its disenfranchisement law excluded African-Americans in
“similarly disproportionate numbers” as the general felon population and
28
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therefore presented no discriminatory effect. Underwood v. Hunter, 730 F.2d
614, 620 n.11 (11th Cir. 1984) (emphasis added).
So the plaintiffs in Hunter demonstrated both discriminatory intent
and effect. This case, by contrast, presents neither element. Mississippi
vigorously maintains that its disenfranchisement law results in no racial
disparity compared to the general felon population. And Plaintiffs do not
contend otherwise.
For their part, Plaintiffs theorize that we should compare the racial
effects of Section 241, not to the general felon population, but to the entire
population of Mississippi. But that is not the proper comparator for
determining whether Section 241 indeed has a discriminatory effect.
When a party challenges the racial composition of a jury as
discriminatory in violation of the Sixth Amendment, the relevant baseline is
not the general population, but the population of eligible jurors. See, e.g.,
Berghuis v. Smith, 559 U.S. 314, 323 (2010) (“‘Absolute disparity’ is
determined by subtracting the percentage of African–Americans in the jury
pool . . . from the percentage of African–Americans in the local, jury-eligible
population.”). When a party contests the use of peremptory strikes as
racially biased in violation of the Equal Protection Clause, the relevant
baseline is not the general population, but the jury pool. See, e.g., Seals v.
Vannoy, 1 F.4th 362, 366 (5th Cir. 2021) (examining “the number of strikes
in comparison to the number of people in the jury pool who were black”).
When a party objects to the racial composition of a particular workforce as
the product of racism in contravention of Title VII of the 1964 Civil Rights
Act, the relevant baseline is not the general population, but the universe of
workers who are actually qualified to do the job in that particular labor
market. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 501–02
(1989) (“[T]he relevant statistical pool for purposes of demonstrating
29
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discriminatory exclusion must be the number of minorities qualified to
undertake the particular task.”).
And so too here. The relevant baseline in this case is not the general
population, but the population of felons subject to disenfranchisement under
Section 2 of the Fourteenth Amendment. And Plaintiffs fail to present any
such racial disparity as compared to the general felon population in
Mississippi. 3
Finally, Plaintiffs suggested during oral argument that it should not
matter that Section 241 causes the same racial disparities as a blanket felon
disenfranchisement law would. They theorize in essence that, because racial
disparities exist across the entire criminal justice system in Mississippi,
Section 241 should go down with the ship.
It should go without saying that, if there is racial discrimination
anywhere in the criminal justice system in Mississippi—whether within
police departments, among prosecutors, or in the courtroom—we must
eliminate it, root and branch. “Nothing is more corrosive to public
confidence in our criminal justice system than the perception that there are
two different legal standards.” Gomez v. Galman, 18 F.4th 769, 783 (5th Cir.
2021) (Ho, J., concurring) (quotations omitted) (collecting cases alleging
racism by police officers).
3
The dissent claims that, at a minimum, “there is a factual dispute about
discriminatory impact” that necessitates remand. Post, at _ n.5. But I don’t see a material
fact dispute here. No one denies that there’s a meaningful disparity between the
disenfranchised population and the entire population of Mississippi. But no one claims that
there’s a meaningful disparity between the disenfranchised population and the felon
population of Mississippi. Where we part company is deciding which comparison is
determinative: Do we compare the disenfranchised population to the general felon
population—or to the citizenry at large? As explained, I say it’s the former. The dissent
says it’s the latter. Whoever is right, it’s surely a legal dispute and not a factual one.
30
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But if there is indeed such discrimination at work here, it is entirely
exogenous to Section 241. Imagine the following hypothetical: An employer
holds a job fair on a particular date. A racist group of police officers,
unbeknownst to the employer, blocks the roads and highways so that a
particular racial group cannot attend the job fair. The police officers are
plainly guilty of racial discrimination. But the employer is not—even though
there is now racial disparity at the job fair.
***
Plaintiffs no doubt present sincere concerns that Section 241 not only
comes to us with a troubling provenance—it also operates today to
disproportionately disenfranchise African-Americans.
But disparity alone does not prove discrimination. See, e.g., Milliken
v. Bradley, 433 U.S. 267, 280 n.14 (1977) (“[T]he Court has consistently held
that the Constitution is not violated by racial imbalance . . . without more.”).
And in this case, there is not even a relevant disparity. Section 241 does not
disenfranchise African-American voters at a greater rate than other felon
disenfranchisement laws. So if there is racism in Mississippi’s criminal
justice system, it is upstream from Section 241. And holding Section 241
unconstitutional based on flawed metrics would not cure it.
What’s more, applying the wrong numerical analysis is not just a
matter of statistical imprecision. It also confounds our country’s
fundamental commitments.
The Constitution promises equality of treatment, not equality of
outcome. It does not ask whether we have too many people of a particular
race, whether in a prison, at a workplace, or on a college campus. Rather, it
asks only whether the law governs every citizen in the same manner,
regardless of their race. The Equal Protection Clause enshrines color-
blindness, not critical race theory. See, e.g., Rollerson v. Brazos River Harbor
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Navigation Dist., 6 F.4th 633, 647–50 (5th Cir. 2021) (Ho, J., concurring in
part and concurring in the judgment); Veasey v. Abbott, 13 F.4th 362, 371–79
(5th Cir. 2021) (Ho, J., concurring).
I agree that we should affirm.
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Jennifer Walker Elrod, Circuit Judge, dissenting:
As the majority acknowledges and the dissenters explain, it is
undisputed that the enactment of § 241 was “steeped in racism.” Ante at 2.
Only six years after its enactment, the Supreme Court of Mississippi
explained the motive and selection criteria for § 241’s nine disenfranchising
crimes. “Restrained by the federal constitution from discriminating against
the negro race, the convention discriminated against its characteristics and
the offenses to which its weaker members were prone.” Ratliff v. Beale, 20
So. 865, 868 (Miss. 1896). While recognizing its invidious origins, the
majority concludes that subsequent amendments to § 241 have cured the
racial animus and legitimated—for equal protection purposes—the
remaining crimes originally listed in the Mississippi Constitution of 1890.
I am not so sure. If Mississippi had subsequently reenacted § 241 in
the absence of discriminatory intent, § 241 would pose no equal protection
problem. But as Judge Graves’s dissenting opinion points out, the
Mississippi electorate has never been asked to either remove or approve of
eight of the nine original crimes. When burglary was removed in 1950, and
when rape and murder were added in 1968, Mississippians were given only
an “up or down” option to approve § 241 as amended—not to approve § 241
as it then existed. Post at 45–48 (Graves, J., dissenting). Because
Mississippians were never given the option to remove the racially tainted list,
as I understand Hunter v. Underwood—which binds us—I am not satisfied
that the relevant parts of § 241 have been ‘reenacted.’ See 471 U.S. 222, 233
(1985). Having failed to reenact it, the State is stuck with its discriminatory
intent.
Under Hunter, the burden then shifts to the State to show that § 241
would have been enacted in the absence of the illicit intent. 471 U.S. at 228.
Even assuming that (1) the relevant time period for this inquiry is not 1890,
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and (2) the State does not conclusively fail to carry its burden as of 1890, I
agree with Judge Graves’s dissenting opinion that—at the very least—there
are fact issues on this question that preclude summary judgment.
That being said, separate and apart from questions of intent, I agree
with Judge Ho’s concurring opinion that the plaintiffs must further show that
§ 241 continues to have a discriminatory effect. Ante at 25 (Ho, J., concurring
in part and concurring in the judgment) (citing, e.g., Greater Birmingham
Ministries v. Sec’y of State for Ala., 992 F.3d 1299, 1321 (11th Cir. 2021) (“A
successful equal protection claim under the Fourteenth Amendment requires
proof of both an intent to discriminate and actual discriminatory effect.”));
Hunter, 471 U.S. at 233 (“[The] original enactment [of § 182] was motivated
by a desire to discriminate against blacks on account of race and the section
continues to this day to have that effect.”). Because the district court may
address intent and effect in either order, the absence of an ongoing
discriminatory effect may alone be dispositive in this case. But as Judge
Graves’s dissenting opinion notes, the district court did not analyze the
parties’ conflicting arguments or evidence about discriminatory effect. Post
at 44 n.5 (Graves, J., dissenting). For this reason, I would remand for the
district court to address whether plaintiffs have demonstrated § 241’s
discriminatory effect in the first instance. Montano v. Texas, 867 F.3d 540,
546 (5th Cir. 2017) (“[W]e are a court of review, not first view.” (quotation
omitted)).
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Haynes, Circuit Judge, dissenting:
I agree with the conclusion reached in Judge Graves’s dissenting
opinion as to what the decision in this case should be. In my view, the bottom
line as to the relevant issues is that § 241 was enacted with discriminatory
intent (which no one disputes), that it continues to have discriminatory
impact, and that the provision was not “reenacted” via amendment in 1950
or 1968. At no point did the Mississippi electorate have the option of striking
the entirety of § 241’s disenfranchisement provision. This court’s decision
in Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998), was wrong to conclude that
§ 241’s subsequent amendments were enacted through a “deliberative
process” capable of cleansing the discriminatory taint of 1890. See id. at 392.
Because I disagree with the majority opinion’s judgment to the contrary, I
respectfully dissent.
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James E. Graves, Jr., Circuit Judge, joined by Stewart, Dennis,
Higginson, and Costa, Circuit Judges, dissenting:
“There is no use to equivocate or lie about the matter . . . Mississippi’s
constitutional convention of 1890 was held for no other purpose than to eliminate
the nigger from politics . . . . In Mississippi we have in our constitution legislated
against the racial peculiarities of the Negro . . . . When that device fails, we will
resort to something else.” 1
This is the intent behind the law the en banc court upholds today. In
1890, Mississippi held a constitutional convention with the express aim of
enshrining white supremacy. The 1890 Convention was a backlash against
Reconstruction-era efforts to remedy centuries of chattel slavery and
violence against Black people. The Convention was successful. The new
constitution erased racial progress in Mississippi primarily through
disenfranchising Black voters, formally beginning the Jim Crow era of the
American South. Today the en banc majority upholds a provision enacted in
1890 that was expressly aimed at preventing Black Mississippians from
voting. And it does so by concluding that a virtually all-white electorate and
legislature, otherwise engaged in massive and violent resistance to the Civil
Rights Movement, “cleansed” that provision in 1968. Handed an
opportunity to right a 130-year-old wrong, the majority instead upholds it. I
respectfully dissent.
1
Statement in 1890 of James K. Vardaman. Statements like these would win
Vardaman a seat as Mississippi’ state representative, 1890-96; Speaker of Mississippi’s
House of Representatives, 1894-96; Mississippi’s Governor, 1904-08; and Mississippi’s
U.S. Senator, 1913-19. Neil R. McMillen, Dark Journey: Black
Mississippians in the Age of Jim Crow 43 (1990).
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I.
A.
The Reconstruction Act of 1867 allowed Black Mississippians to vote
for the first time in the State’s history. United States Commission
on Civil Rights, Voting in Mississippi 1 (1965). In 1867 Blacks
made up a majority of the state’s population. Their voter participation
skyrocketed, producing several Black elected officials, including a Black
United States Senator. Id. at 2. Mississippi is currently home to the highest
percentage of Black Americans of any state in the Union. And yet,
Mississippi has not elected a Black person to statewide office since,
unsurprisingly, 1890.
No one disputes that the chief aim of Mississippi’s 1890 Convention
was white supremacy. Nor could anyone do so in good faith, as the delegates
themselves readily declared their intentions: “Our chief duty when we meet
in Convention is to devise such measures . . . as will enable us to maintain a
home government, under the control of the white people of the State.”
