WASHINGTON, D.C. — Today, a 19-judge panel on the 5th U.S. Circuit Court of Appeals reheard a case challenging the Mississippi Constitution’s lifetime ban on voting for individuals with certain felony convictions even after sentence completion.
Today’s rehearing concerned a groundbreaking 2-1 decision from a 5th Circuit panel striking down Mississippi’s felony disenfranchisement provision for violating the 8th Amendment’s prohibition on cruel and unusual punishment. In that August 2023 decision, the panel rejected a separate request from the plaintiffs to strike down another state constitutional provision regarding Mississippi’s onerous and arbitrary rights restoration scheme for individuals convicted of Section 241’s disenfranchising crimes.
Shortly after the Democratic-appointed majority handed down the ruling, the entire 5th Circuit granted the state’s request for rehearing and voided the panel’s decision — thereby leaving Section 241 in place.
The Mississippi Constitution’s permanent felony disenfranchisement provision bars thousands of individuals from voting.
The state constitutional provision at issue in the case — 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.”
Mississippi’s arguments largely hinged on the idea that permanent disenfranchisement is not a form of punishment.
At today’s oral argument, the attorney for the defendant, Mississippi Secretary of State Michael Watson (R), primarily focused on the assertion that Section 241’s permanent felony disenfranchisement scheme does not constitute a form of punishment under the 8th Amendment: “Plaintiffs have not pointed to any evidence that Section 241 is a constitutional punishment…[rather] it is about qualifications and regulations of the electoral franchise…[it] is not a punishment at all.”
In addition to arguing that Section 241 is merely a non-punitive regulatory requirement, Watson’s attorney asserted that “what our traditions recognize in disenfranchising felons for so long is that there are certain features of character and judgment that felons…are potentially incapable of” possessing.
In response to the attorney’s pejorative characterization of people with felony convictions, one of the 5th Circuit judges pushed back, noting that in Mississippi, only individuals convicted of certain felonies — those enumerated in Section 241 — are permanently disenfranchised, while others are not: “[Your argument] may have a little more currency if all felons were disenfranchised, but they’re not the selected list under Section 241. And doesn’t that undermine your argument that well, felons permanently can’t be trusted?”
On the other side, individuals with former felony convictions who brought the case urged the 5th Circuit to affirm that Section 241 violates the 8th Amendment.
The attorney for the plaintiffs noted that this case is “not about whether or not permanent disenfranchisement for certain clients is barred by the Eighth Amendment.” Rather, it is limited to whether permanent disenfranchisement of “individuals who have completed their sentences” contravenes the 8th Amendment’s ban on cruel and unusual punishment.
In countering the state’s assertion that Section 241 does not amount to punishment, the plaintiffs’ attorney pointed to the text and history of a 134-year-old statute. In particular, the attorney cited Mississippi’s 1870 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. The text of the act specifically states that the Mississippi Constitution “shall never be so amended or changed as to deprive any citizen…the right to vote…except as a punishment for such crimes as are now felonies at common law.”
In a colloquy with one of the 5th Circuit judges, the plaintiffs’ attorney was asked whether depriving individuals with felony convictions of the right to own a gun was tantamount to the purported cruel and unusual punishment of permanently stripping them of the right to vote. In asking this, the judge suggested that if the court were to restore voting rights to individuals with felony convictions, it should also restore their Second Amendment rights.
To this line of questioning, the plaintiffs’ attorney responded that in his view, Second Amendment rights are “much more complicated” and not “as broad as the obvious right to vote without restrictions.” Nevertheless, the attorney noted that depriving people with felony convictions of certain rights aside from voting could amount to cruel and unusual punishment.
The plaintiffs’ attorney concluded by stating that the Mississippi law is unconstitutional because it “permanently disenfranchises individuals after terms of sentence are completed.”
Following today’s oral argument, the entire 5th Circuit could release its opinion at any time. For the time being, Section 241 remains on the books and continues to prevent thousands of Mississippians with certain felony convictions from exercising the right to vote.