Excerpted From: Thomas T. Sheffield, “A Wrong Never Righted”: Harness v. Watson & the Fifth Circuit's Failure to Repudiate Jim Crow, 74 Syracuse Law Review 405 (2024) (219 Footnotes) (Full Document)

ThomasTSheffieldIn the August 2022 case Harness v. Watson, the United States Court of Appeals for the Fifth Circuit upheld the Mississippi Constitution's Jim Crow-era felon disenfranchisement provision, article 12, section 241. To do so, it applied the Supreme Court's standard for evaluating facially neutral provisions with racially disproportionate effects, articulated in the seminal case Village of Arlington Heights v. Metropolitan Housing Development Corporation, and extended to felon disenfranchisement laws in Hunter v. Underwood. As part of that standard, plaintiffs must show that such provisions were passed with discriminatory intent. However, in Hunter, the Supreme Court posed, but did not answer, a hypothetical: whether the Alabama felon disenfranchisement provision at issue there would be permissible if later reenacted without discriminatory intent. That hypothetical was the subject of a line of cases in the Courts of Appeals evaluating other felon disenfranchisement provisions originally enacted with discriminatory intent, but purportedly reenacted in a manner that purged them of their discriminatory taint. Harness is the latest in this line.

In Harness, the Fifth Circuit held that subsequent amendments to section 241 constituted reenactments sufficient to purge it of its original, discriminatory intent. However, this Note critiques the Fifth Circuit's decision in two respects. Building on an observation of U.S. Circuit Judge James Graves' dissent in Harness, it first argues that the court adopted an incomplete conception of reenactment because the majority did not consider who participated in the reenactment process. An examination of voting practices, structures, and census and election data from that era makes clear that those whom the provision originally intended to discriminate against, Black Mississippians, likely had little say in whether to reenact the discriminatory provisions. Second, this Note argues that the Fifth Circuit employed three problematic doctrinal tools identified elsewhere in the voting rights law literature. These tools are faux naiveté, the presumption of legislative good faith, and animus laundering. They emerged in several portions of the Harness majority's reasoning and allowed that majority to avoid grappling with Mississippi's historical experience of racism and voter suppression. As such, the Fifth Circuit's analysis was necessarily deficient.

To provide context for these critiques, Part I of this Note will survey the history of racism and voter suppression in Mississippi before explaining the doctrinal framework and line of cases leading to Harness.

Next, Part II will present two prior critiques of the conception of reenactment adopted by the Fifth Circuit. Building on observations made by the principal dissent in Harness, it will then examine the circumstances around the 1968 amendment process, including the well-documented instances of racism and voter intimidation, the electoral maps that elected the legislators who proposed the subsequent amendments to section 241, and data from the election that ratified the amendments. Together, these circumstances will demonstrate that Black Mississippians likely did not have an adequate voice in the decision of whether to reenact section 241.

Finally, applying a framework previously identified in the literature, Part III will demonstrate that the Fifth Circuit employed the doctrinal tools of faux naiveté, the presumption of legislative good faith, and animus laundering to avoid the task of grappling with the history of racism and voter suppression in Mississippi. In doing so, its analysis of whether section 241 was purged of its original discriminatory intent was deficient.

Therefore, this Note concludes that, whether or not it is ever possible for the reenactment of a discriminatory provision to do away with past discriminatory intent, it could not have happened in section 241's case. As such, it was a grave injustice for the Supreme Court to refuse to review and reverse the en banc Fifth Circuit's decision in Harness.

[. . .]

Concluding his dissent, Judge Graves, himself a Black Mississippian, powerfully recounts his experiences growing up during the Jim Crow Era. He describes early memories of a cross burned on his grandmother's lawn. He lists the effects of the Supreme Court's decision forcing Mississippi to commence desegregation, leaving his school with few of the best Black teachers and many of the worst white teachers. He recalls rising through the ranks of the Mississippi and federal judiciaries, constantly flanked by the Mississippi flag with its Confederate emblem, “a haunting reminder that a wrong never righted touches us all.”

In upholding section 241, the Fifth Circuit failed to right the wrongs of Mississippi's past by declining to repudiate the vestiges of Jim Crow. It also failed to repudiate what Professor Michelle Alexander has coined the new Jim Crow, as felon disenfranchisement works hand in hand with the detrimental system of mass incarceration. Because section 241 was meant to oppress their vote, Black Mississippians must have had a say in any reenactment process purporting to purge it of past discrimination. But they had no say in the process that proposed and adopted section 241, and the Fifth Circuit nevertheless held it constitutional. It was able to do so using tools that helped it avoid truly grappling with the history of racism in Mississippi and its consequences, making its analysis deficient. Thus, if the Hunter hypothetical is ever possible, it did not occur here.

In October 2022, the plaintiffs in Harness filed a petition for a writ of certiorari in the Supreme Court of the United States. And in June 2023, after upholding section 241 over a century earlier, the Supreme Court too failed to repudiate Jim Crow and denied the petition, missing “yet another opportunity to learn from its mistakes.” But even in the face of this grave injustice, in the deep tradition of Wilter May Abrams and countless others, those dedicated to a truly pluralistic and democratic society can “leave no power on the table.” Voting and democratic organizing remain ever important. In the words of the third Justice Jackson, “[c]onstitutional wrongs do not right themselves.”

J.D. Candidate, Syracuse University College of Law, 2024; B.A., State University of New York at Fredonia, 2021.