McMillen, supra, at 41. “The plan,” said U.S. Senator James Zacariah
George, “is to invest permanently the powers of government in the hands of
the people who ought to have them—the white people.” Id. The
Convention’s President similarly avowed its blatantly racist purpose: “Let’s
tell the truth if it bursts the bottom of the Universe. We came here to exclude
the Negro. Nothing short of this will answer.” Id. (statement of Solomon
Saladin “S.S.” Calhoun) (cleaned up)). Of course, all of the 1890
Convention’s 134 delegates were white Democrats, save just one African-
American Republican. A white Republican named Marsh Cook had
campaigned for a seat vowing to protect the rights of Black Freedmen. But a
few weeks before the convention, his bullet-riddled corpse was found on a
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rural road in Jasper County. “Another White Man Murdered in Mississippi,”
Cleveland Gazette, Aug. 2, 1890, at 2.
The Convention’s intent was plain. Its primary method?
Disenfranchisement. 2 According to a unanimous Mississippi Supreme Court
in 1896, the 1890 Convention’s purpose was “to obstruct the exercise of the
franchise by the Negro race.” Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896).
One of the key provisions enacted in 1890, and at the heart of this case,
disenfranchised voters who committed certain crimes. Miss. Const.
art. XII, § 241 (1890). The crimes the legislature settled on were those
thought to be more likely committed by Black people, a “patient, docile
people . . . given rather to furtive offenses than to the robust crimes of the
2
Of course, the 1890 Convention enacted several other racist provisions:
• “The marriage of a white person with a negro or mulatto, or person who
shall have one-eighth or more of negro blood, shall be unlawful and void.”
Miss. Const. art. XIV, § 263 (1890).
• “Separate schools shall be maintained for children of the white and
colored races.” Miss. Const. art. VIII, § 207 (1890).
• “[The legislature] may provide for the commutation of the sentence of
convicts for good behavior, and for the constant separation of the sexes,
and for the separation of the white and black convicts as far as practicable.”
Miss. Const. art. VIII, § 225 (1890).
• As opposed to previous state constitutions’ extending the right to bear
arms to “all persons,” Miss. Const. art. I, § 15 (1868), the 1890
constitution gave that right only to “every citizen,” enabling the
legislature to “regulate or forbid carrying concealed weapons,” Miss.
Const. art. VIII, § 12 (1890). These provisions, of course, were intended
to prevent Black Mississippians from arming. See Ward v. Colom, 253 So.
3d 265, 279 (Miss. 2018) (King, J., dissenting) (explaining that these
alterations were “craftily designed to obstruct or deny certain rights to
African Americans” (quoting Westley F. Busbee, Jr.,
Mississippi: A History 178 (2d ed. 2015)); Clayton E. Cramer, The
Racist Roots of Gun Control, 4 Kan. J. L. & Pub. Pol’y 17 (1994)).
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whites.” Ratliff, 20 So. 865 at 868 (listing “[b]urglary, theft, arson, and
obtaining money under false pretenses” as the furtive offenses to which
Blacks were thought to be “prone,” as opposed to “robbery and murder and
other crimes in which violence was the principal ingredient,” which were
viewed as “crimes of the whites”); see also McMillen, supra, at 43. When
enacted in 1890, § 241 listed nine disenfranchising offenses: bribery,
burglary, theft, arson, obtaining money or goods under false pretense,
perjury, forgery, embezzlement, and bigamy. Miss. Const. art. XII, § 241
(1890).
Section 241 has been amended only twice since 1890. In 1950, voters
approved an amendment to remove burglary. In 1968, voters approved an
amendment to add rape and murder. In both instances, voters voted yes or
no on removing burglary or adding rape and murder, respectively. As for the
other eight crimes listed in § 241, however, Mississippi voters have not
spoken on them since 1890. So those eight crimes, that the 1890 Convention
listed with express racist intent, remain on the books entirely unchanged and
continue to disenfranchise Mississippians today.
B.
Plaintiffs are two Black Mississippians who are disenfranchised by
§ 241. Roy Harness was convicted of forgery in 1986. He has since completed
his sentence. In 2018, he completed his baccalaureate degree in social work
from Jackson State University and was awarded a scholarship towards a
master’s degree—all at the age of 62. Due to his 1986 conviction and the
operation of § 241, however, Harness is unable to vote. Kamal Karriem was
convicted of embezzlement in 2005 and has also completed his sentence.
Karreim is a former city council member, a pastor, and business owner. Like
Harness, Karreim is unable to vote because embezzlement is a
disenfranchising offense under § 241.
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Plaintiffs sued Mississippi and raised equal protection claims under
the Fourteenth and Fifteenth Amendments.
II.
A law prohibiting the right to vote is unconstitutional if “its original
enactment was motivated by a desire to discriminate against blacks on
account of race[.]” Hunter v. Underwood, 471 U.S. 222, 233 (1985). “Once
racial discrimination is shown to have been a ‘substantial’ or ‘motivating’
factor behind enactment of the law, the burden shifts to the law’s defenders
to demonstrate that the law would have been enacted without this factor.”
Id. at 228 (citing Mt. Healthy City Bd. of Ed. v. Doyle, 429 U.S. 274, 287
(1977)). The original discriminatory taint on the law may be “cleansed” by
striking down the inseverable, tainted portions of the law. Amendment,
however, cleanses a discriminatory law only when it “alter[s] the intent with
which the article, including the parts that remained, had been adopted.”
Abbott v. Perez, 138 S. Ct. 2305, 2325 (2018) (emphasis added).
The case on point here is Hunter v. Underwood, 471 U.S. 222 (1985).
Hunter involved an Alabama constitutional provision modeled after
Mississippi’s § 241. The Alabama law disenfranchised voters for committing
crimes “thought to be more commonly committed by blacks,” defined as
“any crime involving moral turpitude.” Id. at 223, 232. Just as with § 241,
there were ample contemporaneous statements by Alabama legislators
showing the provision’s racist purpose. Like § 241, the Alabama provision
had been “pruned” over the years. Perez, 138 S. Ct. at 2325 (discussing
Hunter).
A unanimous Supreme Court held the law was unconstitutional
despite the law’s revisions. Hunter, 471 U.S. at 228–32. The Court rejected
Alabama’s argument that the law was legitimized by subsequent changes over
the intervening 80 years. See id. at 232–33. Specifically, even though judicial
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decisions had “struck down” some of the more “blatantly discriminatory”
inclusions in the list of crimes, such as “assault and battery on the wife and
miscegenation,” and left only offenses that “are acceptable [race-neutral]
bases for denying the franchise,” the Court determined the provision
violated equal protection. Id. at 233. The Court noted only that the law’s
“original enactment was motivated by a desire to discriminate against blacks
on account of race and the section continue[d] . . . to have that effect.” Id.
In this case, we must apply Hunter to the eight remaining crimes in
§ 241. So we must decide whether anything has happened since 1890 that has
“alter[ed] the intent with which the article, including the parts that remain[],
[was] adopted.” Perez, 138 S. Ct. at 2325 (emphasis added).
This court first addressed this issue 24 years ago in Cotton v. Fordice,
157 F.3d 388 (5th Cir. 1998). In Cotton, the court discussed the similarities
between § 241 and the Alabama law in Hunter:
The state defendants do not dispute that § 241 was enacted in
an era when southern states discriminated against blacks by
disenfranchising convicts for crimes that, it was thought, were
committed primarily by blacks . . . . Mississippi’s complicity in
this practice was recognized by its Supreme Court six years
after the original adoption of § 241 . . . . Although § 241 was
facially neutral and technically in compliance with the
Fourteenth Amendment, the state was motivated by a desire to
discriminate against blacks.
Id. at 391 (citations omitted). Despite these similarities, the court upheld
§ 241 based on the conclusion that amendments in 1950 and 1968 “removed
the discriminatory taint associated with the original version.” Id.
Cotton rests on the conclusion that Mississippi “reenact[ed]” § 241
each time it amended it. Id. at 390. Because the amendment process required
approval by both houses of the legislature, the Secretary of State, and voters,
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the court determined Ҥ 241 as it presently exists is unconstitutional only if
the amendments were adopted out of a desire to discriminate against blacks.”
Id. at 392 (emphasis added). The pro se plaintiff in Cotton, however, failed to
meet this burden of establishing discriminatory intent behind the
amendments. See id.
Plaintiffs argue that the crimes that were originally enacted in 1890,
and that remain in § 241 today, were selected with discriminatory intent and
therefore are unconstitutional. Mississippi moved for summary judgment
and relied on Cotton to argue that any discriminatory taint was removed when
§ 241 was amended in 1950 and 1968. Bound by Cotton, the district court
granted summary judgment to the State and a panel of this court affirmed.
Harness v. Hosemann, 988 F.3d 818, 823 (5th Cir. 2021), reh’g granted and
vacated, 2 F.4th 501 (2021).
III.
Cotton was wrongly decided. And the en banc majority compounds
that mistake by reaffirming it today.
In my view, the discriminatory intent behind the eight crimes that
were first placed in § 241 in 1890 remains today. That is because since 1890,
Mississippi voters have not touched them in any meaningful way so as to alter
the intent. Contrary to Cotton, the 1968 amendment did not reenact § 241. 3
3
Cotton is wrong because it concluded the 1950 and 1968 amendments were
reenactments, but its errors do not end there. Jarvious Cotton and Keith Brown, the two
plaintiffs in Cotton, proceeded pro se before our court, without the benefit of any detailed
factual record on the amendment processes that resulted in the current version of § 241.
See Gabriel J. Chin, Rehabilitating Unconstitutional Statutes: An Analysis of Cotton v.
Fordice, 157 F.3d 388 (5th Cir. 1998), 71 U. Cin. L. Rev. 421, 422-23 (2002) (observing
that the court “neither appointed counsel nor sought the views of an amicus curiae who
could have made an adversary presentation on this important issue”). For example, there
is no evidence that the court in Cotton considered whether the 1950 and 1968 amendments
were enacted by legislators “with awareness of [the law’s] initial unconstitutionality.” Id.
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So it is sufficient in this case to look at the intent in 1890, and in doing so
Plaintiffs have met their burden to establish discriminatory intent. And when
the burden shifts to the State under Hunter, there is no evidence that in 1890,
§ 241 would have been enacted, or the original eight crimes selected, absent
the consideration of race. Section 241 is therefore unconstitutional because it
violates the Equal Protection Clause.
The majority, however, concludes § 241 was “reenacted” in 1968 and
only the intent at that time matters. 4 Even if we engage with this faulty
“reenactment” theory, a cursory look at Mississippi’s well-known history
establishes a factual dispute on whether the legislature and electorate acted
with discriminatory intent in 1968. This same history sufficiently creates a
factual dispute on whether § 241 would have been enacted absent the
consideration of race when the inquiry is expanded to 1968 and after.
at 439 (“[T]here is no suggestion in the court’s opinion in Cotton that the unfortunate
origins of section 241 were specifically identified at any point in 1950 and 1968.”).
And the panel missed an opportunity to dispose of the case on a nonconstitutional
basis. See id. at 432. The panel in Cotton was presented with two challenges to § 241: an as-
applied challenge and a facial challenge. For the as-applied challenge, the plaintiff argued
his conviction for armed robbery did not fall within the word “theft” as used in § 241. The
panel, however, dismissed this argument. Robbery is not mentioned in § 241, but in a series
of opinions not mentioned in Cotton—by the parties or the court—the Attorney General of
Mississippi determined robbery is not a disenfranchising offense. See Op. Miss. Att’y Gen.,
Aug. 29, 1990, 1990 WL 547896; Op. Miss. Att’y Gen., Mar. 3, 1982, 1982 WL 44073.
