Jim Crow lives again: Florida and Mississippi turn back the clock on voting rights

Felon disenfranchisement was a key 1890 "reform" meant to drive Black voters off the rolls. Now it's back

Published September 3, 2022 12:00PM (EDT)

Demonstrators participate in the March on Washington for Jobs and Freedom, Aug. 28, 1963. (Library of Congress/Interim Archives/Getty Images)
Demonstrators participate in the March on Washington for Jobs and Freedom, Aug. 28, 1963. (Library of Congress/Interim Archives/Getty Images)

Some 130 years ago, white lawmakers gathered in Jackson, Tallahassee, Richmond and other state capitals across the former Confederacy and rewrote their state constitutions to enshrine white supremacy.

Over the last week, Mississippi and Florida have offered modern-day examples of Jim Crow-era voter suppression that endures to this day — enacted by state legislatures, enabled by governors with White House ambitions and enforced by federal judges — and that continues to keep hundreds of thousands of citizens, disproportionately Black, from the polls.

Felony disenfranchisement, along with poll taxes, literacy tests and byzantine voter registration procedures, was among the most effective tools used by racist Southern legislators to effectively nullify the Reconstruction amendments to the U.S. Constitution across the old Confederacy and prevent Black citizens from actually exercising their supposed new rights. Lawmakers turned crimes they believed most likely to be committed by poor Black people — such as petty theft, burglary and forgery — into felonies, and then then stripped anyone convicted of those crimes from casting a ballot.

No one bothered to conceal their intent. "Let's tell the truth if it bursts the bottom of the universe," proclaimed Solomon Saladin Calhoon, president of the 1890 Mississippi convention. "We came here to exclude the Negro." The single Black delegate had been murdered days before, his bullet-riddled body left in the summer heat as a warning.

This violence and state-sanctioned suppression worked: Black turnout plummeted across the South, and prison populations soared. In Mississippi, the number of Black voters immediately dropped by 88 percent; fewer than 8,700 Black citizens remained on the rolls. In Florida, Black turnout tumbled to 11 percent, while the Black percentage of the prison population soared to 85 percent and beyond, more than half of them jailed on petty theft and larceny charges.

But this isn't a history lesson. These laws effectively remain in place today.

"We came here to exclude the Negro," said the president of Mississippi's 1890 constitutional convention. Last week a federal court found no proof that constitution was "motivated by discriminatory intent."

Last Wednesday, the U.S. Court of Appeals in the Fifth Circuit upheld the Mississippi constitutional provision, astonishingly finding no proof that it was "motivated by discriminatory intent," and decreeing that "any taint" associated with it "has been cured." Tell that to the 235,152 Mississippians who can't vote because of a felony conviction — more than 10 percent of the state's voting-age population, according to the Sentencing Project — a majority of them Black.

In Florida, meanwhile, a supermajority of voters repealed felony disenfranchisement in 2018 via a statewide initiative, only to have the gerrymandered GOP legislature replace it with a poll tax. The initiative overwhelmingly approved by voters re-enfranchised 1.4 million Floridians and created a second chance in a state where a felony conviction previously amounted to permanent civic death. But the new restrictions allowed just 67,000 people to register. The state also has been unable to tell the formerly incarcerated how much they owe, and unwilling to create any transparent database that shows who is eligible to register and who is not.

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Yet Florida's vote suppressors did not stop there. This week, a new elections police force began intimidating returning citizens who cast a ballot in 2020. Gov. Ron DeSantis took a "mission accomplished"-style victory lap when he announced that his new $1.1 million investigative force had arrested 20 Floridians with felony convictions for voting illegally during the 2020 election. One man was even rousted from sleep at 6 a.m., with helicopters circling overhead, and taken to jail in his underwear. 

But within a matter of hours it became clear that these were investigators in the Clouseau-style, and that there was as little merit to these GOP claims of voter fraud as usual. Many of those arrested said that local election officers, sheriff deputies, prison and parole officials or other county officials had told them they could vote, and that they had even received voter cards in the mail and been allowed to re-register. There was no intent to commit fraud, which the felony statute they are charged with violating requires. Florida officials told them they could vote. Then the DeSantis Keystone Kops prosecuted them for doing so.

Few, if any, charges from these ridiculously high-profile busts are likely to stick. But DeSantis promises that more will come anyway. This is an explicit threat of public arrest and humiliation, expensive legal bills and perhaps a return to prison. The message to these citizens is clear: If you exercise your civic voice, you risk becoming Florida's answer to Crystal Mason, the Texas grandmother sent back to prison for five years for casting a ballot she, too, was told by election officials she could cast.

The lead plaintiffs in Mississippi are an Army veteran who passed bad checks in the 1980s and a social worker who was convicted of grand larceny as a teenager, losing his right to vote before ever using it.

If officials in Florida ignored the public will and embraced felony disenfranchisement, federal judges in the Mississippi case ignored the state's ignominious past and its hateful present. The two lead plaintiffs who challenged the constitutionality of this Jim Crow provision include an Army veteran who passed bad checks in the 1980s and has not been able to vote since, and a social worker who was convicted of grand larceny as a teenager in the 1990s, losing his right to vote permanently before he ever had the chance to use it. Those affected are disproportionately Black, and as in Florida, only a handful of people have successfully petitioned the state for re-enfranchisement in the last 25 years. 

This matters not only because the U.S. is  one of the few democracies that refuses to grant a second chance at full citizenship to those with criminal convictions, or because these provisions are grounded in the racist soil of the old South. It shapes our nation today. Keep in mind that DeSantis won the governorship in 2018 by fewer than 33,000 votes, is running for re-election this fall, and clearly harbors presidential ambitions. In Mississippi, meanwhile, the incumbent Republican governor won in 2019 by just 45,000 votes — far fewer than the number of permanently disenfranchised people — and the state has not elected a Black official statewide in almost 100 years. The appeals court ruling arrived at roughly the same time that flooding rendered water undrinkable in the majority-Black city of Jackson, after years of disinvestment and the state's failure to help repair an aging system.

History and the calendar might suggest that 1890 was a completely different era. But contrary to Chief Justice John Roberts' assurance a decade ago that the South is a different place — in a case that began to unravel the Voting Rights Act, which he suggested was no longer necessary — not enough has changed. In some places and in some respects it remains 1890 today, and those in power are happy to continue turning the calendar backward.

By David Daley

David Daley, former editor-in-chief of Salon, is the author of the national bestseller “Ratf**ked: Why Your Vote Doesn’t Count” and “Unrigged: How Americans Are Battling Back to Save Democracy.”

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Commentary Felon Disenfranchisement Florida Mississippi Ron Desantis Voter Suppression Voting Rights