NEW ORLEANS (CN) — In a case that could affect thousands of people, the en banc Fifth Circuit heard arguments Wednesday in a lawsuit seeking to overturn Mississippi’s ban on voting for people convicted of some felonies.
In 1890, during the Jim Crow era, Mississippi enacted an amendment to the state constitution under which conviction of certain crimes stripped a person of their voting rights forever, including theft, forgery, arson and bigamy.
Those offenses were included in the law “with the express purpose of disenfranchising African Americans,” an attorney representing those who oppose the rule told judges Wednesday.
“There’s no doubt that race discrimination was a motivating factor,” said Donald B. Verrilli, a former solicitor general in the Obama administration who argued on behalf of two Black Mississippians who lost their right to vote.
Verrilli said that citizens were never given the opportunity to vote for or against the original eight disenfranchising crimes, which also include bribery, obtaining money or goods under a false pretext, perjury, embezzlement and burglary.
The crimes were put into the constitution with the intent of limiting the voting power of Black residents, making the provision “unconstitutional and therefore invalid from the moment it was adopted,” Verrilli said.
Some of the judges appeared skeptical of Verrilli’s arguments.
U.S. Circuit Judge Stuart Kyle Duncan, a Trump appointee, pointed out that forgery, for instance, had been put into the Constitution as a disenfranchising crime in 1870, rather than 1890. Duncan questioned how the inclusion of forgery could “be motivated by slavery if it’s been there since 1870.," just after the first Jim Crow laws went into effect in 1865.
Duncan went onto say that the whole theory behind the specified crimes — that Blacks commit “furtive” crimes, while the crimes of whites are “robust” — “sounds like a crackpot, racist theory.” He also said that at least by today’s statistics, the original eight disenfranchising crimes are not specifically committed by Black people.
“Let’s look at one of the crimes, embezzlement, for instance,” Duncan said. “Modern day stats say embezzlement is 50-50” between white and Black offenders.
Murder, on the other hand — which was not one of the original eight disqualifying offenses but was finally added in, alongside rape, by a 1968 amendment — is committed 70% of the time by Blacks and 30% by whites, Duncan said, citing statistics.
Verrilli said disenfranchising crimes need to be decided upon by voters to make them truly constitutional.
“I guess you don’t believe that the logic of the law is experience,” replied U.S. Circuit Judge Edith H. Jones, a Reagan appointee.
Thirty-three minutes into an allocated 30-minute argument, Verrilli was replying to a comment from U.S. Circuit Judge James C. Ho, who appeared to acknowledge that Mississippi voters never had the chance to vote for or against the eight crimes, when Jones made another sharp comment to the attorney.
“Maybe the question is whether you’ve gone way over your time," the judge said.
Attorney Justin Metheny argued on behalf of Mississippi Attorney General Lynn Fitch. He argued that the original eight disenfranchising offenses should be upheld and said the provision that disenfranchises people convicted of certain felonies is constitutional.
In Mississippi, 235,150 people, or 10.6% of the state’s voting age population, have lost their right to vote, according to statistics from The Sentencing Project. That includes 130,500 Black Mississippians — almost 16% of the Black voting age population.
Mississippi keeps a higher percentage of its residents from voting because of felony convictions than any other state in the country, up from second place in 2016, and is one of just 10 states where voting rights are not automatically restored after people serve their time or complete parole or probation for felony convictions.
The lawsuit that was the basis of Wednesday’s hearing was filed in 2017 on behalf of Roy Harness, who was convicted of forgery in 1986.
Members of the court pointed out to Matheny that the state constitution had a provision that prevented Blacks from owning guns, which is a clear constitutional violation. He was asked if such a law would be constitutional if the language was in a general law rather than the state constitution.
“Perhaps not in that hypothetical,” Matheny said.
He was asked why other crimes that would be deemed more serious because they carry longer sentences, such as child exploitation, kidnapping and drive-by shootings, were not made disenfranchising, while nonviolent crimes like bigamy and forgery were.
“Well, I existed in the 1950s and bigamy was thought to be very, very bad," Jones interjected.
Under the original language of the Mississippi Constitution, a person convicted of stealing cattle could lose the right to vote, while those who were convicted of murder or rape could still cast a ballot — even from prison.
The lawsuit does not seek to overturn the voting ban added in 1968 for murder or rape. It only challenges the original eight specified crimes.
A three-judge panel of the Fifth Circuit rejected the lawsuit in February, but the case was revived when the full court agreed to rehear it. Wednesday's oral arguments were held via video conference.
It is not clear when or how the en banc court will rule.
Bills to automatically restore voting rights to felons at some point after serving their sentences are introduced most years in the Mississippi Legislature but so far none have passed.
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