The right of dissent

Judge James E. Graves, Jr. Photo courtesy of the Offices of Judge James E. Graves, Jr.

By Christopher Young,

Contributing Writer,

About six months ago I was discussing the racial composition of the Supreme Court of Mississippi with a very wise man. It has nine members; eight white and one black – converting to 88.88% white and 11.11% black. It’s been that way since Judge Reuben V. Anderson was appointed to the Supreme Court in 1985 – the first African American in the court’s history. Progress takes it’s time in Mississippi. The racial composition of this – court of last resort – remains unchanged 37 years later.

When I highlighted that our state is nearly 40% African American, inferring the inherent inequity in this institution of justice, my benefactor of wisdom replied – that’s why the quality of the dissent is so critically important. 

And so it is, not just here, but throughout the country. At the end of August, a dissent was filed in the United States Court of Appeals for the Fifth Circuit. This court covers Mississippi, Texas and Louisiana, as well as the Canal Zone. The case before the court was No. 19-60632, Roy Harness and Kamal Karriem v. Michael Watson, Secretary of State of Mississippi, centered on whether the current version of the Mississippi Constitution, Article 12, Section 241 violates the Equal Protection Clause of the United States Constitution. This provision had been upheld in 1998 – Cotton v. Fordice and was considered binding, yet the panel of seventeen justices voted to reconsider. The court found that Cotton’s result was consistent with the seminal Supreme Court decision in Hunter v. Underwood.

Article 12. Franchise, Section 241, reads as follows: “Every male inhabitant of this State, except idiots, insane persons and Indians not taxed, who is a citizen of the United States, twenty-one years old and upwards, who has resided in this State two years, and one year in the election district, 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 bribery, burglary, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy, and who has paid, on or before the first day of February of the year in which he shall offer to vote, all taxes which may have been legally required of him, and which he has had an opportunity of paying according to law, for the two preceding years, and who shall produce to the officers holding the election satisfactory evidence that he has paid said taxes, is declared to be a qualified elector; but any minister of the gospel in charge of an organized church shall be entitled to vote after six months residence in the election district, if otherwise qualified.”

Judge James E. Graves Jr. has served on the Fifth Circuit Court of Appeals since 2011, following his service on the Mississippi Supreme Court from 2001 to 2011. He was born in Hinds County in 1953, graduated from Millsaps College in 1975 and went on to Syracuse University for a Juris Doctor in 1980, and a Master of Public Administration in 1981. 

In Case No.19-60632, he wrote a 47 page dissent. His introduction began by quoting a statement made in 1890 by James K. Vardaman, who went on to be Governor of Mississippi and a U.S. Senator: “There is no use to equivocate or lie about the matter.…Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the nigger from politics….In Mississippi we have in our constitution legislated against the racial peculiarities of the Negro….When that device fails, we will resort to something else.”

Graves continued, “This is the intent behind the law the en banc court upholds today. In 1890, Mississippi held a constitutional convention with the express aim of enshrining white supremacy….Today the en banc majority upholds a provision enacted in 1890 that was expressly aimed at preventing Black Mississippians from voting. And it does so by concluding that a virtually all-white electorate and legislature, otherwise engaged in massive and violent resistance to the Civil Rights Movement, “cleansed” that provision in 1968. Handed an opportunity to right a 130-year-old wrong, the majority instead upholds it. I respectfully dissent.” View the entire opinion at www.ca5.uscourts.gov/opinions/pub/19/19-60632-CV2.pdf.

Judge Graves writes in painstakingly plain language highlighting the multitude of efforts to disenfranchise black Mississippians, leaving every last barb illuminated for the world to see. Of special note, he was joined in dissent by the only other African-American justice on the panel, Carl E. Stewart, 72, and three white males; James L. Dennis, 86, Stephen A. Higginson, 61 and Gregg J. Costa, 50, who is no longer with the court. In this decision by the Fifth Circuit, yesterday was painfully upheld and preserved. Despite this court being comprised of an 84% European American majority – Justice Graves is eminently aware of his rights, including his right of dissent, and exercises it to secure rights for others.

We are served well by our native son – his intellect, his lived experience and his unwavering commitment to justice.

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