These opinions suggest robbery does not necessarily fall within the meaning of theft under
Mississippi law because the taking of property need not be successful to sustain a robbery
conviction. See Harris v. State, 445 So. 2d 1369, 1370 (Miss. 1984) (stating the taking of
property need not be completed to count as robbery).
4
Like the majority, I focus on the 1968 amendment. Ante, at 5 n.5. All that needs
to be said about the 1950 amendment is that, despite being enacted 80 years after the
Fifteenth Amendment’s ratification, virtually no Black people had the right to vote on that
amendment.
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Therefore, even under the majority’s theory, there are fact disputes that
require the reversal of summary judgment to the State.
A.
Application of Hunter requires us to overrule Cotton’s conclusion that
there is no evidence of discriminatory intent behind § 241. There is no
dispute that § 241 was enacted, and the crimes therein were selected, with a
discriminatory purpose. Without belaboring the racist origins of the 1890
Convention, the only conclusion here is that § 241 “was motivated by a
desire to discriminate against blacks on account of race.” Hunter, 471 U.S.
at 233. That provision continues to have a discriminatory impact. 5 Racial
5
Contrary to Judge Ho’s concurrence, Plaintiffs do not need to establish
discriminatory impact. The test from Hunter was adopted from Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252 (1977). That test focuses on
discriminatory purpose because that is what the Equal Protection Clause prohibits.
Discriminatory impact, however, is relevant as evidence of discriminatory purpose. As the
Supreme Court stated in Washington v. Davis, 426 U.S. 229, 242 (1976): “Disproportionate
impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination
forbidden by the Constitution.” The Court’s statement in Hunter about continuing
discriminatory impact, then, meant that only if the law were “enacted today” would
evidence of impact be relevant, as the plaintiffs would have lacked the abundant historical
evidence of the initial animus motivating the law. 471 U.S. at 233. But § 241 was initially
enacted with discriminatory intent, and because § 241 has not been reenacted since,
evidence of discriminatory impact is unnecessary.
In any event, § 241 continues to have a disparate impact on Black Mississippians.
African Americans comprise some 36% of Mississippi’s population yet make up over half
of those disenfranchised for embezzlement. Accordingly, Black Mississippians are more
likely to be disenfranchised for embezzlement than are non-Black Mississippians despite
comprising a minority of the state’s population. In Mississippi, 235,152 people, or almost
11% of the state’s voting age population, have lost their right to vote. Mississippi has the
third highest percentage of disenfranchised Black residents of any state in the nation:
130,501 Black Mississippians, or 16% of voting-age African Americans. Almost a third of all
African American men in Mississippi are disenfranchised. Chris Uggen et al., Estimates of
People Denied Voting Rights Due to a Felony Conviction, The Sentencing Project
(Oct. 30, 2020), https://www.sentencingproject.org/wp-content/uploads/2020
/10/Locked-Out-2020.pdf. Of the nearly 50,000 individuals convicted of disenfranchising
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discrimination was a motivating factor behind the enactment of § 241 and the
eight discriminatory-chosen crimes. Under Hunter, the burden has shifted to
the State to demonstrate that the law would have been enacted without this
factor.
Despite Hunter’s clear application here, the majority relies on a caveat
to uphold § 241 and reaffirm Cotton. In Hunter, the Court declined to decide
“whether [the discriminatory provision] would be valid if enacted today
without any impermissible motivation.” Id. (emphasis added). The majority
takes the position that a later reenactment of a facially neutral yet originally
discriminatory law can overcome the odious origins. Ante, at 11; see also
Cotton, 157 F.3d at 391–92. But even if “reenactment” can have this effect,
that is not what happened in Mississippi in 1968.
The Session Laws through which § 241 was changed refer to
“Amendment,” and not to repeal, supersession, or reenactment. See H.R.
Con. Res. 5, 1968 Reg. Sess. Ch. 614 (Miss. Laws 1968) (titled “A
concurrent resolution to amend Section 241” and stating “Be it resolved . . .
That the following amendment to the Constitution of the State of Mississippi
be submitted to the qualified electors[.]”). The legislature therefore saw
itself amending § 241, rather than replacing or reenacting it. The legislature
offenses in Mississippi state courts between 1994 and 2017, almost 60% are Black and 38%
are white. Similarly, of the approximately 29,000 individuals who have completed their
sentences for the convictions of disenfranchising offenses between 1994 and 2017, 58% are
Black while only 36% are white. African American adults in Mississippi are thus 2.7 times
more likely than white adults to be disenfranchised by § 241. Id.; cf. Hunter, 471 U.S. at 227
(“Jefferson and Montgomery Counties blacks are by even the most modest estimates at
least 1.7 times as likely as whites to suffer dis[en]franchisement under Section 182 for the
commission of nonprison offenses.” (citation omitted)).
Thus, even if Judge Ho is correct, there is a factual dispute about discriminatory
impact. And because the district court did not address this issue below, Plaintiffs are at least
entitled to present impact evidence before the district court.
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accordingly framed the ballot as “For Amendment” or “Against
Amendment,” meaning the vote presented to the electorate referred to
amendment and not reenactment. Voters could only amend § 241, they could
not reenact it.
The electorate was given only an up or down vote on an amendment. If
the amendment passed, the remainder of the existing list would persist just
as it would if the amendment had failed. In other words, the amendment
votes had no effect on the undisputedly racist list of disenfranchising crimes
originally enacted in 1890. The votes “for amendment” allowed murder and
rape to be added to § 241. The votes “against amendment” allowed § 241 to
remain unchanged—i.e., for the provision to not include murder and rape.
These votes, either for or against amendment, gave no say on the other
crimes listed in § 241, importantly, the crimes that were enacted in 1890. The
“for amendment” votes did not influence the inclusion or exclusion of
bigamy or embezzlement. The “against amendment” votes did not have the
effect of revoking theft or bribery from the list. Regardless of the outcome of
the vote, the eight crimes that were enacted in 1890 would remain. Because
the public vote had no effect on those discriminatory-chosen crimes, the vote
also had no effect on allegedly altering the intent behind those crimes. See
Perez, 138 S. Ct. at 2325 (noting that discriminatory taint of law is not
eliminated unless an amendment “alter[s] the intent with which the article . . .
had been adopted.” (emphasis added)); Veasey v. Abbott, 888 F.3d 792, 822
(5th Cir. 2018) (Graves, J., concurring in part and dissenting in part)
(“Nothing cuts the thread of [discriminatory] intent here.”). 6
6
I recognize that I have, in a previous opinion, endorsed Cotton as a case where the
discriminatory intent of § 241 was eliminated by reenactment. See Veasey, 888 F.3d at
822 (Graves, J., concurring in part and dissenting in part). But it is now clear that Cotton is
built on a faulty premise that the amendments wholly “reenacted” § 241. Instead, this case
is like Veasey where there was “no reenactment” at all. Id. And the inability of the 1968
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This is particularly important in this case because only the people,
through a direct exercise of popular sovereignty, can amend a constitution,
and it follows that only the people through the amendment process can
cleanse a racist constitutional provision of its discriminatory purpose. See
Miss. Const. art. XV, § 273(2); cf. U.S. Const. art. 5. Mississippians
have not had a say on the eight crimes originally enacted in 1890 since 1890.
Those crimes were not on the table in 1968. So there is no basis to conclude
Mississippians ratified or reenacted § 241 or the eight crimes from 1890. And
the Supreme Court has explained that while “[p]ast discrimination cannot,
in the manner of original sin, condemn governmental action that is not itself
unlawful,” Hunter’s burden-shifting framework applies in cases where a law
has been “pruned” but “never repealed,” as long as the discriminatory law’s
“amendments did not alter the intent with which the [law], including the
parts that remained, had been adopted.” Perez, 138 S. Ct. at 2324-25. Because
§ 241 was merely “pruned” in 1968, not “repealed” or “reenacted,” the
burden has shifted to the State.
Consider an analogy: a city council votes to build a wall. Years later, it
offers the city’s voters a choice on whether to make the wall a foot shorter.
The voters in this scenario can vote only on whether to change the wall; they
are given no opportunity to get rid of it. Regardless of the vote’s result, it
expresses no information on voters’ views of the wall itself, only on the
(modest) change to the wall’s height. So too here. The 1968 vote reflects the
voters’ views only on the addition or subtraction of three crimes in the
original § 241 list. Those votes did not touch, in any way, the eight original
crimes from 1890 that remain in § 241 to this day. Cf. Veasey, 888 F.3d at 822
(Graves, J., concurring in part and dissenting in part) (“The new legislation
votes to affect the original eight crimes shows that as a practical matter, nothing has cut the
thread of discriminatory intent that originated in 1890. Id.
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just added new provisions to the discriminatory framework of the former
legislation—modifications which . . . continue to burden the franchise of poor
and minority voters. The old legislation ‘remain[s] on the books’ and is still
the law.” (emphasis added)).
Although it is unclear whether reenactment can cure a discriminatory
law, see Hunter, 471 U.S. at 233, there is no basis to conclude § 241 has been
reenacted since 1890. So we need only look to the intent behind the original
enactment in 1890. See Veasey, 888 F.3d at 822 (Graves, J., concurring in part
and dissenting in part) (stating there is no need to consider “the state of mind
of the reenacting body” when “[t]here was no reenactment”). Hunter clearly
holds that “[o]nce racial discrimination is shown to have been a ‘substantial’
or ‘motivating’ factor behind enactment of the law, the burden shifts to the
law’s defenders to demonstrate that the law would have been enacted
without this factor.” 471 U.S. at 228. And because racial discrimination was
undisputedly a motivating factor behind the enactment of § 241, Plaintiffs
have met their burden under Hunter.
B.
But according to the majority, the explicitly racist intent behind the
1890 constitution is irrelevant. Instead, because the majority erroneously
concludes the provision was reenacted in 1968, what matters is whether there
was discriminatory intent behind the 1968 amendment. See Abbott, 138 S. Ct.
at 2324 (“Whenever a challenger claims that a state law was enacted with
discriminatory intent, the burden of proof lies with the challenger.” (citation
omitted)). The majority thus makes this case about Mississippi in the 1960s.
In doing so, the majority ironically fails to acknowledge the relevant and well-
known historical evidence of Mississippi in the 1960s that creates a factual
dispute about whether the 1968 amendment was motivated by discriminatory
intent. And while the majority contends “the overall social and political
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climate in Mississippi in the 1950s and 1960s fails to carry plaintiffs’
burden,” ante, at 19, I must disagree.
Even a cursory review of Mississippi history leading up to 1968
demonstrates that life for Black Mississippians in this era was little better
than it had been for their grandparents in 1890. As John Dittmer describes:
For generations, in the treatment of its African-American
citizens, Mississippi had been, as Roy Wilkins bluntly put it,
“the worst state.” In no other southern state was the use of
terror against the black population so systematic and pervasive.
Both the Citizens’ Council and the Ku Klux Klan made a
mockery of the law, employing economic sanctions,
intimidation, and violence to maintain white supremacy.
Elected officials and business leaders had either cooperated
with these extremists or stood by hoping that somehow calm
would return, with the racial status quo maintained.
Mississippi had no racially enlightened white political
leadership, no locally influential voices of moderation in the
media, no white ministerial associations pleading for racial
justice.
John Dittmer, Local People: The Struggle for Civil
Rights in Mississippi 423 (1994). So entrenched was racial apartheid
in Mississippi that white South African politicians made several research
trips to the state in the mid-20th Century to learn how best to keep their own
Black population disempowered and impoverished in perpetuity, and Nazi
intellectuals found in Mississippi a model for their Aryan ethno-state, with
Adolph Hitler proclaiming that the Volga region would be “our Mississippi.”
