Harness v. Watson

47 F.4th 296

Roy HARNESS; Kamal Karriem, Plaintiffs—Appellants,

v.Michael WATSON, Secretary of State of Mississippi, Defendant—Appellee.

No. 19-60632

United States Court of Appeals, Fifth Circuit.

FILED August 24, 2022

Robert Bruce McDuff, Esq., Fred L. Banks, Jr., Esq., Phelps Dunbar, L.L.P., Jackson, MS, Donald B. Verrilli, Jr., Xiaonan April Hu, Attorney, Munger, Tolles & Olson, L.L.P., Washington, DC, for Plaintiffs-Appellants.

Justin Lee Matheny, Esq., Office of the Attorney General for the State of Mississippi, Jackson, MS, for Defendant-Appellee.

Jonathan K. Youngwood, Esq., Simpson, Thacher & Bartlett, L.L.P., New York, NY, Nancy Abudu, Southern Poverty Law Center, Montgomery, AL, Caren E. Short, Southern Poverty Law Center, Immigrant Justice Project, Decatur, GA, for Amici Curiae Walter Wayne Kuhn, Jr., Dennis Hopkins, Herman Parker, Jr., Byron Demond Coleman, Jon O'Neal, Earnest Willhite, individually and on behalf of a class of all others similarly situated.

Elizabeth Baker Murrill, Esq., Assistant Attorney General, Office of the Attorney General for the State of Louisiana, Baton Rouge, LA, for Amici Curiae Louisiana, Texas.

Before Richman, Chief Judge, and Jones, Smith, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson, Circuit Judges.

Per Curiam:

The issue before the en banc court is whether the current version of Miss. Const. art. 12, § 241 violates the Equal Protection Clause of the United States Constitution. This provision was upheld in Cotton v. Fordice , 157 F.3d 388 (5th Cir. 1998), which was binding on the district court and the panel decision here, but the court voted to reconsider Cotton en banc. Having done so, and with the benefit of considerable additional briefing on behalf of plaintiffs, we continue to find that Cotton 's result is consistent with the seminal Supreme Court decision in Hunter v. Underwood , 471 U.S. 222, 105 S. Ct. 1916, 85 L.Ed.2d 222 (1985). The district court's judgment is AFFIRMED.

BACKGROUND

I. Mississippi Constitution art. 12, § 241

A historical review of the challenged constitutional provision's evolution is necessary to further discussion. In its current form, the Mississippi Constitution denies the vote to any person "convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy." Miss. Const. art. 12, § 241. State statutes incorporate the Section 241 list by reference.¹ Miss. Code §§ 23-15-11, 23-15-19.

The original version of Section 241 was adopted as part of the Mississippi Constitution of 1890. It is uncontroverted that the state constitutional convention was steeped in racism and that "the state was motivated by a desire to discriminate against blacks" when the 1890 Constitution was adopted. Cotton , 157 F.3d at 391. Shortly afterward, the state Supreme Court even emphasized this point. See Ratliff v. Beale , 74 Miss. 247, 20 So. 865, 868 (1896) (acknowledging the "consistent, controlling[,] directing purpose governing the [1890] convention[:] ... to obstruct the exercise of the franchise by the negro race"). One device that the convention exploited to deny the franchise to blacks was the alteration of a pre-existing felon disenfranchisement law.² Accordingly, Section 241 was reconfigured in the 1890 Constitution to eliminate voter disenfranchisement for crimes thought to be "white crimes" and by adding crimes thought to be "black crimes." If Section 241 had never been amended, the provision would violate the Equal Protection Clause pursuant to Hunter. 471 U.S. at 227–28, 105 S. Ct. at 1920. Critically, however, it has been amended.

Since its invidious inception, Section 241 has been reenacted twice according to the state's procedures for enacting constitutional amendments. Those procedures require, first, that the legislature propose an amendment, and second, that the people ratify it. Only upon an affirmative popular ratification vote does the amendment take effect. Miss. Const. art. 3, §§ 5, 6 ; art. 15, § 273. The 1950 amendment removed "burglary" from Section 241's list of disenfranchising crimes.³ In 1968, several significant changes were made to Section 241, including the addition of "rape" and "murder" as crimes resulting in denial of the franchise.⁴

A multi-stage process led to the ratification of both successive versions of Section 241. The deliberative process behind the amendments was consequential. First, each house of the state legislature agreed to the proposed amendments by a two-thirds majority. Next, the entirety of Section 241 as amended was published two weeks before the popular elections. Then the amendments were presented to the public for a majority vote. The ballots presented the voters with two options—to vote "For Amendment" or "Against Amendment"—and the ballots printed out the entire provision as amended. The ballots did not disclose Section 241's then-existing language, and thus from the face of the ballot alone, the voters would not know what Section 241 would entail if they voted "Against Amendment."

