# 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 year s 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 affi rm the summary judgment dismissing
their claim. United States Court of Appeals Fifth Circuit 

### FILED February 23, 2021
Lyle W. Cayce Clerk Case: 19-60632 Document: 00515753740 Page: 1 Date Filed: 02/23/2021No. 19-60632

2 I. From the Civil War until 1890, Mi ssissippi 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 specif ic 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 disc riminatory. The state made no secret of its motive: “Restrained by the fede ral constitution from discriminating against the negro race, the [1890 Missi ssippi 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 bl acks 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 de clared to be disq ualifications, while robbery and murder and ot her crimes in which viol ence 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 instance s, § 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 simp le majority of the whole electorate.

1 See T HE R EVISED C ODE OF THE S TATUTE L AWS OF THE S TATE OF M IS

SISSIPPI 86, 618 (1871) (disenfranchising, through ch. 5, art . II, § 343, anyone convicted of “infamous crimes,” defined in ch. 59, art. XI II, § 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”). Case: 19-60632 Document: 00515753740 Page: 2 Date Filed: 02/23/2021No. 19-60632

3 Harness and Karriem are black citize ns of Mississippi who have lost their right to vote because they have been convicted of crimes enumerated in § 241. They sued Mississippi’s Secretar y of State, contending that § 241
violates the Fourteenth Amendment be cause 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 th e 1890 provision was removed by the amendment processes in 1950 and 1968.

II. Before discussing the merits, “we mu st 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 suffere d 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 plaint iffs’ injury in fact, averring instead that their injury is tracea ble 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 re gistrar and election commissioners of each county shall . . . [r]eceive regu lar reports of . . . co nvictions for disenCase: 19-60632 Document: 00515753740 Page: 3 Date Filed: 02/23/2021No. 19-60632

4 franchising crimes that apply to voters registered in the county.” Id. § 23-15-165(2)(c). Thus, under Mississi ppi law, the office of the Secretary of State “ha[s] a role in” removing convic ted 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. “S uits for injunctive or declaratory relief are allowed against a st ate official acting in violation of federal law if there is a sufficient connecti on 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 Secret ary 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 “o riginal enactment was motivated by a desire to discriminate ag ainst 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). Case: 19-60632 Document: 00515753740 Page: 4 Date Filed: 02/23/2021No. 19-60632

5 continues to this day to have that effect.” 3 The plaintiffs contend that the portions of § 241 traceable to its original enactment in 1890 4 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 asso ciated with the original version.” We recognized that “§ 241 was enacted in an era when southern states discriminated against blacks by disenfranchi sing 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 cons idered “black” crimes. Amending § 241 was a deliberative process. Both houses of the state legislature had to approve the am endment 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, in cluding the revision. Because Mississippi’s procedure resulted bo th in 1950 and in 1968 in a re-enactment of § 241, each am endment superseded the previous provision and removed the di scriminatory 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 stat ute’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. Case: 19-60632 Document: 00515753740 Page: 5 Date Filed: 02/23/2021No. 19-60632

6 with the original version.

Id. (footnote and citations omitted). In other words, as stated in Cotton , “by amendment, a facially ne utral provision like § 241 might overcome its odious origin,” and § 241 did. Id.
The plaintiffs offer three re asons 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 th at voters did not have “the option of re-enacting or repealing the remainde r 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, instea d, 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 genera l resistance to desegregation in Mississippi at the times of the amendments, they “could not plausibly be considered steps taken to ‘remove[] the disc riminatory 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). Case: 19-60632 Document: 00515753740 Page: 6 Date Filed: 02/23/2021No. 19-60632

7 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 th at 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 discriminato ry 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 th at, after certain discriminatory disenfranchising offenses were removed from Alabama’s constitution, “the parts that remained,” were cure d of their taint, “because the amendments did not alter the intent with whic h the article, includi ng the parts that remained, had been adopted.” Id. at 2325. But Cotton had already distinguished the process of constitu tional change at issue in Hunter —courts’ declaring certain aspects of the prov ision 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 fo llowing judicial decisions, not to the parts of a provision that are historically traceable to an earlier enactment.
Under the rule of orderliness, “an in tervening 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 Ci r. 2013)). The statement in Perez is not enough.

AFFIRMED. Case: 19-60632 Document: 00515753740 Page: 7 Date Filed: 02/23/2021