United States Court of Appeals 

for the Fifth Circuit 

No. 19-60632 

Roy Harness; Kamal Karriem, 

Plaintiffs—Appellants, 

versus

Delbert Hosemann, Secretary of State of Mississippi, 

Defendant—Appellee. 

Appeal from the United States District Court 

for the Southern District of Mississippi 

No. 3:17-CV-791 

Before Smith, Higginson, and Engelhardt, Circuit Judges.

Jerry E. Smith, Circuit Judge:

Roy Harness and Kamal Karriem lost the right to vote in Mississippi 

when they were convicted of crimes enumerated in § 241 of the Mississippi 

Constitution. They claim that list was enacted with racially discriminatory 

intent in violation of the Fourteenth Amendment. But they are not the first 

to make that claim—over twenty years ago, we held that amendments to 

§ 241 cured it of its discriminatory taint. Under the rule of orderliness, we 

are bound by that decision, so we affirm the summary judgment dismissing 

their claim. 

United States Court of Appeals 

Fifth Circuit 

FILED 

February 23, 2021 

Lyle W. Cayce 

Clerk 

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No. 19-60632 

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I. 

From the Civil War until 1890, Mississippi denied the franchise to 

those convicted of any crime punishable by imprisonment in the state penitentiary.1

 But in 1890, Mississippi replaced its generic description of disenfranchising crimes with a list of specific disenfranchising crimes: “bribery, 

burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy.” Miss. Const. art. XII, § 241 

(1890). Its reason for doing so was discriminatory. The state made no secret 

of its motive: “Restrained by the federal constitution from discriminating 

against the negro race, the [1890 Mississippi constitutional] convention discriminated against its characteristics and the offenses to which its weaker 

members were prone.” Ratliff v. Beale, 20 So. 865, 868 (Miss. 1896). The 

convention believed that blacks were “given rather to furtive offenses than 

to the robust crimes of the whites,” so “[b]urglary, theft, arson, and obtaining money under false pretenses were declared to be disqualifications, while 

robbery and murder and other crimes in which violence was the principal 

ingredient were not.” Id. 

Mississippi amended § 241 in 1950, removing burglary from the list, 

and again in 1968, adding murder and rape. 1950 Miss. Laws 959–60; 1968 

Miss. Laws 1074–75. In both instances, § 241 was amended on two-thirds of 

both legislative houses’ agreeing on the newly worded section, and then 

approval of the new section by a simple majority of the whole electorate. 

1 See THE REVISED CODE OF THE STATUTE LAWS OF THE STATE OF MISSISSIPPI 86, 618 (1871)(disenfranchising, through ch. 5, art. II, § 343, anyone convicted of 

“infamous crimes,” defined in ch. 59, art. XIII, § 2855, as “offences punished with death, 

or confinement in the penitentiary”); The Revised Code of the Statute Laws 

of the State of Mississippi 75, 796 (1880)(disenfranchising, through ch. 4, § 108, 

anyone convicted of “any felony,” defined in ch. 78, § 3104 as “offences punished with 

death, or confinement in the penitentiary”). 

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Harness and Karriem are black citizens of Mississippi who have lost 

their right to vote because they have been convicted of crimes enumerated in 

§ 241. They sued Mississippi’s Secretary of State, contending that § 241 

violates the Fourteenth Amendment because it was enacted with a discriminatory purpose. The district court entered summary judgment for the Secretary of State, reasoning that, per Cotton v. Fordice, 157 F.3d 388 (5th Cir. 

1998), the discriminatory taint of the 1890 provision was removed by the 

amendment processes in 1950 and 1968.

II. 

Before discussing the merits, “we must assure ourselves of our jurisdiction.” Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 

701, 718 (2007). The Secretary of State contends we lack jurisdiction on the 

basis of both standing and sovereign immunity.

A. 

