So much for the “colour blind” society proclaimed by the Supreme Court in its ruling June 30 to outlaw affirmative action policies at public universities. The same day, but under the radar of the mainstream news media and public, the unelected body with lifetime terms made its full objective crystal clear.
The six far-right majority Justices of the Court upheld a century-old Mississippi amendment to its state constitution that was used during the “Jim Crow” segregationist era to deny Black people in the state the right to vote and fully participate as equals. The president of the 1890 constitutional convention that adopted the amendment made it clear, saying: “We came here to exclude the Negro.”
By a six-to-three vote, the Court rejected hearing a challenge to the amendment. Four Justices are required to vote in favour for a case to be heard.
The state argued that the provision is no longer tainted by the racist intentions of its original authors.
Why then leave it in the constitution?
Majority’s hypocrisy
The court's decision prompted a sharp dissenting opinion from Justice, Ketanji Brown Jackson — the first Black woman appointed to the Court. She was joined by liberal Justice Sonia Sotomayor, the first Latina on the court.
Jackson exposed the Court majority’s hypocrisy, and contrasted its decision with the ban on affirmative action in college admissions.
If the court viewed affirmative action as race discrimination, she said, then the Mississippi measure must be seen similarly.
"Mississippians can only hope they will not have to wait another century for another judicial knight-errant," she wrote. "Constitutional wrongs do not right themselves."
The measure was first enacted at a time when whites in the Deep South were fighting back against post-Civil War efforts to ensure formerly enslaved Black people had equal rights.
Getting around the 14th Amendment
The 14th Amendment, adopted in the post-Civil War Reconstruction period, bars states from limiting the right to vote because of race.
To get around it, Southern states adopted various laws and practices that de facto outlawed Black voting rights.
Mississippi’s constitutional amendment effectively prevents Black people from voting, by removing voting rights from felons convicted of what were thought to be "Black crimes", but declines to do the same for "white crimes”.
Other Southern states adopted laws with the same effect.
Innocent Black people were convicted under the so-called “Black Codes”, which kept former freed people as second class citizens to whites.
So-called “separate but equal” laws were passed. Black people in the southern states were segregated — including in where they could get medical care and education — for nearly a century until the mass civil rights movement won.
Today, those convicted of one of 23 felonies permanently lose the right to vote in Mississippi. This has a staggering effect. Sixteen percent of the Black voting-age population (and 10% of overall voters) are barred from casting a ballot, according to The Sentencing Project.
Mississippi’s population is about 38% Black, but Black people make up more than half of those disenfranchised.
Political decision
Once a person loses their right to vote, it is essentially impossible to get it back.
A disenfranchised person must get the legislature to approve an individual bill on their behalf by a super majority in both chambers, for the governor to approve the bill.
There are no online instructions or applications, and lawmakers can deny an application for any reason.
Disenfranchised people rarely make it through the process. From 1997‒2022, on average, only seven people were successful each year, according to Blake Feldman, a criminal justice researcher in Mississippi.
Prior to reaching the Supreme Court, a federal district judge and the US court of appeals for the Fifth Circuit each upheld Mississippi’s policy. In its decision, the Fifth Circuit court claimed that modifications to the policy in 1950 and 1968 got rid of any discrimination.
In 1974, the Supreme Court upheld that states could bar voting rights to those convicted of felonies. Since no Justice wrote a reason for not hearing the Mississippi appeal, it is assumed they saw it fitting alongside its earlier stance.
Jackson and Sotomayor were the only two justices who declared their dissent. In her opinion, Jackson argued the Fifth Circuit Court had committed “two egregious analytical errors that ought to be corrected”.
The Mississippi case shows that the Court’s decision was political and not based on the Constitution.
Once again, the basic democratic rights of Black people are denied.