Jim Crow Laws, Still Suppressing Black Voters Today
Class 9: Can an 1890 Racist Voting Law Be "Cleansed"?
I’ve got an ugly story to tell you. And there isn’t a happy ending.
But it’s important history to know, with consequences that remain all too real today, including leaving countless Americans unable to vote.
So everyone needs to know it. Please read on…
The story starts in 1890, when the politicians of Mississippi gathered to enact a new Constitution. These men weren’t subtle about their mission. As part of a fierce and often violent backlash to Reconstruction and the ascent of a diverse democracy, their purpose was to lock out Black voters in the future.
So they dedicated their entire convention to the cause of white supremacy.
How do we know? Well, for one, they admitted as much:
“There is no use to equivocate or lie about the matter . . . Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the n—— from politics . . . . In Mississippi we have in our constitution legislated against the racial peculiarities of the Negro . . . . When that device fails, we will resort to something else.”
These are the words of the future Governor and Senator of the state, James Vardaman. And to be clear, when he explained this motivation, he wasn’t apologizing for it. He was proud of it! That’s why he catapulted to decades of leadership in the state and nation. Vardaman also once famously said: “If it is necessary every Negro in the state will be lynched; it will be done to maintain white supremacy.”
But let’s hear from some of of the 1890 conventioneers, who echoed his account:
“The plan is to invest permanently the powers of government in the hands of the people who ought to have them—the white people.”
“Let’s tell the truth if it bursts the bottom of the Universe. We came here to exclude the Negro. Nothing short of this will answer.”
“Our chief duty when we meet in Convention is to devise such measures . . . as will enable us to maintain a home government, under the control of the white people of the State.”
As I said, not subtle. But proud.
Now, to accomplish their mission, the convention enacted a host of discriminatory laws such as segregating schools and banning miscegenation. Another prominent discriminatory tool was that they “updated” a law that had been in place previously that banned those who had committed certain crimes from voting. And the “update” involved enumerating a specific list of crimes that triggered permanent disenfranchisement: bribery, burglary, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, and bigamy. At the same time, they removed/excluded other crimes: “robbery and murder and other crimes in which violence was the principal ingredient.”
What drove their decisions? Simple—as Vardaman explained above, they “legislated against [what they considered] racial peculiarities of the Negro.” They considered the crimes triggering disenfranchisement to be those likely to be committed by Black Misissippians; those not included, “crimes of the whites.” And driven by that motivation, they locked that framework into their new Constitution.
Fast forward almost 100 years.
In 1986, Roy Harness, a Black resident of Mississippi, was convicted of forgery. He was in his 20s then, served his time, and would later graduate from Jackson State University with a degree in social work. But because forgery was one of the crimes on that infamous list from 1890, Harness was locked out of Mississippi’s democracy.
Thirty-one years after his forgery conviction, Harness (and another plaintiff) tried to change that—bringing suit in federal court and arguing that losing his right to vote due to that deeply tainted 1890 Constitution violated his federal constitutional rights.
Harness lost. And then lost again when the United States Supreme Court declined to take up the case in June of this year, sparking one of Justice Ketanji Brown Jackson’s first dissents.
So today, and for the rest of their lives, Roy Harness still can’t vote in Mississippi due to a law motivated by Jim Crow racism 133 years ago.
Class 9 of our Voting Rights Academy will review the important case that first gave Roy Harness hope he could win back his voting rights.
And it will conclude with the case that dashed that hope in 2022, and the Supreme Court’s decision early this summer to leave it in place, along with a law that helped create Jim Crow.
The Hope: Hunter v. Underwood
Last class, we reviewed the case Richardson v. Ramirez, where the U.S. Supreme Court relied on a long overlooked clause of the Fourteenth Amendment—Section 2—to uphold felony disenfranchisement laws across the country.
A decade after that case, a conservative Supreme Court carved out a meaningful exception to Ramirez.
The case, Hunter v. Underwood, came out of Alabama. Like Mississippi, Alabama’s 1901 Constitution was motivated by white supremacy. And like Mississippi, Alabama also took direct aim at Black voters in the way that it amended its voter disenfranchisement law. Specifically, the state added crimes of “moral turpitude” to its list of offenses triggering disenfranchisement, along with misdemeanors thought to be committed more often by Black Alabamans. It also added a mechanism whereby a Board of Registrars was empowered to determinate if a particular crime qualified as “moral turpitude” to trigger disenfranchisement.
Over the decades, the Alabama law accomplished the discriminatory mission of 1901—ten times as many Black Alabamans were disenfranchised as Whites.
Two men, Victor Underwood and Carmen Edwards, challenged the law in the 1980s. Both had been convicted of passing bad checks. After a registrar deemed the crime to be one of “moral turpitude” that kept them from voting, they sued, took their case all the way to the Supreme Court, and won.
For a unanimous Supreme Court, Justice Rehnquist wrote that 1) the discriminatory impact and 2) the clearly expressed racist intent of the 1901 Alabama Convention together doomed the disenfranchisement law:
“The delegates to the all-white convention were not secretive about their purpose. John B. Knox, president of the convention, stated in his opening address: ‘And what is it that we want to do? Why it is, within the limits imposed by the Federal Constitution, to establish white supremacy in this State.’”
Then the Court found that the felony disenfranchisement law was specifically “enacted with the intent of disenfranchising blacks.”
Because the law’s “original enactment was motivated by a desire to discriminate against blacks on account of race, and the section continues to this day to have that effect…it violates equal protection.”
