The Supreme Court is seen from East Front of the Capitol in Washington, D.C., on Wednesday, May 3, 2023.
The Supreme Court on Friday declined to hear a challenge next term to a Mississippi Constitutional provision that prohibits certain felons from voting.
Passed during the Jim Crow-era to disenfranchise Black voters, the provision’s racist origins are undisputed. But a lower court ruled that discriminatory intent was cleansed by two amendments passed decades later.
Roy Harness and Kamal Karriem, whose forgery and embezzlement convictions, respectively, prevent them from voting under the provision, appealed the decision to the justices in a request backed by the NAACP Legal Defense Fund and the American Civil Liberties Union.
In a brief, unsigned order, the justices declined to take up the dispute to decide whether the provision violates the Fourteenth Amendment’s Equal Protection Clause. That means the current law will remain in place.
Liberal Justice Ketanji Brown Jackson, joined by fellow liberal Justice Sonia Sotomayor, publicly dissented from the order, noting that the court had similarly declined to take up the issue 125 years ago.
“And this Court blinks again today. So, at the same time that the Court undertakes to slay other giants, Mississippians can only hope that they will not have to wait another century for a judicial knight-errant. Constitutional wrongs do not right themselves. With its failure to take action, the Court has missed yet another opportunity to learn from its mistakes.”
The original 1890 law prevented people from voting who were convicted of nine crimes, all selected because of a belief that Black voters were more likely to commit them.
Sixty years later, Mississippi voters dropped burglary from the list but in 1968 added murder and rape.
Harness and Karriem had cited a decades-old, unanimous Supreme Court decision that struck down a similar disenfranchisement provision in the Alabama Constitution. In that case, the court ruled laws are inherently unequal if they were enacted with the intent of discriminating against Black voters.
The duo contended the same argument applies to the eight original crimes that remain in Mississippi’s provision, which was enacted 11 years earlier. The remaining crimes comprise bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement and bigamy.
But the 5th U.S. Circuit Court of Appeals ruled in favor of the GOP-led Magnolia state, finding that Mississippi voters purged the provision’s racist taint when they passed the two amendments. The court further ruled the present-day version would have been passed in its current form without racial motivation.
“This Court has never hesitated to step in when lower courts have failed to enforce this Court’s Fourteenth Amendment precedents guaranteeing critical rights of civic participation. It should not hesitate now,” Harness and Karriem wrote in their request to the justices.
They contended the provision continues to discriminate against Black residents, noting that about half of the roughly 50,000 individuals disenfranchised between 1994 and 2017 were Black. Mississippi pushed back, arguing that the provision disenfranchises Black and white convicts at roughly the same rate.
“They cannot vote because the attendees to Mississippi’s 1890 Constitutional Convention conspired to eliminate African American voting and thereby cement white political power in the State, and because Mississippi has taken no action in the intervening years to separate the disfranchisement provision from the delegates’ invidious plan,” Harness and Karriem wrote.
Mississippi further urged the Supreme Court to not take the case, arguing it did not present a split among the nation’s federal appeals courts, a common reason the justices take up cases.
“That decision is correct, it does not implicate any circuit conflict, and this case is a poor vehicle for this Court’s intervention. The petition should be denied,” their brief continued.
Updated: 12:19 p.m.
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