Fifth Circuit panel overturns Mississippi felon voting ban, AG to seek review of decision by full court

A three-judge panel of the Fifth Circuit overturned Mississippi’s felony voter prohibitions, but Attorney General Fitch will seek a rehearing in front of the full court.

The Mississippi Constitution prevents people who have been convicted of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy” from voting. Other felony crimes have been added to the list.

On Friday, a three-judge panel on the Fifth Circuit Court of Appeals ruled that Mississippi felony voter prohibitions violated the U.S. Constitution’s Eighth Amendment. The Eighth Amendment prevents the use of “cruel and unusual” punishment.

The three-judge panel was made up of Judge Carolyn Dineen King, Judge James L. Dennis, and Judge Edith Jones. Both King and Dennis, who were appointed by Democratic presidents, ruled in favor of overturning the long-held statute. Jones, a Republican appointee and the former Chief Judge of the Court, crafted a strongly worded dissent.

If the ruling ultimately stands, previously excluded individuals with felony records would gain the right to vote. The Mississippi Secretary of State’s Office would effectively stop enforcing the offending provision in Section 241.

“In the last fifty years, a national censes has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society. Today, thirty-five states plus the District of Columbia disavow the practice embodied in Section 241, a supermajority whose size is dispositive under controlling Supreme court precedent. Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement,” read the opinion.  

King and Dennis were both unconvinced that the disenfranchisement provisions of the Mississippi Constitution of 1890 were “mere placement alongside regulatory franchise provisions” and not intended as punishment.

In her dissent, Judge Jones says the court is simply trying to change the law without going through the legislative process.

“Today the court turns that advice [previous ruling by the U.S. Supreme Court] on its head. No need to change the law through a laborious political process,” Jones wrote. “The court will do it for you, so long as you rely on the Due Process Clause, rather than the Equal Protection Clause. With respect, this is not a road that the Constitution – or precedent – allows us to travel. I dissent.”  

She added that if courts were able to interpret “cruel and unusual” through the original meaning of the terms, there is no question that felon disenfranchisement would be neither of the two. Jones said King and Dennis stretched the precedent “beyond the breaking point.”

“The better term, in my view, would be ‘incoherent.’ According to the majority’s reasoning, a state can sentence rapists to life in prison, meaning they can never vote—but if they are spared and eventually released, they must be allowed to vote. A state can execute murderers, but it may not keep them from voting if they are released from prison. In other words, permanent disenfranchisement is fine—so long as it is accompanied by a life sentence or death,” wrote Jones.

The victory for the felon voting rights may be short lived. A person who loses a case in front of a three-judge panel of a circuit court of appeals has the right to request a rehearing in front of the full court. This is called an “en banc hearing.” If granted, every judge in the court then hears and votes on the case.

The full Fifth Circuit is widely regarded as one of the most conservative courts in the country. Twelve of the seventeen members of the Court were appointed by Republican presidents, including a slew of “originalist” judges appointed by former President Donald Trump, such as Mississippi’s Cory Wilson. Originalism is a judicial philosophy that seeks to determine what the original intent of the Constitution was in applying it today.

“At this time, the State expects to seek further review. As Judge Jones notes in her dissent, an ‘end-justifies-means analysis’ has no place in constitutional law. The Supreme Court has signaled that felon disenfranchisement is not punishment and the Eighth Amendment cannot be distorted to prohibit what the plain language of the Constitution affirmatively acknowledges as legitimate,” said a spokesperson for the Attorney General’s office.

In 2022, a separate panel of the Fifth Circuit considered and rejected a call to overturn Mississippi’s felony disenfranchisement provision. That suit argued that Jim Crow-era authors of the state’s Constitution was intended to strip voting rights for Black people who they believed were more likely to commit a felony crime. The U.S. Supreme Court declined certiorari to reconsider the ruling.

The 2023 suit differed in scope, arguing that the state imposed “cruel and unusual punishment” by implementing a lifetime ban from voting on felony convicted individuals. It was filed by six individuals – Dennis Hopkins, Herman Parker Jr., Walter Wayne Kuhn Jr., Demond Coleman, Jon O’Neal, Earnest Willhite – and “on behalf of a class of all others similarly situated.”

Individuals previously convicted of 23 different felony crimes have been barred from voting throughout their lifetime. Ten of those were included in the state’s constitution while the rest were added by the Attorney General.

The crimes include: voter fraud, murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, bigamy, armed robbery, extortion, felony bad check, felony shoplifting, larceny, receiving stolen property, robbery, timber larceny, unlawful taking of a motor vehicle, statutory rape, carjacking or larceny under lease or rental agreement.