JACKSON, Miss. -- The authors of Mississippi's 1890 constitution had racist intent when they stripped voting rights from people convicted of some felonies, an attorney argued Wednesday in a federal appeals court, saying they chose crimes they thought were more likely to be committed by Black people.
The 5th U.S. Circuit Court of Appeals should overturn most of Mississippi's felon disenfranchisement plan, attorney Donald Verrilli Jr. argued on behalf of people with felony convictions. The case could affect thousands who have lost voting rights.
"Because the 1890 provisions were unconstitutional, they were invalid from the moment that they're enacted," Verrilli said.
Attorneys representing the state said Mississippi dropped burglary from the list of disenfranchising crimes in 1950 and added murder and rape to the list in 1968. They said in written arguments that those changes "cured any discriminatory taint on the original provision."
"The ultimate question for this court is whether the Mississippi Constitution's felon disenfranchisement provision comports with the equal protection clause. It does," Mississippi's deputy solicitor general, Justin Matheny, told the appeals court judges.
The Mississippi Constitution strips voting rights from people convicted of 10 felonies, including forgery, arson and bigamy. The state attorney general issued an opinion in 2009 that expanded the list to 22 crimes, including timber larceny, carjacking, felony-level shoplifting and felony-level bad-check writing.
In the case heard Wednesday, the plaintiffs did not challenge disenfranchisement of people convicted of murder or rape.
To regain voting rights in Mississippi, a person convicted of a disenfranchising crime must receive a governor's pardon or must win permission from two-thirds of the state House and Senate.
Legislators in recent years have passed a small number of bills to restore voting rights. Bills to restore suffrage to 28 people were filed this year. Two of those were passed, and Republican Gov. Tate Reeves let both become law without his signature.
Federal lawsuits were filed in Mississippi in 2017 and 2018 seeking automatic restoration of voting rights for people who had finished serving sentences for disenfranchising crimes.
The case heard Wednesday is from the lawsuit filed in 2017. Judges asked several questions during the hourlong hearing but did not indicate how or when they might rule.
A panel of 5th Circuit judges heard arguments in December 2019 from the other case, which makes different arguments. That panel has not issued a ruling.
The Sentencing Project, a national advocacy group that seeks to eliminate racial disparities in the criminal justice system, said in a 2020 report that more than 5 million people in the United States are disenfranchised because of criminal convictions. It said that includes more than 8% of adults in Alabama, Mississippi and Tennessee. The report also said Mississippi is one of seven states where more than 1 in 7 Black people is disenfranchised, twice the national average.
In November 2018, Florida voters adopted a state constitutional amendment to automatically restore voting rights to convicted felons once they complete their sentences, with the exception of those convicted of murder or sex offenses.