Gabriel J. Chin, Rehabilitating Unconstitutional Statutes: An Analysis of Cotton v. Fordice, 157 F.3d 388 (5th Cir. 1998), 71 U. Cin. L. Rev. 421 (2003).
Abstract: Among the former Confederate states, Mississippi was a leader in disenfranchising African Americans. The Mississippi Constitution of 1890 was filled with provisions designed “to obstruct the exercise of the franchise by the Negro race” as Mississippi’s supreme court explained in 1896. In 1998, the 5th Circuit held that the felon disenfranchisement provision was constitutional in spite of its tainted origins. They found that the plaintiff, an incarcerated prisoner acting pro se, had failed to make his case, and therefore that a provision which disenfranchises 28% of African American men in Mississippi could continue in force. While the court recognized that the provision was unconstitutional when adopted, the court reasoned that two amendments, a restriction on the provision in 1950 and an expansion in 1968, purged any discriminatory intent, and therefore any constitutional infirmity. This essay challenges the reasoning and conclusion.
The 5th Circuit treated the amendment process as creating an entirely new provision, with a fresh start to the legislative history. The court, however, did not account for the interpretive principle that amendments do not change the meaning of the unamended portions of a statute, or the tremendous practical problems that would result if technical recodification or revision were deemed to cut off prior understandings of a statute.
The 5th Circuit also regarded the acts of the Mississippi legislature in proposing amendments in 1950 and 1968 and of the Mississippi voters in approving them as presumptively non-discriminatory. The problem with this is that Mississippi had the worst record of excluding African Americans from the franchise of any state in the Union; about one percent of voting-age African Americans were registered in 1950; no African Americans served in the legislature between 1892 and 1967; from 1968 to 1975, there was one. As a matter of historical fact, the court’s attribution of anti-racist motives to Mississippi decisionmakers in this period seems unjustifiable.
There is an additional problem with the court’s analysis. They hold that a provision unconstitutionally disenfranchising voters because of their race can be validated in an election in which those voters are unconstitutionally prevented from participating.
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