5th Circuit Strikes Down Mississippi’s Jim Crow Era Felony Disenfranchisement Provision

 UPDATE: On Sept. 28, 2023, the 5th Circuit agreed to rehear the appeal en banc and vacated the three-judge panel’s prior decision striking down Section 241 of the Mississippi Constitution. Section 241 currently remains in place.

WASHINGTON, D.C. On Friday, Aug. 4, the 5th U.S. Circuit Court of Appeals struck down a Jim Crow-era provision of the Mississippi Constitution that permanently disenfranchised Mississippians with certain felony convictions. The 2-1 opinion held that the provision violates the 8th Amendment’s prohibition on cruel and unusual punishment. The decision was authored by Judge James Dennis, who was appointed by former President Bill Clinton. Dennis was joined by Judge Carolyn King, a former President Jimmy Carter appointee, while Judge Edith Jones, a former President Ronald Reagan appointee, dissented.

This decision comes about a month and a half after the U.S. Supreme Court declined to take up a different case challenging the same provision under the 14th Amendment’s Equal Protection Clause. 

The provision at issue, known as Section 241, strips the right to vote for life from anyone convicted of bribery, theft, arson, obtaining money or goods under false pretenses, perjury, forgery, embezzlement or bigamy. Section 241 was enshrined in Mississippi’s 1890 constitution with the express purpose of denying Black men the right to vote. It was later amended by the state Legislature in 1950 to remove burglary and again in 1968 to add rape and murder as disenfranchising crimes. 

According to the Sentencing Project, Mississippi disenfranchises nearly 11% of its voting age population, the highest percentage in the country. The impact of felony disenfranchisement on the state’s Black population is particularly staggering: “African Americans constitute 36% of Mississippi’s voting age population, but 59% of its disenfranchised individuals. African American adults are thus 2.7 times more likely than white adults to have been convicted of a disenfranchising crime.”  

A 2018 lawsuit challenged Section 241 along with another provision of the Mississippi Constitution pertaining to rights restoration. 

Today’s decision arises from a 2018 class action lawsuit brought on behalf of disenfranchised Mississippians who have completed their sentences. The lawsuit, which was filed against the Mississippi secretary of state, alleged that Section 241 violates the 8th Amendment’s prohibition on cruel and unusual punishment as well as the 14th Amendment’s Equal Protection Clause. 

The lawsuit also challenged Section 253 of the Mississippi Constitution, which provides for an arbitrary and onerous rights restoration scheme for individuals convicted of Section 241’s disenfranchising crimes. Under Section 253, the Legislature can only restore voting rights on an individual basis via a two-thirds vote of both chambers, subject to approval by the governor. The plaintiffs alleged that this provision similarly violated the Equal Protection Clause as well as the First Amendment guarantee of free speech. Under Section 253, very few individuals have had their voting rights restored: Between 2013 and 2018, the Mississippi Legislature restored the right to vote to only 18 individuals. In the 2023 legislative session, the Mississippi Legislature did not restore voting rights to a single person.

In a 2019 order, a federal district court held that the plaintiffs had standing to bring their claims, but ultimately rejected the merits of their constitutional arguments against Section 241 and 253. The plaintiffs subsequently appealed the rejection of their claims to the 5th Circuit, while the secretary of state concurrently appealed the district court’s ruling that the plaintiffs had standing. 

Today, the 5th Circuit ruled in favor of the plaintiffs’ 8th Amendment claim against Section 241.

In a monumental triumph for Mississippi voters, today’s opinion held that Section 241 violates the 8th Amendment, thereby reversing part of the district court’s 2019 order. The majority did however affirm the district court’s rejection of the plaintiffs’ 14th Amendment claims against Section 241 based on prior Supreme Court precedent. It also affirmed the rejection of the plaintiffs’ claims against Section 253, holding that they “lack standing to challenge the legislative process embodied in Section 253.”

The opinion described in great detail why Section 241’s “permanent disenfranchisement” is a form of “cruel and unusual punishment.” Section 241’s lifetime ban on voting for individuals convicted of certain crimes “serves no legitimate penological purpose,” the opinion states. “By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society. It is thus a cruel and unusual punishment,” the majority continued.

Why is Section 241 “cruel and unusual punishment”?

The majority opinion relied on the history of the 1870 Mississippi Readmission Act — which allowed the former confederate state to gain representation in Congress following the Civil War — as proof of the fact that Section 241 was intended as a form of punishment. In doing so, the majority refuted the secretary of state and dissenting opinion’s argument that Section 241 was merely a non-punitive regulatory requirement. Indeed, under the 1870 Readmission Act, which was designed to prevent Mississippi from disenfranchising its Black citizens, the state could only amend its constitution “to authorize disenfranchisement if it [did] so as a punishment” for crimes that were considered felonies at the time. 

The opinion next turned to assessing whether Section 241’s punishment is “cruel and unusual.” The majority pointed to the fact that “an exhaustive review of state laws shows that the overwhelming majority of states oppose the punishment of permanently disenfranchising felons who have completed all terms of their sentences.” Mississippi however, “is one of only eleven states that still permanently disenfranchise felons for offenses other than those pertaining to elections.” Accordingly, the opinion maintained that while there is proof of “national consensus” towards the rejection of permanent felony disenfranchisement, Mississippi continues to remain an outlier to this trend. 

“Permanent denial of the franchise, then, is an exceptionally severe penalty, constituting nothing short of the denial of the democratic core of American citizenship. It is an especially cruel penalty as applied to those whom the justice system has already deemed to have completed all terms of their sentences,” the majority emphatically declared. Finally, the opinion underscored how Section 241 is antithetical to “society’s evolving standards of decency” and harms opportunities for rehabilitation and re-entry into society for those with prior felony convictions who completed their sentences: “These individuals, despite having satisfied their debt to society, are precluded from ever fully participating in civic life. Indeed, they are excluded from the most essential feature and expression of citizenship in a democracy—voting.”

Today’s opinion is a resounding victory for Mississippi voters. 

In striking down Section 241, today’s historic decision will provide an opportunity for tens of thousands of Mississippians to be re-enfranchised. On prior occasions, various courts — including the U.S. Supreme Court in 1898 and again in 2023 — missed the crucial opportunity to remove the racially discriminatory Section 241 from the Mississippi Constitution under other legal arguments. Just last year, the 5th Circuit upheld the provision in a different case, holding that it had been “cured” of any “racist taint.” 

None of these previous cases brought claims under the 8th Amendment, meaning that today’s decision is the first case in which Section 241 was successfully challenged for constituting a form of cruel and unusual punishment. This original legal argument under the 8th Amendment, which prevailed in restoring thousands of citizens’ voting rights in Mississippi, could potentially be leveraged in other states that permanently disenfranchise citizens with past felony convictions.   

With today’s decision, Mississippi is finally being held accountable for its sordid history of racial discrimination that has led to the disproportionate disenfranchisement of its Black citizens. 

Read the opinion here. 

Learn more about the case here.