The Mississippi constitution prohibits felons who have completed their sentences from voting unless two-thirds of the State legislature restores their right to vote. The Plaintiffs in a class action case challenged the prohibition as “cruel and unusual punishment,” and now a federal appeals court found Eighth Amendment grounds to agree.

In 2018, eight permanently disenfranchised Mississippi felons challenged Section 241 of the Mississippi Constitution as violating the First, Eighth, and Fourteenth Amendments to the U.S. Constitution. The plaintiffs include a grandfather and founder of a peewee football team and a public employee who was banned from voting for life because he was convicted of grand larceny when he was 19.

A 2-1 opinion by the Fifth Circuit Court of Appeals, authored by Judge James L. Dennis, reversed the decision of the United States District Court for the Southern District of Mississippi on August 4. Judge Carolyn Dineen King concurred while Judge Edith Jones dissented.

Dennis’s opinion began with a historical overview of the Mississippi law. He explained that 35 states have rejected lifetime voting bans for felons, while Mississippi’s constitution continues “bucking a clear and consistent trend in our Nation against permanent disenfranchisement.” He wrote the voting ban was in the State’s original 1890 constitution, “which was adopted in reaction to the expansion of black suffrage and other political rights during Reconstruction.”

He said that the law came about “after wresting control of state government from black leaders and their Republican allies through a campaign of violence and election fraud. A new constitutional convention was held in 1890, the object of which was “clear…to ensure the political supremacy of the white race.” The ban on felons voting was part of a package “to exclude black citizens from participation in the electoral process.”

The law was carefully drafted to “appear facially neutral,” Dennis said, “to avoid provisions overtly violating the Fifteenth Amendment’s ban on restricting voting based on race.” These included poll taxes, literacy tests and residency requirements. There were also several escape provisions, such as an “understanding clause,” which, in practice, gave election officials the discretion to allow poor whites to vote but retained the punishment for Blacks.

Mississippi’s new constitution, with its racist provisions, was adopted in 1890 without being ratified by voters. It was amended twice, removing burglary from the list of included felonies, such as theft and embezzlement, and adding murder and rape, based on the legislature’s evolving stance on what “crimes a black person was prone to commit.” Statistics explain the reason for the rule-- while 36% of Mississippi citizens are Black, the demographic committed 58% of the offenses included in the disenfranchisement law.

The law is enforced by the Secretary of State, who sets voter registration instructions, administers the voter database that lists felons, and trains the voting officials. All potential voters must affirm, under penalty of perjury, that they have never been convicted of a disenfranchising crime. During the original suit, both sides filed motions for summary judgment. The district court said plaintiffs had standing, but the Secretary of State prevailed on everything but Plaintiff’s “race-based equal protection claim.” The Fifth Circuit reviewed the summary judgment claims by both sides.

While confirming that Plaintiffs have standing, Dennis turned to the Equal Protection Clause of the Fourteenth Amendment and the Eight Amendment’s ban on “cruel and unusual punishment.” The opinion said that Plaintiff’s injuries could be attributed to the Secretary of State’s requirement that all voters swear they have not been convicted of a listed felony and, as the controller of voting rolls and the trainer of election workers, he is in a “position to redress Plaintiff’s alleged injuries.”

The Secretary of State, however, is not responsible for Plaintiff’s First and Fourteenth Amendment claims that pose “unconstitutional burdens of voting.” These fall within the purview of the legislature. Similarly, defendant’s sovereign immunity claim is valid because the Eleventh Amendment “enjoin(s) enforcement of a state law that conflicts with federal law.”

The Fifth Circuit rejected Plaintiff’s Fourteenth Amendment challenge since it conflicts with the U.S. Supreme Court’s holding in Richardson v. Ramirez (418 U.S. 24), which upheld a California law that banned convicted felons from voting. The Circuit Court then reversed the District Court’s Eighth rule.

The opinion said, “Other rights, even the most basic, are illusory if the right to vote is undermined. This right is not only fundamental to the democratic ordering of our society, it is also expressive of the dignity of American citizenship—that each person is an equal participant in charting our nation’s course.” Dennis wrote, “Mississippi denies this precious right to a large class of its citizens, automatically, mechanically, and with no thought given to whether it is proportionate as punishment for an amorphous and partial list of crimes. 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 standard of decency.”

The section of the Mississippi constitution that establishes permanent disenfranchisement, the ruling concluded, “therefore exacts a cruel and unusual punishment on Plaintiffs.” While remanding the case with instruction for relief to the plaintiffs, the Fifth Circuit reversed the Secretary of State's initial victory on Eighth Amendment claims as unconstitutional and ruled in favor of plaintiffs.

According to the Washington Post, plaintiffs estimate that the decision “would affect about 30,000 Mississippians” who have been disenfranchised under the law. A spokesperson for Mississippi was quoted by the Post that the State “expects further review,” such as requesting a rehearing by the full bench of the U.S. Fifth Circuit.