Harness v. Watson

1 Cite as: 600 U. S. ____ (2023)
J
ACKSON, J., dissenting
SUPREME COURT OF THE UNITED STATES
ROY HARNESS, ET AL. v. MICHAEL WATSON,
MISSISSIPPI SECRETARY OF STATE
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 22–412. Decided June 30, 2023
The petition for a writ of certiorari is denied.
J
USTICE JACKSON, with whom JUSTICE SOTOMAYOR joins,
dissenting from the denial of certiorari.
The President of the 1890 Mississippi Constitutional
Convention said it plain: “Let us tell the truth if it bursts
the bottom of the Universe . . . We came here to exclude the
negro. Nothing short of this will answer.”
1
To further that
agenda, the Convention placed nine crimes in §241 of the
State’s Constitution as bases for disenfranchisement, be-
lieving that more Black people would be convicted of those
crimes than White people. See Williams v. Mississippi, 170
U. S. 213, 222–223 (1898) (acknowledging that purpose, but
expressing “no concern” regarding the Conventioneers’ ob-
jective); Ratliff v. Beale, 74 Miss. 247, 265, 20 So. 865, 868
(1896) (similar); 47 F. 4th 296, 300 (CA5 2022) (per curiam)
(en banc) (case below) (recognizing §241’s discriminatory
aim).
Eight of those crimes have remained in §241 since 1890,
without interruption. Thus, the Convention’s avowed goals
continue to be realized via its chosen mechanism: Today
(just as in the Convention’s aftermath), thousands of Black
Mississippians cannot vote due to §241’s operation.
2
Peti-
——————
1
N. McMillen, Dark Journey: Black Mississippians in the Age of Jim
Crow 41 (1989) (McMillen) (internal quotation marks omitted); see also
id., at 39–43.
2
See McMillen 44–48; Report of Dov Rothman in No. 3:17–cv–00791

2 HARNESS v. WATSON
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ACKSON, J., dissenting
tioners brought this legal action to challenge §241’s contin-
ued use of the eight crimes as bases for felon disenfran-
chisement. 47 F. 4th, at 302.
The Court of Appeals for the Fifth Circuit properly recog-
nized that, under this Court’s settled precedent, the mere
passage of time cannot insulate from constitutional chal-
lenge a law that was invidious at its inception. See id., at
300, 304. That court could not escape acknowledging the
similarities between this case and Hunter v. Underwood,
471 U. S. 222 (1985) (Rehnquist, J., for the Court), in which
this Court unanimously invalidated an Alabama constitu-
tional provision passed in 1901 because its “enactment was
motivated by a desire to discriminate against blacks on ac-
count of race” and it “continue[d] to th[at] day to have that
effect.” Id., at 233. But en route to affirming the District
Court’s grant of summary judgment against petitioners, the
Fifth Circuit proceeded to make two egregious analytical
errors that ought to be corrected.
First, it seized upon the idea that §241 had somehow been
“reenacted” in full when the citizens of Mississippi twice
amended parts of that provision years later. 47 F. 4th, at
306. To be sure, later amendments changed bases for dis-
enfranchisement other than the eight at issue here: In
1950, burglary was removed from the list of disenfranchis-
ing crimes via the State’s amendment processes, and, in
1968, murder and rape were added via the same processes.
See id., at 300–301. But, for federal constitutional pur-
poses, the State never enacted any “new” version of the orig-
inal eight grounds for disenfranchisement. In 1950, voters
could have either removed burglary from §241 or left §241
unchanged. So, too, in 1968—voters could have added mur-
der and rape or left §241 unchanged. Id., at 319, 323–324
(Graves, J., dissenting). No other change to the original list
——————
(SD Miss., Oct. 25, 2018), ECF Doc. 77–9, p. 6, ¶10.

