Mississippi College

Law Review

Harness v. Hosemann: Does § 241 of the Mississippi Constitution Violate the Fourteenth Amendment?

Written by: Katelyn Pearson

Summary of the Case

Roy Harness and Kamel Karriem, as a result of their convictions of crimes under § 241 of the Mississippi Constitution, lost their right to vote within the State of Mississippi.  Harness and Karriem brought an action against Mississippi’s Secretary of State, Delbert Hosemann, claiming that the list of crimes in § 241 were enacted with discriminatory intent, therefore, violated the Fourteenth Amendment. Section 241 of the Mississippi Constitution states the following:

“Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefore and is otherwise a qualified elector.”  (Harness v. Hosemann, No. 19-60632 (5th Cir. 2021)).

Harness and Karriem, who are black Mississippians, had both been convicted of crimes listed within § 241 and as a result lost their right to vote in the State of Mississippi.  This cause of action was originally brought in the district court where the court granted summary judgment for the Secretary of State.  The court reasoned that “the discriminatory taint of the 1890 provision was removed by the amendment processes in 1950 and 1968.”  (Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998)).  After that holding in the district, this appeal to the Fifth Circuit followed.

Jurisdictional Issues

The Secretary of State argued that the Fifth Circuit lacked jurisdiction because of lack of standing and sovereign immunity.  On the issue of standing, the Secretary of State argued that even though there was injury in fact, it was not traceable back to him.  If this were true, they would not have standing.  The Fifth Circuit disagreed stating that he was a part of the process to remove convicted felons from voter rolls, therefore, there was standing.  On this issue of sovereign immunity, the court held that it was not applicable because “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  v.  Abbott, 978  F.3d  168, 179 (5th  Cir.  2020)).  Here, the Secretary of State is part of the enforcement of § 241, therefore, the suit here is allowed.  Thus, jurisdiction was found here despite the Secretary of State’s arguments.

Outcome

States have permission to disenfranchise felons, but it is forbidden when the provisions are enacted with discriminatory intent.  (U.S. Const. amend XIV, § 2; Richardson v. Ramirez, 418 U.S. 24, 54 (1974); Hunter v. Underwood, 471 U.S. 222, 233 (1985)).  The plaintiffs’ argued that § 241 was enacted with “precise unconstitutional motive.”  The court recognized that the crimes chosen for this statute were chosen because they were primarily committed by black citizens, but the statute was amended in 1950 and 1968 to remove any discriminatory taint. This was done by removing “burglary” in 1950 and adding “murder” and rape” in 1968.  The Fifth Circuit found that the precedent set forth in Cotton v. Fordice was applicable to the facts of this case and the statute was no longer unconstitutional because of the later amendments.