47 F.4th 296
5th Cir.2022Background
- Mississippi Constitution art. 12, § 241 (originally adopted 1890) disenfranchises persons convicted of certain listed crimes; the list was understood at enactment to target crimes perceived as "black crimes."
- § 241 was amended in 1950 (removed burglary) and 1968 (added murder and rape; changed residency and poll-tax provisions); those amendments were adopted through the legislature-and-popular-ratification process.
- Plaintiffs (Harness and Karriem), both Black and convicted of offenses listed in § 241 (forgery and embezzlement), sued the Mississippi Secretary of State alleging § 241 violates the Equal Protection Clause because portions of the list retain the original racial animus.
- The district court granted summary judgment for the State, relying on Fifth Circuit precedent (Cotton v. Fordice) that later reenactments can purge original discriminatory taint; a Fifth Circuit panel affirmed and rehearing en banc was granted.
- The en banc court reaffirmed Cotton: plaintiffs failed to prove discriminatory intent behind the operative (1968) provision, and subsequent legislative/public deliberations (including 1984–86 Task Force review) support that any original taint has been cured; the district court judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 241, as currently operative, violates Equal Protection because it originates in 1890 racial animus | Harness: original 1890 list was enacted with racial intent and those tainted entries remain on the books, so Hunter requires invalidation | Watson: the 1950 and 1968 amendments reenacted § 241; the relevant inquiry is the intent of the most recent enactment, and plaintiffs bear burden to show discriminatory intent | Held: Plaintiffs failed to show discriminatory intent in the 1968 reenactment; § 241 survives Equal Protection review and the judgment is affirmed |
| Whether later amendments/reenactments can "purge" original discriminatory intent (Hunter question) | Plaintiffs: reenactments did not require voters to approve each original crime; thus original taint persists | State: Supreme Court and circuits permit inquiry into intent of the last enacting body; Abbott confirms burden remains on challenger and presumption of good faith | Held: Reenactment doctrine (as applied in Cotton and followed by other circuits) stands; court evaluates the 1968 enactment's intent and finds no invidious purpose |
| Whether plaintiffs need to prove ongoing discriminatory effect as well as intent | Plaintiffs/dissent: Hunter requires both intent and ongoing discriminatory effect; plaintiffs argued original intent suffices or that effect exists | State/concurring judge: burden is on plaintiffs; effect must be shown relative to felon population and plaintiffs conceded no greater disparity than a blanket disenfranchisement law | Held: Court assumes plaintiffs failed on intent; several concurrences note effect inquiry but the absence of proven discriminatory intent is dispositive |
| Whether summary judgment was appropriate given historical context and record evidence | Plaintiffs/dissent: historical evidence of Mississippi’s 1950s–1960s racism creates genuine issues of fact about 1968 intent and whether reenactment occurred | State: legislative and popular ratification process, Task Force and committee reviews, DOJ preclearance, and lack of evidence of invidious motive support summary judgment | Held: No genuine issue of material fact as to discriminatory intent of 1968 enactment; summary judgment for state affirmed |
Key Cases Cited
- Hunter v. Underwood, 471 U.S. 222 (Sup. Ct.) (facially neutral felon-disenfranchisement provision invalid where original enactment motivated by racial discrimination and it continues to have that effect)
- Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998) (reenactments and deliberative amendment process can purge original discriminatory taint)
- Abbott v. Perez, 138 S. Ct. 2305 (2018) (burden remains on challenger; inquiry focuses on intent of the enacting legislature; past discrimination does not presumptively condemn later governmental action)
- Richardson v. Ramirez, 418 U.S. 24 (Sup. Ct.) (Section 2 of the Fourteenth Amendment contemplates disenfranchisement for crime)
- Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (Sup. Ct.) (framework for proving discriminatory intent via historical background, sequence of events, and legislative history)
- Johnson v. Governor of Fla., 405 F.3d 1214 (11th Cir. 2005) (en banc) (later reenactment can remove taint; evaluate intent of last enactment)
- Hayden v. Paterson, 594 F.3d 150 (2d Cir. 2010) (later constitutional provisions’ intent governs whether prior discriminatory taint persists)