3 Cite as: 600 U. S. ____ (2023)
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ACKSON, J., dissenting
of crimes was ever on offer. Therefore, the same discrimi-
natory list of crimes that the 1890 Constitution’s ratifiers
“ma[d]e into law by authoritative act” operates to disen-
franchise Mississippians who commit those crimes today.
Black’s Law Dictionary 666 (11th ed. 2019) (defining “en-
act”).
Accordingly, the Fifth Circuit was wrong to believe that
the amendments rendered the 1890 Convention’s discrimi-
natory purpose irrelevant and to reject petitioners’ claim on
the ground that they could show no discriminatory purpose,
see 47 F. 4th, at 307, 309–310. Quite to the contrary, here,
just as in Hunter, the “remaining crimes” from §241’s per-
nicious origin still work the very harm the 1890 Convention
intended—denying Black Mississippians the vote. 471
U. S., at 232–233.
Second, the Fifth Circuit’s alternative holding—that even
if §241 is tainted by discriminatory purpose, petitioners
have no viable claim because the disenfranchisement pro-
vision would have been adopted anyway, see 47 F. 4th, at
310–311—was equally misguided. Under our well-estab-
lished precedents, in order to defeat a challenge to a state
law that was motivated by discriminatory purpose, the
State bears the burden of showing that “the law would have
been enacted without” that purpose. Hunter, 471 U. S., at
228. Here, the Fifth Circuit assumed for argument’s sake
that petitioners had shown discriminatory purpose, but
concluded that the State had discharged its burden because
certain legislators and a state task force considered recom-
mending changes to §241’s list of crimes in the 1980s. 47 F.
4th, at 302, 310. And the Fifth Circuit held that the State’s
burden was satisfied even though that consideration never
yielded an actual change to §241. See id., at 310–311.
This alternative holding was infused with the faulty
“reenactment” rationale, insofar as the Fifth Circuit as-
sumed, arguendo, “discriminatory intent arising from the
1968 amendment.” Id., at 310 (emphasis added). Moreover,

4 HARNESS v. WATSON
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ACKSON, J., dissenting
and even more fundamentally, the Fifth Circuit misread (or
misunderstood) this Court’s holdings about the nature of
the necessary inquiry. The burden is not to demonstrate a
theoretical possibility that any legislature could have
adopted the enactment at issue absent discrimination. Ra-
ther, courts must assess whether the discriminatory actor
(here, the 1890 Convention) “would have” enacted the pro-
vision sans the discriminatory intent that was its actual
motivation. Hunter, 471 U. S., at 228; see also Arlington
Heights v. Metropolitan Housing Development Corp., 429
U. S. 252, 270–271, and n. 21 (1977) (State’s “burden” is to
“establis[h] that the same decision would have resulted”
(emphasis added)). And that question cannot possibly be
answered by looking to the unconsummated considerations
of legislative actors a near century after the enactment.
In sum, I would have granted this petition to correct the
Fifth Circuit’s clear and constitutionally momentous errors,
and the Court could have done so in a straightforward and
narrow (but significant) manner. All that is needed to re-
solve this dispute is (1) the indisputable fact that §241’s dis-
enfranchisement provisions were adopted for an illicit dis-
criminatory purpose, and (2) the (unusually undeniable)
understanding that, far from being subsequently “reen-
acted,” §241 has persisted, without change—doing the
harmful work that it was designed to do—ever since its in-
itial invidious inception.
* * *
The other day, this Court declared that the “‘Constitu-
tion deals with substance, not shadows,’ and the [constitu-
tional] prohibition against racial discrimination is ‘levelled
at the thing, not the name.’” Students for Fair Admissions
v. President and Fellows of Harvard College, 600 U. S. ___,
___–___ (2023) (slip op., at 39–40). There are no shadows
in §241, only the most toxic of substances.
Thus, the majority’s decision not to take up this matter is

5 Cite as: 600 U. S. ____ (2023)
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ACKSON, J., dissenting
doubly unfortunate. We were asked to address this problem
125 years ago in Williams, and declined to do so. See 170
U. S., at 219–223, 225 (rejecting challenge to §241). And
this Court blinks again today. So, at the same time that the
Court undertakes to slay other giants, Mississippians can
only hope that they will not have to wait another century
for a judicial knight-errant. Constitutional wrongs do not
right themselves. With its failure to take action, the Court
has missed yet another opportunity to learn from its mis-
takes.