This month the 5th U.S. Court of Appeals is taking up a Jim Crow law designed in 1890 to steal Black Americans’ most valuable American right. We suspect the court, swamped with judges installed by a president who tried to overthrow the American government, is not going to side with voters.
The League of Women Voters of Mississippi, Mississippi Center for Justice, One Voice, Mississippi Votes, Mississippi State Conference of the NAACP, and a host of pro-voter organizations filed an amicus brief in Hopkins v. Watson, urging the 5th US Court of Appeals to declare Mississippi’s lifetime felony disenfranchisement law—Section 241—cruel and unusual punishment in violation of the Eighth Amendment to the US Constitution. (The one that also prohibits excessive bail and fines.) Plaintiffs claim the voting ban qualifies as cruel and unusual because certain crimes like timber theft, writing bad checks, and receiving stolen goods gets victims tossed from polling booths for the rest of their lives, long after they’ve fulfilled their obligation to the justice system, done their time and paid their fines.
Mississippi is one of only two states in the union to impose such a lifetime ban, and it just happens to affect Black residents most, according to studies. (Honestly, studies affirmed what we already knew.) The Sentencing Project argues Mississippi ousts more than 8% of its adult population with Section 241, but that number balloons in the Black community, tossing 130,501 Black residents from a pool of 817,493 Black voters. That’s 15.96% of the Black population—one in every 13 people. The study even removed recidivism and death from the post-sentence pool to avoid overestimating the number of individuals in the excluded population.
Mississippi is one of only two states in the union to impose such a lifetime ban, and it just happens to affect Black residents most.
Scott Stewart, Solicitor General of Mississippi, defended Section 241 before the court, claiming Mississippi should get to keep locking a disproportionate number of Black voters from the rolls because the practice does not specifically qualify as a punishment, as plaintiffs argue.
“Voting is important, but voting is not just a right. It’s a significant responsibility,” Stewart told judges, falling back on the standard anti-democracy mantra that voting comes with strict qualifications. Later, he argued: “It’s very fair to say that the people of Mississippi don’t want to be governed by a thief. I mean, even if it’s a small amount of money. I mean, dishonest and small things. Dishonest and large is a reasonable determination.”
Stewart, a member of the Federalist Society, pointed out that voting is “the act of trying to control other people’s lives, and what the Second Amendment and what our traditions recognize from disenfranchising felons for so long is that there are certain features of character and judgment that felons … are potentially incapable of proper (judgment).”
Whole generations of segregationists and racists fought to corral Black Mississippians into a powerless second class using Stewart's same contention.
“I don’t think the n*gger ought to vote. He ain’t qualified,” said former Mississippi governor, senator, orator, and despicable racist Theodore Bilbo, who enjoyed erecting endless barriers to Black voting. “I’ll always oppose the repeal of the poll tax as provided by Section 241 of the Constitution.”
Bilbo praised Section 241. He knew it was designed to boot Black voters from the rolls. He adored the criminal disqualifications, the literacy tests and poll taxes Mississippi law imposed, so long as white voters could duck around it with the help of white election officials. There was always a way for decent white folk to get around poll taxes with the right people in charge.
“I fight the repeal of (Section 241’s) poll tax for Congress,” Bilbo continued. “Why? I know that, if the Congress ever … establishes the presence of walking into the states and cutting down the qualifications set up by the legislature, if they cut one down, they can cut another down and they’ll walk in and cut down everything that we set up and we’ll be at the mercy of a bunch of folks in Washington.”
By “qualifications” the former governor, of course meant the same “non-punishment-style restrictions” Stewart vehemently defended in court last week. Like Bilbo, the last thing Stewart wants is judges "cutting down" a "qualification" on a helpful list of deterrents.
Judge James E. Graves, one of few Black justices on the court, asked Stewart if he had any additional proof the requirements were nothing more than innocent guidelines. "Other than the placement of the list of crimes, what other evidence do you have that it wasn’t meant to be punishment?" he demanded.
“It describes qualifications of voters,” Stewart insisted. “That is not punishment. … It sets down things that are traditionally qualifications, like registration, residency, age. I mean, those are not thought to be punitive things. Those are just regulations of the franchise that are civil regulatory and non-punitive.
Stewart went on to argue Section 241 was never intended to be a punishment, not even in 1890. “… There is no evidence that would make the 1890 version punishment either, your honor,” he assured judges, while woodenly ignoring the document’s heinous intent.
Mississippi’s 1890 constitution may not have been openly designed to “punish,” but it was most definitely designed to be a brick wall. Ask the architects.
“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.” This is the proclamation of racist hack James K. Vardaman at the creation of Mississippi’s 1890 constitution, as cited by Judge Graves in 2022.
At the time, Graves was dissenting the court’s 5th Court of Appeals’ refusal to acknowledge Section 241 as inherently racist. “This is the intent behind the law the en banc court upholds today," he wrote. "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.”
His own court, sloshing with Trump, Reagan, and Bush judges, adopted the theory that white Mississippi legislators had somehow “de-crowed” the Jim Crow elements of Section 241 by including “rape” and “murder” in the list of disqualifying crimes. The U.S. Supreme Court, similarly drowned in Republican judicial appointees, let the 5th Circuit decision stand.
This is why plaintiffs were not pressing the more obvious argument that a Jim Crow law is a Jim Crow law last week. Their toolbox raided and burned, all they have left is a bland attempt to convince this same court Section 241 qualifies as cruel and unusual.
The court did not immediately drop an answer last week at the hearing but will render a decision in the future. We don’t have high hopes for any court that failed to see the evil in a document written and adored by the likes of James K. Vardaman and Theodore Bilbo, a document that still kicks a significant portion of Black voters from Mississippi polling booths.