The conservative majority of the 5th Circuit Court of Appeals voted to uphold Jim Crow this month.
The 5th Circuit Court of Appeals said a Mississippi’s Jim Crow law keeping nearly 16% of Black residents from voting should stay on the books. The court affirmed a lower court ruling keeping the state constitutional provision intact, despite the language being inserted by unabashed racists targeting Black residents for disenfranchisement.
The current provision places a lifetime ban on voting for people convicted of certain felonies and removes their most basic American right. The decision affects persons convicted of murder, rape, bribery, arson and bigamy, along with certain “money crimes” specifically aimed at historically impoverished Black Mississippians. This includes theft, obtaining money or goods under false pretense, perjury, forgery and embezzlement. These crimes included offenses such as writing bad checks, which disproportionately affected impoverished families.
A majority of the 5th Circuit argued that the distinctly Jim Crow §241 provision has been sterilized of its racism over the years. The court claims a multi-racial Election Law Reform Task Force, led by Democrat Secretary of State Dick Molpus, convened in 1984 to scrutinize the provision and decided to leave the law intact. The majority-white court also pointed out that the majority-white Mississippi legislature amended the law slightly over the years and that the tiny changes it made were precleared by the U.S. Department of Justice.
“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,” the court said. “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.”
Dissenting Judge James Graves, who is Black, vehemently disagreed with the majority. Graves said the provision, installed by bigots, can hardly be cured of its racism by minor tweaks within the last century, particularly tweaks from a notoriously racist legislature like Mississippi’s. Graves began his argument by citing the infamous words of rabid segregationist state legislator James K. Vardaman at the time of §241’s creation:
“There is no use to equivocate or lie about the matter,” Vardaman admitted more than a century ago. “… 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.”
Graves cited Vardaman’s monstrous words and pointed out that Vardaman and his cohorts created the controversial felony disenfranchisement law specifically to block Black voters.
“This is the intent behind the law the en banc court upholds today,” Graves argued. “[…]
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.”
The Mississippi legislature spent the brunt of its existence fighting to prevent democracy in Mississippi, Graves said, and he questioned the validity of any tweaks a racist institution like that might make.
Dissenting judge Jennifer Walker Elrod agreed with Graves.
“While recognizing its invidious origins, the majority concludes that subsequent amendments to §241 have cured the racial animus and legitimated […] the remaining crimes originally listed in the Mississippi Constitution of 1890. I am not so sure,” Elrod argued. “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.”
Elrod argued since Mississippians were never given the option to remove the racially tainted list of qualifiers for felony disenfranchisement or to reenact it, “the State is stuck with its discriminatory intent.”
Rob McDuff is director of the Impact Litigation Project at the Mississippi Center for Justice, which represents disenfranchised Black Mississippi residents challenging the Jim Crow law. McDuff said MCJ would be taking their argument up to the U.S. Supreme Court.
“This provision was a part of the 1890 plan to take the vote away from Black people who had attained it in the wake of the civil war,” McDuff said. “Unfortunately, the Court of Appeals is allowing it to remain in place, despite its racist origins.
Despite this setback, we will continue this battle and seek review in the U.S. Supreme Court.”
The supreme court is less likely to supply a fair hearing, however, now that it is a de facto arm of the Republican Party. For more than three decades, the GOP has labored to dilute the Black and brown vote by installing anti-democratic Republican judges on courts. The party’s success is clear in state level courts and at the U.S. Supreme Court, where conservatives now hold a 6-to-3 majority.
In March 2023, the Supreme Court refused to reconsider a Republican-gerrymandered map from the state of Kansas that deliberately watered down the Black vote in Kansas City. Republicans there took care to split the city and funnel Black voters into white districts where their Democratic votes would be invisible. The high court’s refusal to consider the new suggestions will keep the Black vote conveniently watered down for the Kansas GOP.
The public is apparently aware of the court’s new role as an adjunct of the GOP and knows the high court is deciding cases based on politics, rather than law, according to recent polls. Three quarters of Republicans approve of the high court’s behavior, but Democrats disapprove of the court’s blatant partisanship, as well as more than half the nation.