988 F.3d 818
5th Cir.2021Background
- Mississippi’s 1890 constitution replaced a broad felony disenfranchisement rule with a list of specific crimes (e.g., bribery, theft, arson) selected with acknowledged racial motives aimed at suppressing Black voting.
- Mississippi amended § 241 in 1950 (removing burglary) and 1968 (adding murder and rape); both amendments followed a multi-step deliberative process requiring two-thirds legislative approval and voter ratification.
- Roy Harness and Kamal Karriem, both Black and convicted of crimes enumerated in § 241, sued the Mississippi Secretary of State claiming § 241 is unconstitutional because its original 1890 enactment was racially motivated and the taint persists.
- The district court granted summary judgment for the Secretary, relying on Fifth Circuit precedent (Cotton v. Fordice) that the 1950 and 1968 amendments cured the original discriminatory taint.
- On appeal the Secretary challenged jurisdiction (standing and sovereign immunity); the Fifth Circuit held the Secretary is sufficiently connected to enforcement (via the Statewide Elections Management System) to permit the suit.
- The panel applied the rule of orderliness and held Cotton controls: the deliberative amendment process in 1950 and 1968 removed the original discriminatory taint, so plaintiffs’ Fourteenth Amendment claim fails.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to sue Secretary of State | Harness/Karriem: injury from loss of voting rights traceable to state voting apparatus; Secretary not proper defendant | Sec. of State: injury traceable to county officials maintaining rolls, not to him | Court: Standing exists — Secretary implements the statewide voter-management system and helps remove felons, so injury is at least partially traceable and redressable by him |
| Sovereign immunity | Plaintiffs: suit for declaratory/injunctive relief against official permitted where official enforces the law | Sec. of State: immune because enforcement is at county level | Court: No immunity barrier — Secretary has a ‘special relationship’ to §241 enforcement via state systems |
| Constitutionality of §241 given 1890 racial motive | Plaintiffs: portions of §241 traceable to 1890 remain tainted by racial intent and thus violate the Fourteenth Amendment | Sec. of State: amendments in 1950 and 1968 superseded the 1890 provision and removed its discriminatory taint | Court: Held for defendant — Richardson permits felon disenfranchisement but Hunter/Fordice require eradication of race-traceable policies; Cotton controls and the 1950/1968 amendments cured the taint |
| Whether Cotton is binding or abrogated by Abbott v. Perez | Plaintiffs: new evidence of ballot form and Perez suggest Cotton should not control | Sec. of State: Cotton remains controlling precedent | Court: Cotton remains binding under rule of orderliness; Perez did not unequivocally abrogate Cotton |
Key Cases Cited
- Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998) (held 1950 and 1968 amendments to §241 superseded 1890 provision and removed discriminatory taint)
- Hunter v. Underwood, 471 U.S. 222 (1985) (a provision originally enacted with racial discrimination is unconstitutional if its effects persist)
- Richardson v. Ramirez, 418 U.S. 24 (1974) (states may disenfranchise felons under the Fourteenth Amendment)
- United States v. Fordice, 505 U.S. 717 (1992) (states must eradicate policies traceable to prior racial discrimination)
- Abbott v. Perez, 138 S. Ct. 2305 (2018) (addressed when prior discriminatory provisions remain tainted after changes; did not clearly overrule Cotton)
- Tex. Democratic Party v. Abbott, 978 F.3d 168 (5th Cir. 2020) (discussed when suits against state officials are permitted given connection to enforcement)
- Thole v. U.S. Bank N.A., 140 S. Ct. 1615 (2020) (recited Article III standing requirements)