“To establish standing under Article III of the Constitution, a plaintiff 

must demonstrate (1) that he or she suffered an injury in fact that is concrete, 

particularized, and actual or imminent, (2) that the injury was caused by the 

defendant, and (3) that the injury would likely be redressed by the requested 

judicial relief.” Thole v. U.S. Bank N.A., 140 S. Ct. 1615, 1618 (2020). The 

Secretary of State acknowledges the plaintiffs’ injury in fact, averring instead 

that their injury is traceable not to him but to the county officials responsible 

for maintaining voter rolls.

But that is not so. In Mississippi, “the ‘Statewide Elections Management System’ . . . constitute[s] the official record of registered voters in every 

county of the state.” Miss. Code Ann. § 23-15-165(1). “The Office of 

the Secretary of State . . . develop[s] and implement[s] the Statewide Elections Management System so that the registrar and election commissioners 

of each county shall . . . [r]eceive regular reports of . . . convictions for disenCase: 19-60632 Document: 00515753740 Page: 3 Date Filed: 02/23/2021
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franchising crimes that apply to voters registered in the county.” Id.

§ 23-15-165(2)(c). Thus, under Mississippi law, the office of the Secretary of 

State “ha[s] a role in” removing convicted felons from the voter rolls “and 

is in a position to redress it at least in part.”2

B. 

 For a similar reason, the Secretary of State’s objection that the suit is 

barred by sovereign immunity cannot be sustained. “Suits for injunctive or 

declaratory relief are allowed against a state official acting in violation of federal law if there is a sufficient connection to enforcing an allegedly unconstitutional law.” Tex. Democratic Party, 978 F.3d at 179 (quotation omitted). 

We have “not spoken with conviction about all relevant details of the ‘connection’ requirement,” but if there is a “a ‘special relationship’ between the 

state actor and the challenged statute,” there is certainly a sufficient connection. Id. That is the case here. The Secretary of State is charged by state law 

with “develop[ing] and implement[ing] the Statewide Elections Management System,” which serves as the “official record of registered voters in 

every county of the state.” Miss. Code Ann. § 23-15-165(2), (1). 

County-level officials may also exercise control over voter rolls, but that does 

not reduce the Secretary of State’s connection to the enforcement of § 241. 

III. 

 States are permitted to disenfranchise felons. U.S. Const. amend 

XIV, § 2; Richardson v. Ramirez, 418 U.S. 24, 54 (1974). But the Constitution 

forbids such provisions where their “original enactment was motivated by a 

desire to discriminate against blacks on account of race and the [provision] 

2 Tex. Democratic Party v. Abbott, 978 F.3d 168, 178 (5th Cir. 2020) (opining on 

Texas’s election law), cert. denied, 2021 WL 78479 (U.S. Jan. 11, 2021) (No. 19–1389). 

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continues to this day to have that effect.”3 The plaintiffs contend that the 

portions of § 241 traceable to its original enactment in 18904 are unconstitutional because they were enacted with that precise unconstitutional motive. 

 We do not write on a blank slate. In Cotton, 157 F.3d at 391, we held 

that amendments to § 241 in 1950 and 1968 “superseded the [1890] provision 

and removed the discriminatory taint associated with the original version.” 

We recognized that “§ 241 was enacted in an era when southern states discriminated against blacks by disenfranchising convicts for crimes that, it was 

thought, were committed primarily by blacks” and that Mississippi selected 

the crimes listed in § 241 for that reason. Id. On the other hand, 

 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 were not considered “black” crimes. 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 popular election. 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 1968 in a 

re-enactment of § 241, each amendment superseded the previous provision and removed the discriminatory taint associated 

3 Hunter v. Underwood, 471 U.S. 222, 233 (1985); see also United States v. Fordice, 

505 U.S. 717, 728 (1992) (requiring states to “eradicate[] policies and practices traceable 

to” their prior racially-motivated actions); Ramos v. Louisiana, 140 S. Ct. 1390, 1410 (2020) 

(Sotomayor, J., concurring) (noting that a statute’s legacy of racial animus may persist so 

long as the “States’ legislatures never truly grappled with the laws’ sordid history in reenacting them”). 