See Prudence L. Carter, Stubborn Roots: Race, Culture,
and Inequality in U.S. and South African Schools 19
(2012); Joanna L. Grisinger, “South Africa is the Mississippi of the world”:
Anti-Apartheid Activism through Domestic Civil Rights Law, 38 Law & Hist.
Rev. 843 (2019); Ira Katznelson, “What America Taught the Nazis,” The
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Atlantic (Nov. 2017) http://tinyurl.com/mryap3kd; Alex Ross, “How
American Racism Influenced Hitler,” The New Yorker (April 30,
2018), http://tinyurl.com/3csryjnc.
The history of the struggle for civil rights in Mississippi in the 1960s
reveals three themes. First, most white Mississippians in the 1960s strongly
and overtly opposed the civil rights movement that sought to place Black
Mississippians as equals in the state. An examination of Mississippi society
in the 1960s—specifically its endemic white supremacy and reactionary
backlash to the Civil Rights Movement—makes it implausible to think the
electorate acted without discriminatory intent in voting on the § 241
amendment in 1968. Second, the actions of the legislature reveal consistent
racist motives behind its legislative proposals. Particularly, the legislature and
state leaders often acted to keep Black Mississippians as second-class
citizens, undermine desegregation demands, and dilute the Black vote.
Third, the federal government’s role in the civil rights struggle in Mississippi
was oftentimes characterized by inaction at best, and collusion with white
supremacists at worst. This relationship between Mississippi and the federal
government throughout this time and in response to the Civil Rights Act,
Voting Rights Act, and Brown v. Board of Education, show just how little
Mississippi was willing to comply with federal mandates, debunking the
majority’s contention that Mississippi responded to a report from the Civil
Rights Commission in amending § 241.
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1. Mississippians’ Hostility to Civil Rights
“A desert state sweltering in the heat of injustice and oppression.” 7
As Historian Neil McMillen has noted, Mississippi in the early 1950s
saw an “atmosphere of unremitting hostility to social change in any form,
where law was the servant of white supremacy,” and, with the law on their
side, “white supremacists had little need for lawlessness.” McMillen,
remarks at Freedom Summer Reviewed conference, Jackson and Tougaloo, MS,
Oct. 30-Nov. 1, 1979 (quoted in Dittmer, supra, at 46). But that all
changed with the prospect of court-ordered desegregation, grassroots civil
rights activism, and federal legislation. Around this time Mississippi
“plung[ed] into a period of violent interracial conflict unmatched since the
bloody years of the 1870s.” Dittmer, supra, at 34. As Reverend George W.
Lee said at a small rally for voter registration in 1955, “Pray not for your mom
and pop. They’ve gone to heaven. Pray you can make it through this hell.” 8
Id. at 53.
Opposition to the civil rights movements was a society-wide
campaign. Whites took a keen interest in curricula at white schools, banning
books deemed too friendly to civil rights. Id. at 60–61. In 1956, the Mississippi
House passed a bill requiring the State library commission to buy books
advancing white supremacy. One purchased book, promoted in schools
throughout the state, was Judge Tom Brady’s Black Monday, a diatribe
against Brown, that featured the following passage: “You can dress a
chimpanzee, housebreak him, and teach him to use a knife and fork, but it will
7
Rev. Dr. Martin Luther King, Jr., “I Have a Dream,” Lincoln Memorial Address
on August 28, 1963.
8
Weeks later Rev. Lee would die of gunshot wounds to the face from white
segregationist vigilantes in a drive-by shooting. The local newspaper reported only that
Rev. Lee died in a “bizarre” car accident. Dittmer, supra, at 53.
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take countless generations of evolutionary development, if ever, before you
can convince him that a caterpillar or cockroach is not a delicacy. Likewise
the social, economic, and religious preferences of the Negro remain close to
the caterpillar and the cockroach.” Id. at 60–61. Brady was appointed to the
Mississippi Supreme Court in 1963, a position he would hold until his death
in 1973.
Banks rescinded credit and declined mortgages for any Black person
too interested in desegregation, the IRS took a sudden interest in civil rights
leaders, local mail carriers publicized the names of NAACP mail recipients,
and death threats were made against civil rights workers and sympathizers.
Id. at 48–50. Through much of the 1960s, it was not uncommon for white
county registrars to call the police whenever Black people tried to register to
vote, even though they almost always failed the state’s subjective and
impossible literacy tests. Id. at 132. Police chiefs would physically block Black
people from registering to vote. State law required local newspapers to
publish the names of Black people who tried to register to vote. Id. at 137.
White employers fired any individual with connections to the Black suffrage
movement, however tenuous, while local mayors and sheriffs shuttered
Black-owned businesses or revoked Black churches’ tax-exempt statuses on
trumped-up violations. Municipalities voted to shut off utilities or rescind
entitlement to federal benefits like food surplus programs to whole swaths of
Black communities deemed too friendly to civil rights causes. When Delta
towns tried to starve Black communities by withholding access to a federal
food surplus program, volunteers from around the country sent tons of food
to the Delta, much of which was seized by police as contraband or set ablaze
by white supremacists. Id. at 144-47. Black leaders who complained of these
reprisals were arrested for “public utterances designed to incite breach of the
peace.” Id. Four years after Brown, Clennon King, a Black man, applied for
admission to Ole Miss. The State responded by having King involuntarily
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committed to an asylum, because according to the State, only an insane
person would presume so much. Taylor Branch, Parting the
Waters: America in the King Years, 1954-63 253 (1988).
When the government’s tactics to stunt Black voter registration
failed, “night riders went into action,” engaging in a terror campaign
throughout the state in which dozens of Black people, including children,
were murdered by white vigilantes. Dittmer, supra, at 137. Such violence
almost never resulted in any punishment for the perpetrators. In 1955,
Emmett Till was lynched for speaking too warmly to a white woman. The
defendants’ attorney closed the trial expressing confidence that “every last
Anglo-Saxon one of you has the courage to” acquit the two defendants. After
an hour’s deliberation, the jury did just that. The next year, both men would
gleefully admit that they had indeed tortured and murdered the 14-year-old
Till. Id. at 57. In 2008, a memorial sign was placed at the spot where Till’s
body was pulled from the Tallahatchie River. In 2019, local officials had to
install a new bulletproof sign memorializing the lynching, as previous
memorials were either stolen or shot up. Kayla Epstein, “This Emmett Till
memorial was vandalized again. And Again. And Again. Now, it’s bulletproof,”
The Wash. Post (Oct. 20, 2019), http://tinyurl.com/2ncbw473.
Examples of similar violence abound during the period leading up to
1968. In 1961, Mississippi state legislator E.H. Hurst murdered Herbert Lee,
a Black farmer, father of nine children, and member of the Amite County
NAACP branch. What did Lee do to provoke the murder? He assisted in a
voter registration drive that yielded only half a dozen new registrants. The
Justice Department declined to offer protection to a witness to the murder,
reasoning that it did not matter “what he testified [because] Hurst would be
found innocent.” Dittmer, supra, at 109. The witness was himself
murdered two years later for the crime of speaking with Justice Department
investigators. Id. at 215. So common were these acquittals that one white man
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told a local newspaper in 1956: “There’s open season on the Negroes now.
They’ve got no protection, and any peckerwood who wants can go out and
shoot himself one, and we’ll free him.” David Halberstam, “Tallahatchie
County Acquits a Peckerwood,” The Reporter, Apr. 19, 1956, at 25-30
(quote on 28).
This period is also characterized by blatant defiance of federal civil
rights decrees. This defiance was often met with timid indifference by the
Eisenhower, Kennedy, and Johnson Administrations. In 1961, the federal
government banned segregation in bus terminals. A group of six activists
from the Congress of Racial Equality, seeking to test this ruling, visited a bus
station in McComb. They were severely beaten by a white mob. Although the
police station was less than a block from the bus station, police declined to
intervene. Dittmer, supra, at 114. Segregationist county clerks in
Mississippi routinely defied injunctions from this court and from the
Supreme Court throughout the 1960s. E.g., Jack Bass, Unlikely
Heroes 218-20 (1981). In July 1963, this court upheld a judgment against
the Forrest County clerk and issued a civil contempt order for the clerk’s
continued refusal to allow Blacks to register to vote in Hattiesburg.
Dittmer, supra, at 184. Even after the Supreme Court upheld that order in
1964, the clerk continued to refuse to register Black voters. Id.
Mississippi officials from top to bottom took pride in blatantly
violating federal civil rights decrees. When this court ordered Ole Miss to
immediately enroll James Meredith, Meredith v. Fair, 305 F.2d 343 (5th Cir.
1962), Mississippi Governor Ross Barnett claimed, on television, that “no
school will be integrated in Mississippi while I am your governor,” and
demanded that all officials be prepared to suffer imprisonment for the cause
of segregation: “We will not drink from the cup of this genocide.”
Dittmer, supra, at 139. Barnett’s Lieutenant Governor, Paul Johnson, Jr.,
would later personally block Meredith from entering the Ole Miss campus,
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setting off a race riot in which two people were killed and 160 U.S. Marshals
injured. Barnett’s and Johnson’s actions were met with near-unanimous
praise from Mississippi’s white establishment: “the leaders of nearly every
community, bankers, lawyers, businessmen and workers went on an orgy of
rebellion against constituted authority and the federal government.” Id.
Johnson would be elected governor the next year, and a reservoir and some
government buildings are named after Barnett to this day in Mississippi.
After Meredith began attending Ole Miss, enrollment at the university
plummeted. The “few students who befriended Meredith were targets of
crude reprisals”: one friend had a fire set in his room and several other friends
returned to find their rooms “smeared with excrement.” Id. at 142.
So staunch was Mississippi’s adherence to white supremacy that the
Kennedy Administration was “convinced that strong federal support for civil
rights activists would bring on another civil war in Mississippi, with dire
consequences for the South and the nation.” Id. at 94. Citing “federalism,”
the nascent Kennedy Administration declined to intervene against rampant
civil rights violations in Mississippi. Id. at 94.
When the federal government did intervene, it often did so only
tepidly and as a last resort. In Leflore County, after years of police repeatedly
and routinely beating and arresting Black people who merely walked to the
county courthouse to register to vote, the Justice Department filed a daring
civil rights lawsuit against the City of Greenwood in 1963. The suit was
quickly withdrawn amid pressure from Mississippi’s (white) congressional
delegation. Id. at 154–55. Greenwood and Leflore County officials boasted
that they had defeated the Washington bureaucrats. Rather than white
Mississippians fearing federal reprisal, it was the other way around. The
Kennedy Administration withdrew the suit because it “feared a race war in
Greenwood” in the event it obtained an injunction to release those who were
arrested. Id. at 156. Journalists at the time observed that white supremacists
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in Greenwood “route[d] the federal government in a showdown on the most
basic right of American citizenship.” Id. at 157.
With federal civil rights legislation on the horizon, Mississippi yet
again redoubled its suppression tactics in the mid-1960s. In summer of 1963,
a group of NAACP activists left Greenwood by bus. At the Winona bus stop,
local police arrested and tortured each activist who left the bus, for the crime
of having protested in Greenwood for civil rights. Id. at 171; Branch, supra,
at 819. When the SNCC sent a delegation to Winona to arrange bail for the
jailed protestors, they too were arrested and beaten. Dittmer, supra, at 172.
In response, the Justice Department brought a rare prosecution against
several law enforcement officials involved in the arrests. A federal jury of
local white men acquitted the defendants on all counts. Id. at 173.
