1 This appeal originally included both Keith Brown and Jarviou s Cotton. Cotton’s appeal

,

however, was severed and dismissed pursuant to 28 U.S.C. § 1915(g). UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_______________________

No. 97-60275

_______________________

Jarvious Cotton, et al.,

Plaintiffs,

Keith Brown,

Plaintiff-Appellant,

versus

Kirk Fordice, et al.,

Defendants-Appellees.

______________________________________________________________________________

Appeal from the United States District Court

for the Southern District of Mississippi

______________________________________________________________________________ October 15, 1998

Before GARWOOD, JONES, and WIENER, Circuit Judges.

EDITH H. JONES, Circuit Judge:

Appellant Keith Brown 1 is serving a sentence for armed robbery in a Mississippi state

penitentiary. He wants to vote and complains, via a § 1983 suit, that the appellees unconstitutionally

disenfran chised him. The Mississippi Constitution denies the ballot to any person “convicted of

murder, rape, bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery,2

embezzlement or bigamy.” M I SS

. C ONST

, art. XII, § 241 (1890). Brown argues that because t he

Mississippi Constitution does not expressly list ‘armed robbery’ as a disenfranchising crime, he has

retained the right to vote. Not only did the district court hold that the term ‘theft’ in § 241 includes

the crime of ‘armed robbery’; the court also rejected his alternate contention that the disenfranchising

provision is unconstitutional because it was enacted with racially discriminatory motives. S ee Hunter

v. Underwood , 471 U.S. 222, 105 S. Ct. 1916 (1985). Although it appears that the constitutional

disqualifying provision originally intended to discriminate against black felons, its recent re-enactment

by the people of Mississippi has not been shown to bear that taint. We affirm.

II. Standard of Review

A district court’s grant of judgment as a matter of law is proper if “there is no genuine

issue as t o any mat erial fact and . . . the moving party is entitled to judgment as a matter of law.”

F ED

. R. C IV

. P. 56(c); se e also Celotex Corp. v. Catrett

, 477 U.S. 317, 322-24, 106 S. Ct. 2548,

2552-53 (1986). Using the same standard on appellate review, all fact questions must be viewed in

the light most favorable to the non-moving party, and questions of law are reviewed de novo

. H assan

v. Lubbock Indep. Sch. Dist.

, 55 F.3d 1075, 1079 (5th Cir.), cert. denied

, 516 U.S. 995, 116 S. Ct.

532 (1995). Once the moving party meets its burden, the burden shifts to the non-moving party to

produce evidence sufficient to show the existence of a material fact. See id.

III. Discussion

Brown first argues that § 241 does not apply to him because it disenfranchises persons

convicted of ‘theft’ and not those convicted of ‘armed robbery.’ The district court held, however,

that ‘armed robbery’ is included in Mississippi’s definition of “theft” because “robbery is the highest

category of theft.” The court’s conclusion is persuasive.2 Theft is the “popular term for larceny,” B LACKS L AW D ICTIONARY 1477 (6th ed. 1990).

3 See M ISS

. C ODE A NN . § 97-17-41 (Supp. 1998).

4 See id. at § 97-17-70 (1972).

5 See id. at § 97-3-73.

6 See id. at § 97-3-82.

3 Neither the Mississippi caselaw or statutes resolve whether ‘theft,’ as used in § 241,

includes the crime of ‘armed robbery.’ The federal courts’ task is to determine as best we can how

[the Mississippi Supreme Court] would rule if the issue were before it.” F ederal Deposit Ins. Corp.

v. Abraham, 137 F.3d 264, 268 (5th Cir. 1998) (citation omitted). In law, ‘theft’ is a general label

for statutorily created crimes invo lving an unlawful taking. 2 At common law, theft was defined as

“the felonious taking and carrying away of the personal property of another with intent to convert it

to the use of the taker wi thout the consent of the owner.” M cLaughlin v. City of Canton

, 947 F.

Supp. 954, 970 n.18 (S.D. Miss. 1995) (quoting 52 A C.J.S. Larceny § 1(2), at 398 (1968)).

Similarly, Mississippi defines ‘larceny’ as “taking and carrying away, feloniously, the personal

property of another.” M I SS

. C ODE A NN

. § 97-17-41 (Su p p. 1998). The Mississippi Code labels

various theft crimes as larceny, 3 receiving stolen property

, 4 robbery, 5 extortion, 6 and so forth. At least

one other court has broadly interpreted § 241 t o co nclude that ‘theft’ is an “umbrella term” to

describe those crimes that involve a “wrongful taking.” M cLaughlin

, 947 F. Supp. 954, 970 n.18

(S.D. Miss. 1995) (citation omitted). As there is no crime labeled ‘theft’ in Mississippi, the term in

§ 241 is only meaningful it if includes the larceny crimes, and thus includes armed robbery.

We also find it persuasive that in Mississippi, larceny (common law theft) is a lesser

included offense of robbery. S ee Holly v. State

, 671 So.2d 32, 45 (Miss.), c ert. de nied 518 U.S.4

1025, 516 S. Ct. 2565 (1996) (“[O]nce the State proved the elements of robbery, it was not required

to offer any additional proof to establish the charge of grand larceny.”). Thus, for double jeopardy

purposes, the relatedness of the crimes is clear. S ee id. at 44. Because the term ‘theft’ in § 241 must

generically include a conviction for ‘armed robbery,’ Brown is disenfranchised under Mississippi law.