The state could not rely on Section 2 of the Fourteenth Amendment, as the Court had in Richardson v. Ramirez, to alter the outcome. “[W]e are confident that § 2 was not designed to permit [] purposeful racial discrimination,” Rehnquist wrote.
Of course, given how many felony disenfranchisement laws could be traced back to the discriminatory Jim Crow laws that ended Reconstruction (the map below, from the Brennan Center, tells the story)…
…this looked to be a watershed case.
Trace a law back to the clear motivation to discriminate (and they weren’t shy about that motivation back then), and you win.
Right?
Well….
Hope Dashed: Roy Harness Goes to Court
Hunter v. Underwood was decided in 1985.
The next year, Roy Harness of Mississippi was convicted of forgery.
The Mississippi law that added forgery as a crime triggering disenfranchisement was passed eleven years before Alabama’s, with the same express intent the Court cited in striking down Alabama’s.
So what happened that led Harness to lose a case last year so similar to the one that Underwood won (by way of a conservative Supreme Court) in 1985?
According to the Fifth Circuit, what happened was that Mississippi had “cleansed” the racial taint from its 1890 law through two later Constitutional amendments. In 1950, the voters of Mississippi removed burglary from the list of crimes triggering disenfranchisement. And in 1968, the crimes murder and rape were added to that list. All the other crimes on the list remained the same as in 1890.
But those narrow changes, the majority reasoned, constituted “reenactments” of the “tainted” Constitution. And because there was no showing of racially discriminatory intent behind the 1968 Amendment, the “discriminatory taint” of the original 1890 law was “removed.” Harness could therefore be removed from Mississippi’s democracy even though the crime he committed had been originally included to target Black voters like him.
The Dissent
No surprise, the decision sparked a spirited dissent, the likes of which I have never read before. You can read it all here, beginning at Page 36.
Here are the opening lines of the 47-page opinion written by Judge James Graves, himself Black and a Mississippi native who rose to become a Justice on the Mississippi Supreme Court before President Obama nominated him to the Fifth Circuit (read more about Judge Graves and his dissent here):
“Today the en banc majority upholds a provision enacted in 1890 that was expressly aimed at preventing Black Mississippians from voting. And it does so by concluding that a virtually all-white electorate and legislature, otherwise engaged in massive and violent resistance to the Civil Rights Movement, “cleansed” that provision in 1968. Handed an opportunity to right a 130-year-old wrong, the majority instead upholds it.”
Graves proceeds to review the history—the racist machinations that resulted in the 1890 Constitution; the long history of Mississippi defying federal laws, court decisions and civil rights efforts in the 1950s and 60s (to rebut the argument that Amendments passed in that era would have been to “cleanse” past racism); and his own personal experiences coming of age in Mississippi. Then he concludes:
“Harness and Karriem [the other plaintiff] are Black Mississippians who are disenfranchised and deprived of a right that is the cornerstone of our democracy. They are deprived of that right because of §241—a constitutional provision enacted for the purpose of discriminating against them and their ancestors on the basis of their race. Eight of the crimes selected in 1890 and that remain in § 241 today, including the two crimes that disenfranchise Plaintiffs, were selected with a discriminatory purpose. They were selected by a racist and nearly all-white legislature and approved by a racist and nearly all-white electorate to oppress Black Mississippians. Since then, Mississippi voters have not spoken on those eight crimes. They have not voted on or applied their intentions to those crimes. So the discriminatory taint behind those eight crimes has lingered for over a century and still stands today.”
Out of 17 judges, Judge Graves managed to enlist four judges to sign onto his dissenting opinion. Four.
Justice Jackson’s Dissent
When the Supreme Court voted not to take the case in June of this year, Harness’s loss was cemented into place. Justice Ketanji Brown Jackson issued a rare dissent to the denial of hearing a case.
She pointed out that “the State never enacted any ‘new’ version of the original eight grounds for disenfranchisement…. Therefore, the same discriminatory list of crimes that the 1890 Constitution’s ratifiers “ma[d]e into law by authoritative act” operates to disenfranchise Mississippians who commit those crimes today.”
Jackson circled back to a case we reviewed in Class 1 of this Academy—Williams v. Mississippi (1898)—where the Court first rejected a challenge to the then-new Mississippi Constitution because the legal verbiage that emerged out of that 1890 convention did not discriminate explicitly:
“Mississippians can only hope that they will not have to wait another century for a judicial knight-errant. Constitutional wrongs do not right themselves. With its failure to take action, the Court has missed yet another opportunity to learn from its mistakes.”
The Impact
I reviewed the overall impact of felony disenfranchisement laws in our prior class. This graph sums it up:
And I reviewed how these laws disproportionately impact Black men.
But back in Mississippi, post-Harness, how do the numbers play out?
As Judge Graves explained in his dissent, more than 230,000 Mississippians of voting age remain disenfranchised due to this law—10% of the population.
And more than half that total are Black. In all, 16% of Black Mississippians are barred from democracy just like Roy Harness is.
So the motivations of men like Vardaman, and some of the very laws that built the foundation of the Jim Crow South, are still disenfranchising that many Black voters today.
As I warned, it’s an ugly story, without a happy ending.
And far too few know any of it.
Unfortunately, the concept of white supremacy hasn’t really faded from our political landscape! It rears its ugly head almost every day in some form! It should bother us that our children are learning by example from those who espouse that doctrine!
Thanks to Asha Rangappa for recommending your Stack. I plan to sign up for the whole course. I took a so-called Black History course in college around 1975-76, but I need to expand my knowledge. Current events are dire, and historical context may help me speak out to protect voting rights. As a former moderator of a polling place, I’m deeply invested in protecting the integrity of our elections.