Discrimination and exclusion underpin much of our nation’s legal and constitutional history. This is especially evident in the restrictions placed on the ability of Americans with past felony convictions to participate in democracy, a practice that disproportionately strips voting rights from people of color. As courts reject challenges to these disenfranchisement provisions, it raises the question of whether these laws can ever truly be divorced from their racist origins.
People convicted of felonies have historically been limited in their ability to vote — if not excluded altogether. In the United States, the practice dates to the late 18th and early 19th centuries. Prior to the Civil War, excluding people with felony convictions from the ballot box was a relatively race-neutral practice, but in the aftermath of Reconstruction, when Jim Crow laws solidified white supremacist rule in the South, these laws were increasingly used to disenfranchise prospective Black voters.
In Hunter v. Underwood in 1985, the U.S. Supreme Court struck down Alabama’s disenfranchisement scheme for people with felony convictions, concluding that Section 182 of the Alabama Constitution was motivated by racial animus and was unconstitutional under the Equal Protection Clause. Since that decision, plaintiffs in Florida and Mississippi have challenged their state constitutions’ provisions — so far unsuccessfully.
Both the Fifth and Eleventh Circuit Courts of Appeals have rejected these challenges, concluding that the reenactments of the disenfranchisement provisions in the 1960s removed the “discriminatory taint” that the provisions had when they were adopted. Plaintiffs have appealed the Fifth Circuit’s August 2022 ruling to the U.S. Supreme Court.
The idea that the Southern state constitutions adopted after Reconstruction were motivated by racial animus when they were adopted is well-documented. But the idea that this unconstitutional racial animus could be removed by reenactments of the same basic provisions during the 1960s — at the tail end of the civil rights movement, which inspired significant resistance from Southern state governments — is difficult to fathom.
Throughout the South, new constitutions were written from the 1960s to the 1980s, with most constitutional development taking place in the 1970s. Florida adopted a new constitution in 1968, Georgia in 1976 and 1983, Louisiana in 1974, North Carolina in 1971, and Virginia in 1972 — and beyond that, many of the articles in the Maryland and South Carolina constitutions were rewritten by individual amendments in the 1970s. Prior to this point, many of the disenfranchisement provisions adopted in these states after Reconstruction barred voting for those convicted of “infamous crimes,” as well as a laundry list of other specific crimes. Constitutional reforms in these states usually resulted in the adoption of totally new language, which tended to eliminate the enumeration of specific felonies and provide state legislatures with greater power to alter the restrictions.
In Florida, for example, the change from the 1868 and 1885 constitutions’ disenfranchisement provisions to the 1968 constitution’s provision was rather dramatic. The 1868 and 1885 constitutions excluded from the ballot box
“all persons convicted of bribery, perjury, larceny, or of infamous crime, or who shall make, or become directly or indirectly interested in, any bet or wager, the result of which shall depend upon any election; or that shall hereafter fight a duel or send or accept a challenge to fight, or that shall be a second to either party, or that shall be the bearer of such challenge or acceptance.”
But the 1968 constitution merely provided that “no person convicted of a felony, or adjudicated in this or any other state to be mentally incompetent, shall be qualified to vote or hold office until restoration of civil rights or removal of disability.”
This provision was also separately voted on from the rest of the constitution. While the bulk of the 1968 constitution was adopted in a single amendment, voters cast separate ballots on a rewrite of the suffrage and elections article, which gave them an opportunity to accept or reject these specific changes.
Moreover, other changes from the 1885 to 1968 constitution suggested a greater level of friendliness to civil rights. The 1968 constitution responded to the U.S. Supreme Court’s one-person, one-vote rulings by mandating population-based redistricting for the state legislature. It also struck the 1885 constitution’s requirement of segregated schools and strengthened the protection of individual rights and liberties.
With much of this context in mind, the Eleventh Circuit held in Johnson v. Governor of Florida that “Florida’s 1968 re-enactment eliminated any taint from the allegedly discriminatory 1868 provision.”
But the changes to the Mississippi Constitution are harder to square with the Fifth Circuit’s similar holding. Before 1890, the Mississippi Constitution contained disenfranchisement provisions that listed specific felonies. But the 1890 constitution expanded the list from three specific crimes and “other high crimes or misdemeanors” to nine specific crimes and several additional catchall categories. It also placed the disenfranchisement provision in Section 241, which set general qualifications for voting and excluded women, Native Americans living on reservations, those adjudicated as “insane,” new residents, those who had not paid the poll tax, and those convicted of specified felonies.
Over the course of the 20th century, Section 241 was modified to allow women to vote, to strike the reference to Native Americans, to bring the residency requirements into compliance with the U.S. Constitution, to eliminate the requirement of poll taxes, to lower the voting age, and to add “murder” and “rape” to the list of excluding felonies. The Mississippi Constitution was not ever rewritten, and no wholesale rewrite of the franchise article ever took place.
In 1968, for example, a handful of changes were proposed to Section 241. The exclusion of “Indians not taxed” was struck, the residency requirement was reduced from two years to one in the state and one year to six months in the precinct, murder and rape were added to the list of disqualifying offenses, the poll tax requirement was eliminated, and an archaic provision relating to the residency requirements for ministers and their wives was also repealed. But the core of the felony disenfranchisement provision remained.
Yet the Fifth Circuit held in Harness v. Watson that these relatively minor changes “superseded the previous provisions and removed the discriminatory taint associated with the provision adopted in 1890.” It’s hard to imagine how a change to the felony disenfranchisement clause of the section, which amounted to a total of two words that expanded the disqualifying offenses, could possibly function as a reenactment of the ban. Moreover, the amendment didn’t offer voters a meaningful choice — when voting on it, voters’ options were to keep a series of unconstitutional eligibility requirements or to delete those requirements and add two new disqualifying crimes.
The rulings of the Fifth and Eleventh Circuits offer conflicting takeaways. The Eleventh Circuit’s decisions suggest that significant changes to a provision drafted with racial animus, presented to voters in the context of a constitutional rewrite where they have a meaningful choice — or, put another way, where the provision was literally reenacted — can purge the discriminatory “taint” from such a provision. But the Fifth Circuit seems to suggest that any change to the text of the section containing the disenfranchisement provision, whether material to the provision’s scope or not, purges the taint.
More broadly, however, we might question whether the modification — much less reenactment — of a disenfranchisement provision in the 1960s could possibly have been done in a way free from racial animus. It is difficult to defend the notion that voters in the South in 1968 — the year of Martin Luther King Jr.’s assassination, during a time when a supermajority of Americans had an unfavorable opinion of him and a third felt he brought his assassination on himself — were free from racial animus as they cast their ballots.
Quinn Yeargain is an assistant professor at Widener University Commonwealth Law School.
The views expressed are the author’s own and not necessarily those of the Brennan Center.