4

 That is, the crimes enumerated in § 241 besides rape and murder, which were 

added in 1968.

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with the original version. 

Id. (footnote and citations omitted). In other words, as stated in Cotton, “by 

amendment, a facially neutral provision like § 241 might overcome its odious 

origin,” and § 241 did. Id. 

 The plaintiffs offer three reasons we are not bound by Cotton, but none 

works. First, the plaintiffs suggest that evidence of the actual ballots with 

which voters approved the 1950 and 1968 amendments, and introduced for 

the first time in this case demonstrate that voters did not have “the option of 

re-enacting or repealing the remainder of the original list of disqualifying 

crimes. Instead, their only options were to vote ‘For Amendment’ or 

‘Against Amendment.’” But Cotton relied not on the particular options with 

which voters were presented but, instead, on the “deliberative process” used 

to amend § 241. Cotton, 157 F.3d at 391.5

 Second, the plaintiffs maintain that because of the racial composition 

of the Mississippi legislatures and general resistance to desegregation in Mississippi at the times of the amendments, they “could not plausibly be considered steps taken to ‘remove[] the discriminatory taint associated with the 

original [1890] version.’” (quoting Cotton, 157 F.3d at 391). Cotton did leave 

5

 Recently, Cotton’s reasoning was described as relying on the deliberative process: 

 Both [the 1950 and 1968] amendments involved, first, a deliberative 

process that required two-thirds votes of both houses of the state legislature 

and, second, assent of the majority of Mississippi voters to ‘the entire 

provision, including the revision.’ Cotton, 157 F.3d at 391–92. In light of 

that process, we explained that section 241 in its then-present form could be 

considered unconstitutional only if the amendments were themselves 

adopted with discriminatory purpose. 

Veasey v. Abbott, 888 F.3d 792, 821 (5th Cir. 2018) (Graves, J., concurring in part and 

dissenting in part) (emphasis added). 

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open the possibility that § 241 would be unconstitutional “if the amendments 

were adopted out of a desire to discriminate against blacks.” Id. at 392. But 

the plaintiffs don’t offer any evidence that that was so besides general Mississippi history fully available to the Cotton court. And, despite that history, 

the Cotton panel was convinced that the 1968 amendment adding crimes that 

were excluded in 1890 because “they were not considered ‘black’ crimes” 

was sufficient to cure the discriminatory taint of the entire provision. Id.

at 391. 

 Finally, the plaintiffs posit that Cotton was abrogated by Abbott v. 

Perez, 138 S. Ct. 2305 (2018), at least as to the parts of § 241 traceable to 1890. 

Perez described Hunter as rejecting the theory that, after certain discriminatory disenfranchising offenses were removed from Alabama’s constitution, 

“the parts that remained,” were cured of their taint, “because the amendments did not alter the intent with which the article, including the parts that 

remained, had been adopted.” Id. at 2325. But Cotton had already distinguished the process of constitutional change at issue in Hunter—courts’ 

declaring certain aspects of the provision unconstitutional—from the deliberative legislative amendments at issue here. Cotton, 157 F.3d at 391 n.8. 

Perez’s phrase “the parts that remained” refers to the parts of the Alabama 

constitution that were still enforceable following judicial decisions, not to the 

parts of a provision that are historically traceable to an earlier enactment. 

Under the rule of orderliness, “an intervening change in the law must 

be unequivocal, not a mere ‘hint’ of how the Court might rule in the future.” 

United States v. Tanksley, 848 F.3d 347, 350 (5th Cir. 2017) (quoting United 

States v. Alcantar, 733 F.3d 143, 146 (5th Cir. 2013)). The statement in Perez

is not enough. 

AFFIRMED. 

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