That same summer, Medgar Evers was assassinated days after he
helped organize the Jackson Woolworth sit-in, at which dozens of angry white
supremacists assaulted a handful of activists sitting at a “whites only”
counter of the Woolworth department store. Despite national attention of the
sit-in and murder, and thousands of angry Black Americans threatening mass
protest and boycott, the Kennedy Administration could cajole out of
Jackson’s mayor only the promise to hire a handful of Black employees for
inconsequential city government positions. Id. at 167–69.
As bad as life was for Mississippi Blacks in the early 1960s, it generally
worsened after the enactment of federal civil rights legislation in 1964 and
1965. The Klan was reborn. In February 1964, two hundred Klansmen
gathered in Brookhaven to establish the White Knights as a statewide
organization. They drafted a 40-page constitution laying out a four-phase
plan of attack, with the final phase simply labeled “extermination.” Id. at 217.
On one May evening in 1964, crosses burned in 64 Mississippi counties.
“Cross burnings announced the Klan presence in an area . . . followed by
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bullets and bombs.” Id. at 215. Klansmen abducted voter registration
organizers across the state; if those organizers were lucky, they would only
be stripped and whipped, invoking the same torture endured by their
enslaved ancestors. For the dozens who were not so lucky, they would be
found mutilated and murdered. Arrests for these crimes, much less
prosecutions, were exceedingly rare, as law enforcement worked hand-in-
hand with Klan vigilantes. Id. at 217. “Klan infiltration into law enforcement
agencies was widespread, with police officers and members of the Mississippi
State Highway Patrol on the Klan’s secret membership rolls.” Id. at 218.
That summer saw 35 shootings, and 65 bombings—35 occurred at
churches—by Klansmen. This explosion of violence coincided with
Mississippi law enforcement arresting well over a thousand civil rights
organizers. Id. at 251.
Klan violence was rampant and often proceeded under express
sanction by local law enforcement. On June 21, 1964, civil rights organizers
Andrew Goodman, James Chaney, and Michael Schwerner were arrested by
a Neshoba County Sheriff’s deputy, who turned the three over to Klansmen
for execution. Id. at 247. FBI agents in the area waited almost 24 hours before
searching for the three students, who by then were already dead. Several
months earlier, Mississippi’s State Sovereignty Commission had given the
Neshoba County Sheriff’s Department a description of Schwerner, his car,
and his license plate number, even though Schwerner was not wanted for any
crime. Id. at 251. The Schwerner family’s wish that their son be buried next
to James Chaney (a Black man) in Mississippi was denied; even the state’s
cemeteries were segregated. Id.
Once the Civil Rights Act of 1964 took effect, racist oppression only
continued to worsen. Mississippi’s powerful “Citizens’ Council”—a kind of
reactionary civic association of white-supremacist community leaders—
called for mass defiance, urging whites to boycott any business that served
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Black people. Mississippi’s Governor similarly urged noncompliance, while
Mississippi’s all-white Democratic delegation denounced the Civil Rights
Act, supported withdrawing the United States from the U.N., demanded a
“purge” of the Supreme Court, and called for “separation of the races in all
phases of our society.” Id. at 273. Businesses that followed the new federal
law endured reprisals from white supremacists. The Black people who
patronized those businesses were beaten or pelted with trash, harassed by
police for trumped-up infractions, or abducted and tortured by vigilante
groups. Id. at 276-78. Black voting participation actually declined in 1964
largely due to an eruption of violence and harassment against Blacks. Id.
at 323.
Despite the enactment of federal civil rights legislation, the Lyndon B.
Johnson Administration remained unsupportive of Mississippi’s civil rights
workers. At the Democratic National Convention in Atlantic City in 1964,
President Johnson called a sham press conference in the middle of Fannie
Lou Hamer’s televised testimony so as to distract from her harrowing,
firsthand accounts of Mississippi’s apartheid. Id. at 288. When Black civil
rights activists tried to be seated as electors instead of Mississippi’s white,
unpledged electors—who would later go on to support the Republican
nominee—the FBI spied on the activists. Id. at 292; Intelligence Activities and
the Rights of Americans, Book II: Final Report of the Select Committee to Study
Governmental Operations, U.S. Senate, 117 (1976). After the 1964 election,
civil rights organizers mounted a challenge to Mississippi’s all-white
Congressional delegation, noting that these representatives won sham
elections in which Black voters were systematically excluded.
The reign of terror against Black Mississippians continued. On
August 27, 1964, Klansmen in McComb bombed the home of a Black woman
who had recently tried to register to vote. The town of 12,000 had seen over
a dozen such bombings in the previous two months alone. Id. at 303–04. Yet
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when an FBI agent arrived at the scene of the explosion with McComb’s chief
of police, the agent accused the homeowner of planting the bomb herself—
just outside the room where her toddler children were sleeping—and
pressured her to take a lie detector test. When she refused, her husband was
arrested for running an unlicensed mechanic operation in his garage. The
next day, he was tried without a lawyer and coerced into pleading guilty. He
was fined $600 and sentenced to nine months in jail. Despite the slew of
bombings in the area, the FBI reduced its force in the town by more than half,
and the police chief would later proudly tell the Civil Rights Commission that
he had worked arm in arm with FBI agents in making arrests such as these.
Id. at 306–07.
After the FBI withdrew from McComb, the Klan continued bombing
Black-owned businesses and assaulting civil rights workers with impunity.
Though local law enforcement almost certainly knew who the main Klan
bombers were, it took a threat to send in over a thousand federal troops to
McComb for police to finally make a handful of arrests. Id. at 310. But when
the Klansmen-arsonists pled guilty to crimes whose maximum penalty was
death, the state judge overseeing the proceedings gave the defendants
suspended sentences and ordered their immediate release. When asked to
justify this leniency, the judge declared that the defendants had been “unduly
provoked” by Black civil rights workers who “are people of low morality and
unhygienic,” while the bombers hailed from “good families” and “deserve
a second chance.” Id. That same afternoon, another McComb judge ordered
13 civil rights workers jailed without bond for serving food in the local
freedom house without a license. When the local newspaper decried these
injustices, the newspaper’s office was shot up and bombed, and a burning
cross placed in front of the editor’s home. Id. at 312. That November, several
McComb businesses served Black customers—under the protection of
dozens of federal agents and surrounded by news cameras. But when the FBI
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and reporters left, most of the businesses resumed segregation. In 1965, only
one McComb business catered to both Blacks and whites. Id.
In 1966 (12 years after Brown), a federal judge ordered Grenada to
desegregate its schools. On Monday, September 12, 1966, about 150 Black
students arrived at school and “entered unchallenged.” Id. at 404. But upon
leaving at the end of the day, the children were attacked by a mob of white
men “with ax handles, pipes, and chains.” Id. at 405. A reporter arrived to
find “a black boy lying on the sidewalk, his ankle injured and his hands
covering his bloody head. Further down the sidewalk, ‘some husky young
men were whipping a little Negro girl with pigtails. She was running. The
men chased after her, whooping and leaping up and down like animals.’” Id.
A 12-year-old boy named Richard Sigh was tripped by a white woman and,
on the ground, was beaten by a crowd with clubs. The mob broke Sigh’s leg
and, later that day, his father was fired from his job. Id. All this happened
while the local sheriff and several FBI agents looked on. In June 1967, a
handful of the attackers were tried in federal court. An all-white jury
acquitted each man.
This recount only skims the surface of life in Mississippi during the
relevant time period. The racial climate in Mississippi leading up to 1968, the
year that the legislature and electorate allegedly acted race neutral as to § 241,
was characterized by a society-wide crusade to keep Black people as second-
class citizens. Any step forward to improve civil rights was followed swiftly
by massive public resistance. While in my view Mississippi voters have not
had a say on the eight original disenfranchising crimes in § 241, a brief
consideration of Mississippi history calls into question whether the electorate
acted with discriminatory intent in 1968. See Stewart v. Waller, 404 F. Supp.
206, 214 (N.D. Miss. 1975) (considering “the realities of Mississippi political
life in 1962” and “the historical context in which” legislative action occurred
to determine intent). Mississippi and its citizens were as firmly committed to
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Mississippi’s historical apartheid as ever. It is hard to imagine an electorate
so relentlessly active in its resistance to racial equality was somehow
suddenly race neutral in their handling of a racially motivated provision in its
constitution.
To the extent 1968 is the relevant time period for analyzing
discriminatory intent, there is at least a fact dispute that requires the reversal
of summary judgment for the State.
2. The Mississippi Legislature and State Leaders
In Mississippi, only the people, the voters, can amend the state
constitution. See Miss. Const. art. XV, § 273(2) (requiring constitutional
amendments to be “submitted in such manner and form that the people may
vote for or against each amendment separately”). But Cotton, the majority,
and the State rely on the “deliberative process” and actions of the
Mississippi legislature to conclude there is no evidence of discriminatory
intent behind the 1968 amendment to § 241. See Cotton, 157 F.3d at 391; ante,
at 11, 17. This reliance is misplaced because the Mississippi legislature cannot
amend or alter the voters’ intent behind the eight crimes that they originally
enacted with discriminatory intent. Regardless, if the legislature’s and state
leaders’ actions matter, they are also telling. Cf. Perez, 138 S. Ct. at 2325
(stating historical background is an evidentiary source relevant to intent).
Responding to Brown, Mississippi’s U.S. Senator James Eastland
promised that the state “will not abide by nor obey this legislative decision of
a political court. . . . We will take whatever steps are necessary to retain
segregation in education. . . . We are about to embark on a great crusade to
restore Americanism.” Dittmer, supra, at 37. The state’s attorney general
asked every white Mississippi lawyer to sign up as a “Special Assistant
Attorney General” to defend local school districts against potential lawsuits
from Black students. Id. at 38. This would not be necessary because white
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Mississippians’ ensuing opposition to desegregation was so fierce, and
federal pressure so lackluster, that the national NAACP “dropp[ed]
Mississippi like a hot potato” from its civil rights work in 1955. Id. at 52.
Another eight years would pass before the NAACP filed its first
desegregation suit against Mississippi public schools, and then only after
persistent finagling by Medgar Evers, who knew that the courts’ assistance
was needed to overcome a political process deliberately stacked against racial
progress. Id. at 52.
In the mid-1950s, Mississippi’s legislature began a decades-long
campaign to kill the civil rights movement by any means necessary. “Books
were banned, speakers censored, network television programs cut off in
midsentence.” Dittmer, supra, at 58. To ensure civil rights organizations
gained no foothold in the state, the legislature created the State Sovereignty
Commission, which maintained a secret police force dedicated wholly to
stemming the tide of racial progress. The Commission infiltrated civil rights
groups with spies, publicized the names of civil rights organizers, and
demanded advance copies of articles from local newspapers relating to race.
Articles deemed too progressive were killed, often to be replaced by
Commission-produced propaganda. Id.
In 1956, the legislature passed a resolution of interposition, declaring
Brown to be “invalid, unconstitutional, and of not lawful effect.” The
resolution passed 136 to 0. Id. at 59. Mississippi also passed a law in 1954
requiring registration applicants to provide a “reasonable interpretation of a
section of the state constitution selected by the county registrar, who would
judge the “reasonableness” of the answer. Id. at 53. This closed a loophole
in the 1890 Constitution requiring that applicants only be able to read a
portion of the constitution. The referendum passed by nearly five to one.
With new laws such as these, Black registration actually decreased
precipitously in the late 1950s.
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In Jefferson Davis County, officials conducted a “reregistration
campaign,” subjecting previously registered Black voters to the new, more
restrictive laws, reducing the number of registered Black voters from 1,221 to
70. Id. at 71. “In Sunflower County, where only 114 of 18,949 eligible blacks
were [registered to vote], the registrar simply turned away black applicants.
