Jim Crow-era lifetime ban on felons voting is unconstitutional, court rules

“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 standards of decency,” wrote judge James L. Dennis, joined by judge Carolyn Dineen King, both of whom were appointed by Democratic presidents.

If it holds, the decision would affect about 30,000 Mississippians who have served sentences for felonies covered by the disenfranchisement clause, the plaintiffs estimate.

The clause dates back to Mississippi’s 1890 constitution, which the state “adopted in reaction to the expansion of Black suffrage and other political rights during Reconstruction,” the ruling notes. The provision applied to felons convicted of crimes that included murder, bribery, theft and perjury, among other crimes.

The plaintiffs succeeded using an uncommon legal strategy for voting rights cases, focusing on the Eighth Amendment and its prohibition against cruel and unusual punishment.

Past felons’ voting rights cases have often centered on arguments that disenfranchising them violates the Constitution’s equal protection clause — an argument the suit also made unsuccessfully. Those cases include a separate challenge to Mississippi’s rule, which the 5th Circuit rejected and the Supreme Court declined to take up this year.

Jonathan Youngwood, one of the plaintiffs’ attorneys, said his team pursued every line of argument it found substantial. He said the Eighth Amendment was relevant in particular because Mississippi’s ban has been permanent in the vast majority of cases where it applied.

“If you commit a crime when you’re 22 years old, and you serve a year or six months and you get out, it can’t be that decades later you can’t vote. That just can’t be what the Constitution allows in 2023,” said Youngwood, an attorney at Simpson Thacher & Bartlett.

Herman Parker Jr., one of the six named plaintiffs, wrote in the 2018 complaint that his conviction as a teenager should not bar him from participating in civic life.

“I’m not that 19 year-old boy anymore — I’m a man and deserve a voice in government because of who I am today,” he said.

The plaintiffs’ victory came via the 5th Circuit, considered one of the country’s most conservative. Dennis was appointed by former president Bill Clinton and King by Jimmy Carter. The dissenting judge on the three-jurist panel was appointed by Ronald Reagan. The defense may now, however, ask for an en banc review, which, if granted, would see a larger group of 5th Circuit judges hear the case.

Mississippi “expects to seek further review,” wrote Debbee Hancock, a spokeswoman for Mississippi Attorney General Lynn Fitch (R).

“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,” the statement adds.

Several other states bar certain felons from voting after their sentence is completed, in some cases also requiring a petition to restore their rights. Virginia Gov. Glenn Youngkin (R) scrapped a practice this year that automatically restored some felons’ voting rights, now requiring them to apply.

But the United States has trended toward eventually enfranchising felons who have completed their sentences.

“Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement,” the opinion notes.

Eighth Amendment-related decisions often rely on what American society today considers cruel and unusual, said Kareem Crayton, senior director for voting and representation at the Brennan Center for Justice.

“The question is, in our modern society, do we find acceptable these exclusions from the social system for people, even after they’ve served their time in prison, and even if the offense they’ve been convicted of has nothing to do with elections and voting?” he said.

Fifth Circuit Judge Edith Jones disagreed with the 5th Circuit ruling in her dissenting opinion.

“Today’s ruling disregards text, precedent, and common sense to secure its preferred outcome. This end-justifies-means analysis has no place in constitutional law,” she wrote.