Issue 3: Felony Disenfranchisement & State Constitutions

September 16, 2022 By Kyle C. Barry

In a chilling display of dictatorial theatrics, Florida Governor Ron DeSantis last week made a spectacle of using felony disenfranchisement laws — always racist tools of voter suppression — to intimidate and criminalize potential voters. DeSantis touted the arrests for fraud of people whom election officials, including those in his own administrationhad approved to vote despite their previous felony convictions (many people with felony convictions in Florida are in fact eligible voters). Under intense scrutiny, it has become increasingly clear that police, including a SWAT team in at least one case, had rounded up and caged bewildered voters for nothing more than their good-faith efforts to engage in democracy. 

But getting far less attention is a devastating Fifth Circuit Court of Appeals decision, dropped just days later, upholding the felony disenfranchisement provision in Mississippi’s state constitution — a law that, not even its defenders dispute, was originally designed to prevent Black people from voting. 

First reported in the Mississippi Free Press, the Fifth Circuit’s ruling highlights the crucial role of courts in deciding whether voting rights remain so tightly intertwined with the criminal legal system. It’s also a timely reminder of the stakes in this year’s North Carolina supreme court elections, where Democrats must defend two seats to retain a slim 4-3 majority, and where a similar felony disenfranchisement case is pending. 

Mississippi adopted felony disenfranchisement in 1890 while codifying the white backlash to racial equity gains made during Reconstruction. Not every felony, though, was disqualifying, just those thought most likely to be committed by Black people (murder, for example, was not on the list). But the law’s framers were even more explicit: “Mississippi’s constitutional convention of 1890,” one future governor and U.S. Senator announced, “was held for no other purpose than to eliminate the n***er from politics.”

For the Fifth Circuit majority, such clear intent did not amount to an equal protection violation. Instead, the court reasoned that later amendments to the law in 1950 (to remove burglary from the list of disqualifying felonies) and 1968 (to add rape and murder) effectively washed all the old racism away. This is despite the fact that, in the 1960s, Mississippi’s white lawmakers had simply recalibrated their backlash from Reconstruction to Brown v. Board of Education and the Civil Rights Movement. 

In dissent, Judge James Graves, one of the court’s two Black judges, wrote that the majority upheld the law only “by concluding that a virtually all-white electorate and legislature, otherwise engaged in massive and violent resistance to the Civil Rights Movement, ‘cleaned’ that provision in 1968. Handed an opportunity to right a 130-year-old wrong, the majority instead upholds it.”

Contrast the Fifth Circuit’s approach with that of a superior court in North Carolina. In a 2-1 ruling in March, the court struck down a law that prohibits people on probation, parole, or supervised release from voting, and ordered voting rights restored to 56,000 people. The court’s opinion both traced the racist origins of felony disenfranchisement (“The goal of the felony disenfranchisement regime established in 1876 and 1877 . . . was to discriminate against and disenfranchise African American people”) and explained that later amendments did not erase the law’s racist designs (“Even in the 1970s, people in North Carolina understood that maintaining felony disenfranchisement is one way of … keeping African-American people from voting.”). 

The North Carolina trial court, in other words, took a more clear-eyed and honest view of how white supremacy infected the state’s constitution and voting laws — a view that, as the Fifth Circuit demonstrated, more conservative courts are likely to downplay or ignore entirely.

The court also reaffirmed the especially robust protections provided by North Carolina’s constitution, finding violations of the state’s Free Elections and Equal Protection Clauses. “It is well-established,” the court said, “that North Carolina’s Equal Protection Clause provides greater protection for voting rights than federal equal protection provisions.” 

Now that case is before the state supreme court, and a decision could arrive before November. But even the court’s decision to hear the case was significant. Republican legislators wanted the majority-Republican intermediate court of appeals to block the trial court’s order restoring voting rights at least through the general election. But the supreme court intervened and took over the appeal before that could happen. 

In Florida, DeSantis’s flimsy voter fraud prosecutions may soon unravel completely, but that won’t undo the chilling effect of a governor intent on criminalizing honest voters. Judicial intervention, though, whether from the federal courts or state supreme courts, could bring people who have criminal convictions fully back into democracy.

Vacancies & Elections

Nevada Supreme Court Justice Abbi Silver, a Republican and former prosecutor, announced that she is resigning effective September 29. Her absence will create an even 3-3 party split on the court and allow Democratic Governor Steve Sisolak to appoint an interim justice for the remainder of Silver’s term. The State’s Judicial Selection Commission will vet applicants and send Sisolak three names to choose from.

Vacancies & Elections Roundup

Decision(s) Spotlight

The Tennessee Supreme Court reinstates a 5-year prison term for conduct that’s no longer a crime. In Tennessee, if the legislature reduces the penalty for a particular crime before someone is sentenced, then the new, lesser penalty applies. But what if the legislature repeals the crime entirely, effectively reducing the potential punishment to zero? Is zero penalty a “lesser penalty?” The Tennessee Supreme Court this week answered “no,” overturning a lower court and reinstating a 5-year prison sentence for something that is no longer a crime at all. 

To divine the answer, the opinion from former prosecutor Sarah Keeton Campbell (her first, according to Nashville attorney Daniel Horwtiz) parses grammar rules and no fewer than five different dictionaries, while ignoring the question of whether it is a wild miscarriage of justice and a complete embarrassment to the rule of law to lock someone away for a crime that doesn’t exist. 

Horwitz has more in this thread:

Maryland high court says the “thin blue line” stands between the accused and a fair trial. In October 2020, after a summer of nationwide protests against racist police violence, the sheriff in Kent County, Maryland ordered his deputies to wear facemasks with the “thin blue line” version of the American flag, a symbol of the pro-police Blue Lives Matter movement. In a decision this week, the Maryland Court of Appeals held that it violated the Sixth Amendment for a courtroom bailiff to wear the mask during the trial of a Black man accused of assault: 

The thin blue line flag conveys a pro-law enforcement message that bears on the criminal justice system. As such, it has no place in the courtroom in a criminal trial. We conclude that the display of the flag was inherently prejudicial in this case because it was court agents who wore the symbol and because of the fraught national atmosphere concerning policing at the time Smith’s trial went forward.

h/t Steve Klepper