The sheriff’s office in Tallahatchie County, two-thirds black and with no
Negro voters, refused to accept the poll tax payment from blacks. A black
principal in Tallahatchie County who attempted to register lost his job, and a
Forrest County minister with two degrees from Columbia University failed
the [literacy] test twice. When pressed for an explanation, the registrar stated
that the minister’s membership in the NAACP made him unfit to vote.” Id.
at 53.
Mississippi officials also openly defied the Voting Rights Act of 1965,
with minimal response from the federal government. In 1966, faced with the
prospect of Black Mississippians newly empowered by federal statute with
the right to vote, two state senators introduced legislation that would forcibly
relocate Blacks out of Mississippi. Id. at 387. Most Mississippi counties in
1968 saw less than 25% registration rates among eligible Black voters, who
feared reprisal from white vigilantes and state officials alike. Steven F.
Lawson, In Pursuit of Power: Southern Blacks and
Electoral Politics, 1965-1982, 14-15 (1985). It was not until 1967 that
a Black person was elected to the state legislature for the first time since
Reconstruction, in a district with a population 72% Black. Dittmer, supra,
at 416.
Mississippi also waited until the late 1960s to abandon these overt
discrimination tactics for “more subtle strategies to dilute and cancel the
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black vote.” 9 Frank R. Parker, Black Votes Count: Political
Empowerment in Mississippi after 1965, 34-37 (1990). The
legislature would enact several other measures to stifle Black Mississippians
and continue to skew the political process against Black electoral power.
As is well-known, the Mississippi legislature in 1966 (a majority of
whom served in 1968), enacted several laws to limit the voting power of Black
Mississippians. It redrew Mississippi’s five congressional districts, dividing
voters in the Black majority Delta among three different districts. It also
created multi-member at-large districts for state and county officers, giving
the edge to white majorities. See, e.g., 1968 Miss. Laws H.B. 260; H.B.
102; H.B. 1114; Connor v. Johnson, 279 F. Supp. 619 (S.D. Miss. 1966),
aff’d, 386 U.S. 483 (1967); see also Allen v. State Bd. of Elections, 393 U.S. 544,
550 (1969); Stewart v. Waller, 404 F. Supp. 206, 214 (N.D. Miss. 1975) (“In
view of that circumstance and with an awareness of the history of race
relations in Mississippi, this court, in determining the purpose for
which Sec. 21-3-7 was enacted, is not free to overlook the context giving rise
to its enactment.”). In at least 11 counties, school superintendents were
changed to an appointment system rather than determined by elections. See
Miss. Code Ann. § 6271 (1966); Allen, 393 U.S. at 550–51. The 1968
legislature also continued funding the notorious Sovereignty Commission
9
Although Mississippi slowly abandoned outright suppression for subterfuge,
sober observers saw through the ruse:
. . . it would be naive to believe that the naturally foreseeable consequences
of a statute commanding at-large elections for all aldermanic offices, and
then only by a majority vote, would be anything other than to make more
difficult the election of blacks to those offices. The legislative history, the
inevitable and foreseeable effect of the statute’s provisions, and the
historical context in which the Act was passed permit no other conclusion.
Stewart v. Waller, 404 F. Supp. at 214.
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suggesting it still had an interest in investigating individuals and
organizations that challenged the racial status quo. See 1968 Miss. Laws
H.B. 1195.
If 1968 is the relevant inquiry, and the Mississippi legislature’s, not
the people’s, intent is relevant to determining discriminatory intent, then
there is a factual dispute that requires reversal of the grant of summary
judgment to the State.
3. Mississippi’s Response to Federal Oversight
The majority relies on Mississippi allegedly responding to the Civil
Rights Commission’s report on its voting practices to support its threadbare
conclusion that the Mississippi legislature acted race neutrally in proposing
the 1968 amendment. See ante, at 20. This reliance is misplaced because a
review of the Mississippi legislature’s actions during the relevant time period
reveals a different picture of how Mississippi responds to “outside
agitators.”
True to its familiar history, Mississippi does not yield to outside
pressure. At the turn of the 20th Century, Mississippi quickly retreated from
Reconstruction ideals. Instead, it embraced the establishment of Jim Crow
and Black disenfranchisement. At this same time, Mississippi established its
dual school system, segregating schools by race. The history of this system is
all too familiar and ultimately led to immense disparities in the education
system. Mississippi did all it could to embody living proof that “separate” is
not equal. Although Brown v. Board of Education appeared to put an end to
school segregation in 1954, Mississippians resisted efforts to desegregate and
appealed to the legislature to find ways around it. 10 See Charles C.
10
And “[a]t a special session of the legislature called in November 1953 to deal with
the educational budget, the Mississippi House passed a constitutional amendment
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Bolton, The Hardest Deal of All: The Battle Over
School Integration in Mississippi, 1870–1980 65–66 (2005).
In the decade after Brown, Mississippi made almost no progress on the
desegregation front. Mississippi’s leaders largely ignored Brown and took no
affirmative steps to dismantle its segregated school system in response.
Rather, Mississippi adopted an “equalization” plan to improve Black schools
in the hopes of convincing Black Mississippians that the status quo of
segregated schools was best for everyone. See id. at 77.
Only in 1964 did the state see its first signs of desegregation. This
came at a time when the state was still unwilling to cede an inch to federal
oversight on desegregation. But due to an increase in desegregation lawsuits,
the governor called the legislature into a special session to craft measures to
blunt the impact of any forthcoming desegregation orders. See id. at 105.
During this 1964 special session, the legislature drafted laws to separate
students by sex and to award tuition grants for students to attend private
schools. See, e.g., Student Grants Set In Mississippi; Legislature Votes Escape
Hatch on Integration, N.Y. Times (July 16, 1964),
http://tinyurl.com/2s42u6bp. The bill to separate the sexes was premised on
the continuing fear of miscegenation. See Miss. Legislature Report (June
1964) (“Many lawmakers say privately they feel there would be less danger
from integration if white girls were not forced to go to school with Negro
boys.”); Bolton, supra, at 105. The bill on tuition grants was premised on
creating a system of publicly funded yet “private” schools for white students
permitting the abolition of the public school system if the U.S. Supreme Court required
desegregation.” Dittmer, supra, at 36. For Mississippi whites, Brown served as a “wake-
up call, and preserving the southern way of life soon assumed all the trappings of a holy
crusade.” Id. at 41.
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only. See id. These proposals were explicitly intended to avoid integration.
See id.
Then Mississippi adopted its “freedom of choice” plan to
“desegregate.” Despite the plan’s label as a desegregation tactic, freedom of
choice allowed Mississippi segregationists “to bend their devotion to racial
segregation just enough to satisfy federal laws and black demands while
preserving as much of their dual school system as possible.” Id. at 117. And
as the federal government began actively enforcing compliance with the
Brown mandate and other desegregation initiatives, Mississippi intensely
resisted.
In response to Title VI of the Civil Rights Act of 1964, which
prohibited racial discrimination in any program that received federal funding
and required school districts to submit desegregation plans, Mississippi
school districts largely committed to the freedom of choice plan. See id. at
117. The federal government quickly realized this plan was a farce and
continued to submit stringent guidelines for compliance with desegregation
requirements. See id. at 119, 121. But even so, the federal government often
gave Mississippi leaders leeway on these stringent requirements or
Mississippi found ways to undermine them. See id. at 125, 127.
While Mississippi was “complying” with desegregation demands, its
legislature was passing laws designed to suppress Black students’ enrollment
in white schools. In 1965, the legislature passed a law that mandated a
nonresident tuition fee for school enrollment. Of the children affected by the
law, 85% were Black. 11 See Gene Roberts, Mississippi Law Bars Hundreds from
Schools, N.Y. Times (Sept. 11, 1965), http://tinyurl.com/2p8zfhkk.
11
This law was repealed the following year after civil rights attorneys threatened a
lawsuit over the tuition measure.
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In 1966, the Civil Rights Commission issued a report on the status of
desegregation in the Southern states for 1965 and 1966. See Survey of School
Desegregation in the Southern and Border States 1965–66, A Report of the
United States Commission for Civil Rights (1966). In that report, Mississippi
was mentioned numerous times for being out of compliance while touting
freedom of choice plans. The report stated freedom of choice did not work
due, in large part, to white Mississippians’ intimidation and harassment of
Black Mississippians. See id. at 35–42. Mississippi was called out, again and
again, for its opposition to desegregation displayed through violence,
sometimes including Klan violence, against Black students wishing to attend
white schools. And importantly, the report notes state and local leaders’
refusal to intervene or punish such cruel and racist conduct. See id. at 35
(discussing Webster County and instances of Klan gatherings, cross
burnings, and gun violence after a freedom of choice plan was adopted); id.
at 37 (discussing the Klan threats to parents, students, and the
superintendents, cross burnings, and violence in Calhoun, Madison, and
Scott Counties). This report issued new guidelines to ensure compliance
with desegregation initiatives, but they did little to advance the cause in
Mississippi.
This court and the Supreme Court would go on to question the
efficacy behind freedom of choice and whether the plan was just a paper tiger.
See United States v. Jefferson Cnty. Bd. of Educ., 372 F.2d 836, 888–89 (5th
Cir. 1966), on reh’g, 380 F.2d 385 (5th Cir. 1967) (“[Freedom of choice] is
better suited than any other to preserve the essentials of the dual school
system while giving paper compliance with the duty to desegregate.”); Green
v. Cnty. Sch. Bd. of New Kent Cnty., 391 U.S. 430, 440 (1968). Yet these
decisions did not scare Mississippi into compliance. In fact, the state
maintained its freedom of choice plan despite its ineffectiveness (and court
orders saying so). So another federal court decision would direct Mississippi
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to begin serious desegregation efforts. See, e.g., United States v. Hinds Cnty.
Sch. Bd., 417 F.2d 852, 856 (5th Cir.), supplemented, 423 F.2d 1264 (5th Cir.
1969). In as late as 1969, in the face of criticism from a civil rights commission
and the federal courts hovering over its desegregation efforts, Mississippi was
in no hurry to comply. 12 “In actual operation, freedom of choice was just
another effective manifestation of [Mississippi’s] massive resistance.”
Bolton, supra, at 140. The resistance was none other than racially
motivated.
At the end of the decade, the Supreme Court finally said enough is
enough. In Alexander v. Holmes County Board of Education, Mississippi was
told that the time (15 years) for “all deliberate speed” was over. 396 U.S. 19
(1969). Mississippi school districts were ordered to desegregate by the end of
the year. See id. While this decision moved integration along, it still did little
to stamp out the continued presence of white supremacy, and its thrust
behind Mississippi leaders’ and the public’s ongoing resistance to
desegregation.
In 1969 in Tunica County, for instance, in the face of impending court-
ordered integration, white flight ensued, school leaders directed white
students to take their books home over the holiday break to use at whatever
private institution they would inevitably attend, and white seniors were
declared complete with their studies and graduated a semester early to avoid
attending a desegregated school. See Bolton, supra, at 167–8. White
teachers who were assigned to formerly Black schools were permitted to
12
Mississippi leaders pressured the new Nixon administration to delay
implementation of a Fifth Circuit decision requiring integration by the fall of 1969. See
Stennis Linked to Desegregation Delay, N.Y. Times (Sept. 19, 1969). The delay was
approved by the courts but whatever the reason, it was clear that Mississippi’s resistance
to integration, and creative tactics to avoid it, was still prominent in 1969. See Where Jim
Crow is Alive and Well, Time (Sept. 19, 1969).
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resign but were still compensated through the end of the 1969–70 school year.