The version of Section 241 enacted in 1968 is most relevant because it remains operative today.⁵ In 1965, a federal Civil Rights Commission had issued a detailed report condemning Mississippi's widespread racist voting practices and denouncing remnants of the 1890 convention's racist drafting. Specifically, the Commission criticized the various methods the convention used to "accomplish the same result" that "an express denial of the franchise" to black Americans would have accomplished.⁶ Among these devices were residency provisions and poll tax requirements.⁷ Additionally, the Commission took issue with the fact that the "disfranchising crimes were those to which Negroes were thought to be particularly prone" and that the "more serious felonies of murder, rape, or assault were not included."⁸

The Mississippi legislature responded to these objections in what became the constitutional amendment revising Section 241. In 1968, the Mississippi legislature introduced House Concurrent Resolution No. 5 ("H.C.R. No. 5"), which, among other changes, modified the residency requirements, deleted the poll tax requirements, and added the supposed "non-black" crimes of "murder" and "rape" to the disenfranchising crimes in Section 241. One of the explicit purposes of H.R. No. 5 was "to delete certain improper parts of the section." These changes were approved by popular vote, as required by the state constitution, and resulted in the reenactment of Section 241 as it stands today.⁹

Post-reenactment information is also instructive. In 1984, Mississippi's election scheme was scrutinized by a multi-racial Election Law Reform Task Force, led by Democrat Secretary of State Dick Molpus. The Task Force held public hearings throughout the state and met with voting rights lawyers from the U.S. Department of Justice. The Task Force included members of the legislature, executive branch officials, circuit clerks, local election commissioners, and members of the public. Over the course of seven months, the Task Force accepted public comments and deliberated over the state's election laws. The Task Force contemplated, inter alia , whether to amend Section 241 by expanding the list of disenfranchising felonies. For example, the Task Force's meeting with the U.S. Department of Justice involved "much discussion concerning the broadening of disenfranchising crimes to include all felonies." Ultimately, however, the members resolved to leave the law "as is."

In response to the Task Force's work, both chambers of the 1985 Mississippi legislature formed committees that also studied these issues and considered the Task Force recommendations. One joint committee memorandum recommended expanding Section 241 to include all felony convictions except for tax evasion and manslaughter. A senate bill was introduced to that effect. Ultimately, the Mississippi legislature followed the recommendation of the Task Force and declined to expand the Section 241 list of disenfranchising crimes. Instead, the state's election statutes were amended by, among other things, adding two direct references to the Section 241 list of disenfranchising crimes. The amended statutes took effect after being precleared by the U.S. Department of Justice.¹⁰

II. Current Proceedings

Plaintiffs-Appellants, Roy Harness and Kamal Karriem, are black men in Mississippi who were convicted, respectively, of forgery and embezzlement. Both are disenfranchised under current Mississippi law because of their convictions. They filed suit against the Mississippi Secretary of State under the Fourteenth and Fifteenth Amendments seeking declaratory and injunctive relief to restore the voting rights of convicted felons in Mississippi. They contend that the crimes that "remain" in Section 241 from the 1890 Constitution are still tainted by the racial animus with which they were originally enacted. Plaintiffs do not challenge murder and rape in Section 241, which were not part of the 1890 list but were added in 1968.

The district court's thorough and carefully reasoned opinion granted the Secretary's motion for summary judgment. The court acknowledged the precedential effect of this court's holding in Cotton that the 1950 and 1968 amendments to Section 241 cleansed the current provision of its previous discriminatory taint. The district court went further to explain that the additional public and legislative deliberations in 1984–86 "show[ ] the state would have passed section 241 as is without racial motivation." Plaintiffs appealed, and a panel of this court affirmed on similar grounds. See Harness v. Hosemann , 988 F.3d 818, 821–23 (5th Cir.), reh'g en banc granted, opinion vacated , 2 F.4th 501 (5th Cir. 2021). This court granted plaintiffs' subsequent request for rehearing en banc.

STANDARD OF REVIEW

A grant of summary judgment is reviewed de novo on appeal. Petro Harvester...