A three-judge panel of the United States 5th Circuit Court of Appeals has struck down Mississippi’s lifetime ban on voting for people convicted of certain felonies, saying it is unconstitutional because it inflicts cruel and unusual punishment.
In a 2-1 ruling released Friday, the panel sent the case back to U.S. District Judge Daniel Jordan III in the Southern District of Mississippi with instructions to find the state’s lifetime ban on voting to be unconstitutional.
The majority said, “By severing former offenders from the body politic forever, Section 241 (the lifetime ban provision of the state Constitution) ensures that they will never be fully rehabilitated, continues to punish them beyond the terms their culpability requires and serves no protective function to society. It is thus a cruel and unusual punishment.”
The Court of Appeals decision comes on the heels of the United States Supreme Court refusing in June to hear another case seeking to find Mississippi’s lifetime felony voting ban unconstitutional. That case sought to have the felony voting ban declared unconstitutional because it was originally adopted as part of the 1890 Constitution in an attempt to prevent Black Mississippians from voting.
The lawsuit that was addressed by the three-judge panel was filed by the Southern Poverty Law Center, Simpson Thacher & Bartlett LLP and others on behalf of Mississippians who have lost their voting rights. The office of Attorney General Lynn Fitch opposed the lawsuit on behalf of the state.
It is possible the state may appeal the decision of the three-judge panel to the entire 5th Circuit.
“We are overjoyed with the ruling obviously and with the prospects of tens of thousand Mississippians regaining the right to vote,’ said Brad Heard, head of voting rights with the Southern Poverty Law Center. “We absolutely agree with the court that permanent disenfranchisement is cruel and unusual punishment under the 8th Amendment of the U.S. Constitution.”
The opinion overturning the lifetime voting ban was written by Circuit Judge James Dennis and joined by Carolyn Dineen King, both of whom have senior status on the 5th Circuit. Judge Edith Jones dissented.
She argued that the U.S. Supreme Court in a 1974 decision already had ruled that such lifetime bans were allowed. The 1974 ruling said a lifetime ban did not violate equal protection clauses of the United States Constitution or in other words was not unconstitutional because it allowed a certain group of people to be treated differently.
But the Supreme Court did not rule on whether it was cruel and unusual punishment.
“The consequences of committing a felony rarely ends at the prison walls…,” Jones wrote. “Completing a prison sentence does not entitle felons to all the rights they previously possessed.”
The two judges pointed out that when the Supreme Court made its 1974 ruling that many more states imposed lifetime bans on voting. But now Mississippi is among a small minority of states to do so.
The 5th Circuit majority wrote, “In so excluding former offenders from a basic aspect of democratic life, often long after their sentences have been served, Mississippi inflicts a disproportionate punishment that has been rejected by a majority of the states and, in the independent judgment of this court informed by our precedents, is at odds with society’s evolving standards of decency.”
The framers at the time admitted they placed the lifetime ban in the Mississippi Constitution as a tool to keep African Americans from voting. Those crimes placed in the constitution where conviction costs a person the right to vote are bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, bigamy and burglary.
Under the original language of the constitution, a person could be convicted of cattle rustling and lose the right to vote, but those convicted of murder or rape would still be able to vote — even while incarcerated. Murder and rape now also are exclusionary.
In the 5th Circuit ruling, the majority pointed out that the Constitution granted the Legislature the authority to restore voting rights, presumably, to ensure that white Mississippians were not permanently banned from voting. In modern times, the Legislature usually restores voting rights to a handful (usually no more than five people) each session.
CORRECTION 8/6/2023: This story has been updated to identify what parties filed the lawsuit.
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