See id. at 168. Many white students attended church schools whose teachers
were the same ones who had resigned from public schools and retained their
salaries. See id. (citing Tr. of hearing in United States v. Tunica Cnty. Sch. Bd.,
Nos. 6718, 7013 (N.D. Miss. May 21, 1970)). In 1970, many white
Mississippians viewed Black people as so inferior that they placed their
students in makeshift private schools or in no school at all. See id. The Tunica
County superintendent and school board president each gave insight on their
thoughts about Black people in early 1970, stating “whites did not want their
children going to school with black children,” and “black teachers were not
qualified to teach white children,” respectively. Id.
After Alexander, Mississippi leaders relied on the same old tactics to
avoid desegregation. The white private school movement renewed its steam.
From 1966 to 1970, the number of private schools rose from 161 to 236
schools, 61 of which arose in the year after Alexander. See id. at 173. State
officials tried to aid the movement and proposed several measures to promote
the private school system. The legislature revived the private school tuition
grants as “loans” in 1969—a practice that a federal court declared invalid
just earlier that same year. See id. at 175; Coffey v. State Educ. Fin. Comm’n,
296 F. Supp. 1389, 1392 (S.D. Miss. 1969). This measure would show up
again in 1970. Bolton, supra, at 175. No one concealed the use of public
funds to support a private white education. See Bolton, supra, at 173–75.
Some school districts responded to Alexander by adopting sex
segregation plans as they did in the early 1960s. See, e.g., United States v.
Carroll Cnty. Bd. of Educ., Civil No. GC 6541-K (N.D. Miss. 1969);
Bolton, supra, at 180. These plans, again, were expressly adopted with race
in mind—the superintendent in Carroll County testified the sex segregation
plan was primarily designed “to keep the black teenage boys away from the
white girls.” See Bolton, supra, at 180.
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In districts where these integration evasion tactics were not used for
whatever reason, white parents just overtly protested the idea of
desegregated schools. See id. at 181. They formed the Citizens for Local
Control of Education (CLCE). Id. In January 1970, CLCE and its following
of white parents marched in downtown Hattiesburg to oppose desegregation
with Confederate flags, banners, and placards that read “Down with HEW”
and “Bury the HEW in Mississippi Mud.” 13 Id. State officials praised CLCE
for its members’ “personal courage” and “love of liberty and freedom.” See
id.; see also The End of An Era, Time (Jan. 19, 1970).
After the initial backlash from Alexander, most white Mississippians
and leaders accepted the decision as, “if not defeat, [then] at least the reality
of binding law.” The End of An Era, supra. Desegregation continued on a slow
but less hostile trajectory. 14 Issues that arose thereon were those that affected
other areas of the nation, too. See, e.g., Swann v. Charlotte-Mecklenberg Bd. of
Educ., 402 U.S. 1, 22–32 (1971). Still, school segregation in Mississippi
officially ended in 1970, a decade and a half after Brown. And Mississippi only
released its grip on school segregation, an understood symptom of white
racism, under duress. So insofar as Mississippi’s leaders and public no longer
had de jure school segregation, there is simply no evidence that the underlying
racism was also washed away by court order.
13
The U.S. Department of Health, Education, and Welfare was often referred to
as “HEW.”
14
This is not to say that all race discrimination simply fizzled away. With integrated
schools on the rise, Black students faced new challenges with teachers and peers labeling
them as inferior, regular hostilities and punishments, and the exclusion of Black leaders or
representatives on school committees and boards to assist with the new normal. See
Bolton, supra, at 193–95 (School Integration: A Pyrrhic Victory). Black teachers would
also face inequality and discrimination. See id. at 212–15. Of course, this is generally historic
evidence that Mississippians were not race neutral when it came to many aspects of life in
1970 and after. But I leave discussion of these injustices for another day.
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The takeaway from this stretch of history and siphoned social issue is
two-fold. 15 First, for as much as the majority relies on Mississippi’s response
to a report from the Civil Rights Commission, relevant historical evidence
shows that Mississippi, its legislature, state leaders, and citizens, have never
responded to outside criticism or court orders with any sort of speed or
vigilance. There is no basis to conclude the Mississippi legislature proposed
the 1968 amendment to § 241 “to eliminate several objections contained in
the then-recent findings of the Civil Rights Commission.” 16 Ante, at 20.
Second, it is doubtful that the legislature, which enacted several racially-
motivated policies for continuing the unconstitutional practice of
segregation, and the electorate, made up of a vast majority of white voters
who opposed treating Black Mississippians as equals for educational
purposes and engaged in violence and harassment of Black children and
parents dating well into the late 1960s, acted neutrally regarding race when
voting on the § 241 amendment in 1968. Contrary to the majority’s
conclusion that “as a matter of law, plaintiffs have not demonstrated that
Section 241 as it currently stands was motivated by discriminatory intent,”
ante, at 20, there is at least a fact dispute on whether the 1968 legislature and
15
I should be clear that education and voting issues are not isolated or discrete
social issues. One all-too-common example of the crossover occurred when a Black school
principal, Eddie Lucas, participated in voter registration drives and worked on a campaign
for the first Black supervisor in Bolivar County. In 1967, the Sovereignty Commission
investigated his activities and by the end of the school year, Lucas’s contract was not
renewed. See Bolton, supra, at 163.
16
The majority also relies on a statement in the legislative record to show that the
Mississippi legislature acted “to delete certain improper parts of the section.” Ante, at 5.
Interestingly enough, the 1968 amendment did not delete anything from the list of crimes in
§ 241. It added rape and murder. So to the extent this statement is relevant, it says nothing
about the intent behind the addition of crimes to the already-discriminatory list of crimes in
§ 241.
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electorate acted with discriminatory intent, which requires reversal of the
grant of summary judgment for the State.
Here is the bottom line: Mississippi defied a constitutional amendment
for nearly a century. It resisted a landmark Supreme Court order for 20 years.
It ignored sweeping federal legislation for almost a decade. And the majority
today opines that Mississippi wasted no time in responding to an advisory
commission’s report! Inconceivable.
C.
Plaintiffs have met their burden on discriminatory intent behind
§ 241. That is, in summary, that the 1890 enactment was indisputably
enacted with discriminatory intent and if 1968 matters, Plaintiffs have
sufficiently created a fact issue on discriminatory intent based on relevant
historical evidence. The burden has therefore shifted to the State to prove
the provision “would have resulted had the impermissible purpose not been
considered.” Hunter, 471 U.S. at 225 (citation omitted). I would conclude
that the State cannot meet this burden and § 241’s original eight crimes
should be struck down as unconstitutional.
1. Section 241 would not have been enacted without the
consideration of race
The State cannot meet its burden to demonstrate that § 241 would
have been enacted, or the eight original crimes would have been selected,
without racial discrimination as a factor. See Hunter, 471 U.S. at 228 (citing
Mt. Healthy, 429 U.S. at 287). That is because in my view, the State’s burden
is confined to demonstrating the actual enactment of § 241 would have
occurred absent the consideration of race—which occurred in 1890.
Hunter makes clear that the State’s burden is “to demonstrate that
the law would have been enacted without [an impermissible] factor.” 471
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U.S. at 228. This can only mean whether the law would have been enacted,
at the only time that it was enacted. I discern no reason to conclude it may be
analyzed outside of the timeframe of the original enactment. See ante, at 21
(stating without authority that “[l]ater events . . . are not irrelevant to
demonstrating intent). And there has been no enactment since 1890. 17
The relevant question is therefore whether the law that was actually
enacted, i.e., § 241 in 1890, would have been enacted at that time without the
consideration of racial discrimination. See Mt. Healthy, 429 U.S. at 287
(stating defendant had burden to show that it would have reached the same
decision, to not rehire the plaintiff, absent consideration of impermissible
motive); City of South Miami v. DeSantis, 561 F. Supp. 3d 1211, 1283–84 (S.D.
Fla. 2021) (concluding evidence of legislative action before the relevant
enactment was irrelevant to the defenders’ burden at Hunter step two); cf. N.
Miss. Commc’ns, Inc. v. Jones, 951 F.2d 652, 656–57 (5th Cir. 1992)
(explaining the relevant timeframe for analyzing the defenders’ burden is “at
the time of the decision”); City of Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 464–54 n.17 (1985) (Marshall, J. concurring in the judgment in part and
dissenting in part) (“[L]aws originally motivated by a discriminatory purpose
continue to violate the Equal Protection Clause, even if they would be
permissible were they reenacted without a discriminatory motive.” (citing
Hunter, 471 U.S. at 223) (emphasis added)). The answer is a resounding no.
17
The State and majority contend the question is whether the law “would have
been enacted in its current form absent the consideration of race.” Ante, at 21 (emphasis
added). But that is not what Hunter says. Hunter says the question is whether the law would
have been enacted without consideration of the impermissible factor. 471 U.S. at 228. This
language suggests the question is not whether the same law enacted for racially
discriminatory reasons could, in some hypothetical universe or later period of time, i.e.,
1986, be enacted absent the consideration of race. The question is whether the law that
exists would have been enacted in the same way at the same time without the purpose of
discrimination.
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And notably, the State has not identified any nondiscriminatory reason to
support its selection of the otherwise random list of crimes that result in
disenfranchisement.
Section 241’s “original enactment was motivated by a desire to
discriminate against blacks on account of race. . . .” Hunter, 471 U.S. at 233.
The State has failed to meet its burden to show it would have been enacted
absent the consideration of race. “As such, it violates equal protection . . . .”
Id. It follows that the eight crimes selected in 1890 and that remain in § 241
today must be struck down as unconstitutional. I would accordingly reverse
the grant of summary judgment to the State and grant summary judgment in
favor of Plaintiffs.
2. There is, at a minimum, a triable issue on the State’s
burden
Notwithstanding my conclusion above, there is undoubtedly sufficient
evidence to reverse the grant of summary judgment to the State and remand
for factfinding. The State attempts to establish “as a matter of law” that
§ 241 would have been enacted without consideration of race in 1986, by
relying on evidence of legislative inaction. As explained, I see no reason why
evidence of action or intent outside of 1890, legislative inaction or otherwise,
is relevant to understanding whether § 241 would have been enacted or
“reenacted” in 1968 or 1986, ante, at 21, absent the consideration of race. But
even if evidence of later legislative inaction is relevant to the State’s burden,
we must recognize that understanding motivation behind historical laws is a
complex issue, particularly so in the context of which § 241 has operated—
in Mississippi through a deeply rooted and concerning history.
And if we do consider the State’s evidence of legislative inaction from
the 1980s, that evidence still reveals nothing about the electorate or whether
the people would have enacted a provision without the consideration of race.
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See supra III.A (“[O]nly the people, through a direct exercise of popular
sovereignty, can amend a constitution, and it follows that only the people can
cleanse a racist constitutional provision of its discriminatory intent.”). So
when looking at the motives of the people, history shows there is still, at a
minimum, a factual dispute as to whether a law like § 241 would be enacted
without consideration of race in 1968, or as recently as this century.
The noxious motives and racist animus from 1890 have disintegrated
over time, but they have not disappeared. A simple glance at Mississippi’s
notorious history from the last two decades confirms this. As recently as
2001, Mississippians voted overwhelmingly, in a nearly 2-1 margin, to retain
the state flag that bore the Confederate emblem.
In 1894, just four years after the disenfranchisement of virtually all
Black Mississippians, the Mississippi legislature adopted a flag with a canton
that contained the Confederate Battle emblem. At the time, there was no
ambiguity—the emblem was a means of demonstrating power, it sent the
message to powerless Black Mississippians that white men are dominant.