Appellant next argues that § 241 is unconstitutional because it was originally drafted

with the intent to disenfranchise blacks. Section 2 of the Fourteenth Amendment does not prohibit

states from disenfranchising convicted felons. S ee Richardson v. Ramirez

, 418 U.S. 24, 54, 94 S. Ct.

2655, 2671 (1974). A state law prohibiting exercise of the vote, however, is unconstitutional if “its

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.” H unter

, 471 U.S. at 233, 105 S. Ct. at 1922.

Once a plaint iff proves that racial discrimination was a motivating factor behind the enactment of the

law, “the burden shifts to the law’s defenders to demonstrate that the law would have been enacted

without this factor.” I d. at 228, 1920 (citing Mt. Healthy City Bd. of Educ. v. Doyle

, 429 U.S. 274,

287, 97 S. Ct. 568, 576 (1977)).

The state defendants do not dispute that § 241 was enacted in a era when southern

states discriminated against blacks by disenfranchising convicts for crimes that, it was thought, were

committed pri marily by blacks. S ee Hunter

, 471 U.S. at 229-31, 105 S. Ct. at 1920-22; Ratliff v.

Beale

, 20 So. at 868; M cLaughlin

, 947 F. Supp. at 976-78. Mississippi’s complicity in this practice

was recognized by its Supreme Court six years after the original adopti on of § 241. S ee R at liff

, 20

So. 868; see also McLaughlin

, 947 F. Supp. at 976-78. Although § 241 was facially neutral and

technically in compliance with the Fourteenth Amendment, the s t at e was motivated by a desire to7 The Supreme Court left open whether such constitutional alterations could cure an originally

defective constitutional provision. See H unter

, 471 U.S. at 232-33, 105 S. Ct. 1922. In H unter

, the

St at e of Alabama argued that its disenfranchising clause was constitutional because each of the

obviously discriminatory crimes contained in the original prov isio n had already been struck by the

courts. The Court declined to address the issue and instead reiterated that Alabama’s provision was

unconstitutional because it was originally enacted o ut o f a desire to racially discriminate and the

discriminatory effect still existed.

5 discriminate against blacks. C f. Williams v. State

, 170 U.S. 213, 18 S. Ct. 583 (1898) (finding that

§ 241 was constitutional because it was facially race neutral).

Were this the end of the story, we would be bound by Hunter , which, construing an

Alabama provision of similar age and intent, held it violative of equal protecti on. H unter

, however,

left open the possibility that by amendment, a facially neutral provision like § 241 might overcome

its odious origin. 7 That is what has happened here.

Section 241, as enacted in 1890, was amended in 1950, removing ‘burglary’ from the

list of disenfranchising crimes. Then, in 1968, the state broadened the provision by adding ‘murder’

and ‘rape’--crimes historically excluded from the list because they wer e not considered “bl ack”

crimes. See McLaughlin , 947 F. Supp. at 977. Amending § 241 was a deliberative process. Both

houses of the state legislature had to approve the amendment by a two-thirds vote. The Mississippi

Secretary of State was then required to publish a full-text version of § 241, as revised, at least two

weeks before the po pular election. S ee M ISS

. C ODE A NN

. § 4211 (1942); H. Con. Res. 10 (Miss.

1950); H. Con. R. 5 (Miss. 1968). Finally, a majority of the voters had to approve the entire

provision, including the revision. Because Mississippi’s procedure resulted both in 1950 and in 19688 The changes made to § 241 are fundamentally different from those made to t he Alabama

provision discussed in Hunter

. The voters of Mississippi willingly broadened § 241 through the

constitutional amendment process to include violent criminal acts not previously included in the list

o f disenfranchising crimes. The Alabama alterations, on the other hand, were made thro ugh t he

judicial process of striking certain crimes which had the effect of limiting the coverage o f t he

disenfranchising clause. S ee Hunter 471 U.S . at 228, 105 S. Ct. 1920. Onl y these l atter,

“involuntary” amendments were discounted by the Supreme Court.

9 We also note that Brown offered no evidence, and the state did not concede, that the effect

of § 241 is discriminatory against blacks, yet Hunter also requires unconstitutional effects as well as

motive. Supra

.

6 in a re-enactment of § 241, each amendment superseded the previous provision and removed the

discriminatory taint associated with the original version. 8

Viewed in this light, § 241 as it presently exists is unconstit ut ional only if the

amendments were adopted out of a desire to discriminate against blacks. S ee Hunter

, 471 U.S. at

228, 105 S. Ct. at 1920. Brown has offered no such proof regarding the current version of § 241;

he relies exclusively on the Mississippi Supreme Court’s now-irrelevant admission in Ratliff that the

original version of § 241 was adopted for the purpose of discriminating against blacks.

Because the motives of Mississippi’s legislature and voters when § 241 was re-enacted

are not impugned, and because § 241 now seeks only to penalize all criminals convicted of certain

crimes, Hunter does not condemn § 241. 9

For these reasons, the district court’s judgment is AFFIRMED.