Mississippi’s lifetime ban on voting for people convicted of a range of felonies is cruel and unusual punishment that violates the Eighth Amendment and “is at odds with society’s evolving standards of decency,” a federal appeals court ruled on Friday.
In an emphatic 2-to-1 opinion, the U.S. Court of Appeals for the Fifth Circuit upbraided Mississippi officials for what it called a pointless “denial of the democratic core of American citizenship.”
“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,” the judges wrote.
They added: “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. 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.”
The two judges in the majority, James L. Dennis and Carolyn Dineen King, were nominated to the bench by Presidents Bill Clinton and Jimmy Carter. Judge Edith H. Jones, who was nominated by President Ronald Reagan, said in a caustic dissent that the ruling ignored a past Supreme Court opinion stating that the question of permanent disenfranchisement should be left to legislatures.
“No need to change the law through a laborious political process. The court will do it for you,” she wrote. “With respect, this is not a road that the Constitution — or precedent — allows us to travel.”
A spokeswoman for Lynn Fitch, the Mississippi attorney general, said the state anticipated that it would appeal the ruling.
The decision affects a comparatively small number of Mississippians — about 30,000, plaintiffs in the case estimate — who have completed prison sentences for 22 felonies that fall under the State Constitution’s disenfranchisement clause.
But should it stand, it could have implications in 14 other states that confer lifetime bans on voting for at least some crimes. Two of those states, Virginia and Kentucky, have blanket lifetime voting bans much like Mississippi’s, although governors in both states are restoring voting rights to many people via executive orders.
In its 1890 Constitution, Mississippi permanently disenfranchised people convicted of nine felonies, including bigamy, forgery and bribery, that historians agree were chosen because the offenders were disproportionately Black.
Later revisions added another 11 crimes, including murder and rape. Residents could regain their rights only on the governor’s order or by persuading the State Legislature to pass a bill doing so. Both have been rare.
Civil rights advocates have challenged the Mississippi ban before, without success. The U.S. Supreme Court declined to hear an appeal last week of another Fifth Circuit ruling that rejected claims that the lifetime ban discriminated against African Americans in violation of the U.S. Constitution’s equal protection clause.
The argument that the ban was cruel and unusual punishment marked a departure from past attacks on disenfranchisement. Plaintiffs in the case — the Southern Poverty Law Center and others representing six Mississippi residents who had lost their voting rights — argued that a lifetime ban served no purpose related to the crime it accompanied, such as deterring future crimes. It was, they said, an exceptional punishment for punishment’s sake.
“It’s permanent disenfranchisement for a crime you commit when you’re 18, and you can’t vote when you’re 90,” said Jonathan Youngwood, a lawyer with the firm Simpson Thacher & Bartlett who helped represent the plaintiffs. “That’s cruel and unusual.”
The plaintiffs also noted that numerous states had abandoned permanent disenfranchisement policies in recent decades — only 15 such state policies today from 32 in 1974 — demonstrating a change in the nation’s judgment of what an appropriate standard should be.
The court agreed and said Mississippi had no defensible explanation as to why some felonies merited disenfranchisement and others did not.
In an unusual procedural twist, the case decided on Friday was actually filed in 2018 and heard by the Fifth Circuit a year later, but the judges remained silent on its outcome until now. The court did not explain the delay, but legal experts said it was possible that they had elected to await the outcome of the equal protection lawsuit before issuing their opinion.