Supreme Court Denies Black Voting in Mississippi

Malik Miah

Mississippi legislature, 1890. The president of the constitutional convention commented, “We came here to exclude the Negro.” And they did.

SO MUCH FOR the “color blind” society proclaimed by the United States Supreme Court in ruling June 30 to outlaw university affirmative action policies. That same day, but under the news media and public radar, the unelected body with lifetime appointment, made its full objective crystal clear.

The Court upheld a century old Mississippi law that was explicitly written and adopted to deny Black people in the state the right to vote in the state.

The Court rejected even hearing (you need four Justices to say yes) a challenge to a constitutional amendment adopted by Mississippi that opened the racist Jim Crow era.

The Justices left in place a state constitutional provision barring certain felons (mainly Blacks) from voting. The state argued that the provision, enacted 130 years ago, is no longer tainted by the racist intentions of its original authors because it has subsequently been updated on two occasions. Yet it is still in the state Constitution.

“We came here to exclude the Negro,” said the president of the Mississippi constitutional convention. And they did.

Justice Jackson Exposes Hypocrisy

The Court’s decision not to hear the case, brought by those seeking to officially overturn that clause, prompted a sharp dissenting opinion from the first Black woman Justice, Ketanji Brown Jackson, joined by fellow liberal Justice Sonia Sotomayor, the first Latina on the Court.

Jackson contrasted the decision with the conservatives’ ban of affirmative action that said race could no longer be a factor in college admissions.

If the court viewed affirmative action as race discrimination, she said, then the Mississippi measure must be seen similarly.

“So, at the same time that the Court undertakes to slay other giants, Mississippians can only hope they will not have to wait another century for another judicial knight-errant,” she wrote. “Constitutional wrongs do not right themselves.”

1890 Opens Jim Crow ERA

The measure was first enacted in 1890 at a time when whites in the Deep South were fighting back against post-Civil War efforts to ensure formerly enslaved Black people had equal rights.

The crimes listed then included bribery, theft, carjacking, bigamy and timber larceny. They have remained largely the same since then. Mississippi voters amended it to remove burglary in 1950, and added murder and rape in 1968.

The specific aim of the amendment to the state Constitution was to disproportionately prevent Black people from voting, by removing voting rights from felons convicted of what were thought to be “Black crimes” and declining to do the same for “white crimes.”

It worked in convicting innocent Black people. It led to keeping people freed from slavery as second class to whites — enabling the total segregation of Black people in the southern states.

So-called “separate but equal” laws were passed. Black people lived separately, including determining where they could get medical care and education. The state’s resources went disproportionately to whites. as is still the case in Mississippi — and most states.

Voting Rights Rarely Regained

Today, those convicted of any of 23 specific felonies in Mississippi permanently lose the right to vote. It continues to have a staggering effect — 16% of the Black voting-age population remains blocked from casting a ballot, as well as 10% of the overall voting age population, according to an estimate by The Sentencing Project, a criminal justice nonprofit.

The state is about 38% Black, but Black people make up more than half of Mississippi’s disenfranchised population.

Once a person loses their right to vote in the state, it is essentially impossible to get it back. To do so, a disenfranchised person must get the legislature to approve an individualized bill on their behalf by a supermajority in both chambers, then have the governor approve the bill.

There are no online instructions or applications, and lawmakers can reject or deny an application for any reason.

It is rare that anyone successfully makes it through the process. Between 1997 and 2022, an average of seven people successfully made it through the process each year, according to Blake Feldman, a criminal justice researcher in Mississippi.

Both a federal district judge and the U.S. Court of Appeals for the Fifth Circuit upheld Mississippi’s policy. The modifications to the policy in 1950 and 1968, the Fifth Circuit court claimed, got rid of any discrimination in the original policy.

In 1974 the Supreme Court upheld that states could bar voting rights to those convicted of felonies. Since no Justice wrote a reason for not hearing the Mississippi appeal, it is assumed they saw it fitting alongside its earlier stance.

Justices Jackson and Sotomayor were the only two justices who declared their dissent from the denial. Jackson’s opinion stated that the Fifth Circuit had committed “two egregious analytical errors that ought to be corrected.”

Once again, the court’s six far-right majority refusal to take the Mississippi case shows that their decision was political, not based on the Constitution — the basic democratic rights of Black people be damned.

September-October 2023, ATC 226

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