The all-white legislature, with the recommendation of the governor, adopted
the intimidating symbol without much attention, and informed the public
through a single sentence in a newspaper. That sentence did not describe the
design or the symbolism it embodied. See Stephanie R. Rolph, The History of
Mississippi’s State Flag, Miss. History Now (Feb. 2013). But no doubt,
the flag was rooted in upholding Confederate ideology in the end of the
Reconstruction. Particularly, the governor at the time sought to repeal laws
that permitted Black male voting, calling those laws “a menace to the
South.” Id. Ultimately, the flag’s connection to—or rather embracement
of—slavery and racial oppression could never be denied.
That flag would go on to fly above Mississippi government buildings
and public places for 126 years. Over that time, the symbolism of that flag
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endured. And day after day, Black Mississippians saw it at their schools, at
their jobs, at their parks. It might even show up in their neighbors’ front
yards. Knowing what the flag meant and what it stood for, Mississippi’s
adherence to the flag was more than odd. It was a subtle yet overt inaction
that kept Black Mississippians intimidated as long as it waved in the wind.
Efforts to change the flag would come. They would go. Lawsuits
would fail. Legislative bills would dissolve. 18 Other states would change.
Mississippi would not. Any effort to change the flag would be blocked or
derided. Defenders would insist the flag had nothing to do with race. Others
would disagree. So would history.
After Georgia shed some of its Confederate imagery in 2001, there was
a possibility that Mississippi would do the same. 19 Mississippi then
conducted a statewide special election to let the voters decide. 20 See 2001
Miss. Laws, HB No. 524. In the two months before the election, defense
of the 1894 flag and its Confederate origins was rampant. Although Black and
white proponents of change spoke out about the flag’s undeniable connection
to slavery, the Jim Crow era, and the coded emblem of racism, the voters
18
Mississippi Representative Aaron Henry introduced bills to remove the
Confederate emblem in 1988, 1990, 1992, and 1993. None of which made it to the House
floor for a vote. See Constance Curry, Aaron Henry: A Civil Rights Leader of the 20th
Century, Miss. History Now (Feb. 2011).
19
For completeness, I also note that this change was prompted in part by the
Mississippi Supreme Court’s determination that there was no official state flag because
lawmakers inadvertently failed to add it to the state code in 1906. See Miss. Div. of United
Sons of Confederate Veterans v. Miss. State Conf. of NAACP Branches, 774 So. 2d 388, 391
(Miss. 2000) (concluding use of the flag was by custom only and permitting State to
continue its usage).
20
Notably, the legislature would have voted to keep the flag.
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were not inclined to reconcile this troubled past. By a vote of 64.4%,
Mississippi voters decided to keep the 1894 flag. 21 And so the flag stayed.
The failed referendum revealed a harsh truth: a majority of
Mississippi voters decided against righting the wrongs of the 1894
Mississippi legislature. This was just 21 years ago.
Holding onto the Confederate legacy did not continue quietly. In June
2015, a white gunman with an affinity for the Confederate flag massacred nine
Black church members at worship services in Charleston, South Carolina.
Although many towns and counties began removing the 1894 flag in response
to this tragedy, and South Carolina decided it had gone long enough waving
the flag above its capitol, official change remained elusive in Mississippi. At
the start of the legislative session the following January, 19 new bills related
to the flag were on the agenda. By the end of the month, all were dead.
Almost five years later, in 2020, the high-profile deaths of Black
Americans across the nation prompted a renewed call for change. The
national conversation about racism was at its peak. And Mississippi’s
continued endorsement of the Confederate emblem was unsurprisingly
magnified. Only after facing insurmountable pressure and recognizing the
pain Confederate symbolism causes nearly half its population, did the 1894
flag get appropriately retired to a museum. Without consulting the voters,
and for the first time with all deliberate speed, the Mississippi legislature
voted to remove the 1894 flag and create a commission to design a new state
flag. See 2020 Miss. Laws, HB No. 1796.
Even after this monumental step, in which Mississippi was forced to
reckon with its past, more than vestiges of that past remain. Since then, year
21
The outcome ran along racial lines with the percentage of eligible white voters at
the time being 64.8%.
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after year without fail, the State recognizes and declares April as Confederate
Heritage Month. Mississippi is the only state to devote an entire month
towards the Confederacy—whose position was “thoroughly identified with
the institution of slavery—the greatest material interest of the world.” An
Address: Setting Forth the Declaration of the
Immediate Causes which Induce and Justify the
Secession of Mississippi from the Federal Union and the
Ordinance of Secession (1861). And every January, on the day the
rest of the nation celebrates the life of Dr. King, Mississippi celebrates the
life and work of Robert E. Lee.
My point is this: in 2001, Mississippi voters’ interest in racial
reconciliation was not strong enough to compel a vote to remove the most
pervasive and recognizable symbol of slavery, oppression, and Jim Crow.
Consideration of recent history raises profound doubt whether the 1968
Mississippi legislature or voters acted (or could have acted) neutrally
regarding race, i.e., enacted § 241 or selected the original eight crimes absent
the consideration of race. And even more so suggests the 1968 Mississippi
legislature, responsible for its fair share of passing discriminatory laws, is in
no way entitled to the presumption of good faith. Perez, 138 S. Ct. at 2324
(stating the good faith of the legislature must be presumed but the ultimate
question is whether there is discriminatory intent). So, in my view, historical
evidence alone creates a dispute on whether the 1968 amendment would have
passed absent the consideration of race. This fact dispute requires the
reversal of summary judgment for the State and a remand for factfinding on
this issue.
IV.
Recounting Mississippi’s history forces me to relive my experiences
growing up in the Jim Crow era. While I do not rely on those experiences in
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deciding this case, I would be less than candid if I did not admit that I recall
them. Vividly.
So, I confess that I remember in 1963 a cross was burned on my
grandmother’s lawn, two doors down from where I grew up.
In December of 1969, I left my all-Black high school for Christmas
break. It was after the Alexander decision where the Supreme Court declared
Mississippi could no longer delay desegregation. As a result, I returned to my
“desegregated” high school in January of 1970. I was disheartened. Many of
the best Black teachers at my high school had been transferred to a
predominantly white school and many of the worst white teachers had been
transferred to my school. Not a single white student enrolled at my school.
In 1991, I was appointed to serve as a state trial judge. Undoubtedly,
my appointment was evidence of progress in the struggle for racial equality
in Mississippi. But in the courtroom where I sat, the bench was flanked on
one side by the United States flag and on the other side by the Mississippi
flag and its Confederate emblem. My inclination was to ceremoniously
remove it from the courtroom. But there were others who were working to
change the flag. They assured me that change was imminent. They were
wrong.
Ten years later I was appointed to serve on the Mississippi Supreme
Court. There, the 1894 flag flew above the court, flanked the bench, and
nestled in my chambers. And ten years later, when I began my service on this
court, there again was the ever-present reminder of Mississippi’s sordid
history. It is a testament to the greatness of this country and state that I have
been selected to serve in the judicial branch of government. But no matter
where I went, the 1894 flag was already there—a haunting reminder that a
wrong never righted touches us all.
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I recount these events, as a native Mississippian, only to highlight the
importance of making the right decision in this case.
V.
Harness and Karriem are Black Mississippians who are
disenfranchised and deprived of a right that is the cornerstone of our
democracy. They are deprived of that right because of § 241—a
constitutional provision enacted for the purpose of discriminating against
them and their ancestors on the basis of their race. Eight of the crimes
selected in 1890 and that remain in § 241 today, including the two crimes that
disenfranchise Plaintiffs, were selected with a discriminatory purpose. They
were selected by a racist and nearly all-white legislature and approved by a
racist and nearly all-white electorate to oppress Black Mississippians. Since
then, Mississippi voters have not spoken on those eight crimes. They have
not voted on or applied their intentions to those crimes. 22 So the
discriminatory taint behind those eight crimes has lingered for over a century
and still stands today. Because Cotton wrongly decided this issue, I would
overrule it.
The burden has therefore shifted to the State to demonstrate § 241
would have been enacted in 1890 absent the consideration of race. It is
undisputed that the State has not and cannot meet this burden. Section 241,
and its eight original crimes from 1890, therefore violate the Equal Protection
Clause. I would accordingly strike down the original eight crimes as
unconstitutional and grant summary judgment to Plaintiffs.
22
It is sadly ironic that although Mississippi and this court agree that § 241 was
unconstitutionally adopted in 1890, they rely on votes governed by that provision—one
that disproportionately disenfranchises Black Mississippians—to conclude that § 241 has
been reenacted without a discriminatory purpose.
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Alternatively, if 1890 no longer matters and § 241 was “reenacted” in
1968, the relevant historical evidence shows there are fact disputes on
whether Mississippi’s legislature and voters during the 1960s acted with
discriminatory intent in amending § 241. The same historical evidence and
fact disputes show the State has not met its burden at the summary judgment
stage to demonstrate the same crimes would have been selected for § 241
absent the consideration of race. This allows Harness and Karriem to survive
summary judgment. I would therefore, at a minimum, reverse the district
court’s grant of summary judgment to the State and remand for factfinding
consistent with the Supreme Court’s unanimous decision in Hunter.
It is worth noting that § 241 stands virtually alone in its endurance
against courts acting as protectors of constitutional rights. Mississippi’s
other facially neutral but invidiously motivated laws and constitutional
provisions have almost all been invalidated or superseded. 23 Each of these
23
These include: (i) § 241’s two-year residency requirement, see Graham v. Waller,
343 F. Supp. 1, 3 (S.D. Miss. 1972); (ii) §§ 241 and 243’s requirement of payment of a poll
tax and disenfranchisement of those who failed to pay it or prove that they paid it, see Harper
v. Va. State Bd. of Elections, 383 U.S. 663, 666 (1966); see also Kirk H. Porter, A
History of Suffrage in the United States 209 (Greenwood Press Reprint
1977) (1918) (“It is impossible to tell the number of Negroes who are unable to vote in spite
of the fact that their tax has been paid, simply because he does not save the receipts. The
white man is seldom asked to exhibit his receipt, although of course he could be.”);
(iii) § 249’s requirement that electors be registered and swear an oath before a state
election official, see United States v. Mississippi, 256 F. Supp. 344, 347 (S.D. Miss. 1966);
(iv) § 241-A, added in 1960, which required “good moral character” of all electors, see
South Carolina v. Katzenbach, 383 U.S. 301, 333–34 (1966); (v) § 244, which imposed
literacy tests; (vi) § 245, which laid the groundwork for a dual registration system, one for
white, one for African Americans, see Miss. Chapter, Operation Push v. Allain, 674 F. Supp.
1245, 1269 (N.D. Miss. 1987); (vii) § 247, which provided that “the legislature shall enact
laws to secure fairness in party primary elections,” which the legislature used to enact a
law allowing primary voters to challenge Black voters’ eligibility (the Democratic Party’s
principles required support of segregation), see United States v. Mississippi, 229 F. Supp.
925, 989 (S.D. Miss. 1964) (three-judge court); United States v. Mississippi, 380 U.S. 128,
143–44 (1965); (viii) § 251’s requirement of registration at least four months prior to an
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provisions, like § 241, was enacted to maintain white supremacy in
Mississippi. But unlike § 241, these provisions were all struck down by
federal judges upholding their oath to the Constitution.
On § 241, Mississippians have simply not been given the chance to
right the wrongs of its racist origins. And this court, in failing to right its own
wrongs, deprives Mississippians of this opportunity by upholding an
unconstitutional law enacted for the purpose of discriminating against Black
Mississippians on the basis of their race.
I dissent.
election, see Ferguson v. Williams, 343 F. Supp. 654, 657 (N.D. Miss. 1972) (three-judge
court) (per curiam); and (ix) § 241’s misdemeanor disenfranchisement provision, see
McLaughlin v. City of Canton, 947 F. Supp. 954, 978 (S.D. Miss. 1995).
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