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Mississippi’s Lifetime Felony Voting Ban Unconstitutional, Appeals Court Rules

Portrait of Judge James L. Dennis inside a room with a US Flag to his left and painting to his right
The 5th U.S. Circuit Court of Appeals struck down Mississippi’s lifetime voting ban for people convicted of certain crimes on Aug. 4, 2023, with Judge James L. Dennis describing it as “cruel and unusual punishment within the meaning of the Eighth Amendment.” Portrait courtesy Law Library of Louisiana

Mississippi’s lifetime voting ban for people convicted of certain crimes, a relic of the State’s 1890 Jim Crow laws, violates the U.S. Constitution, a federal appeals court ruled Friday morning.

Fifth U.S. Circuit Court of Appeals Judge James L. Dennis, writing for a 2-1 majority of a three-judge panel, said in the ruling this morning that “Plaintiffs are entitled to prevail on their claim that, as applied to their class, disenfranchisement for life under Section 241 is unconstitutionally cruel and unusual punishment within the meaning of the Eighth Amendment.”

5th Circuit Hopkins vs Hosemann
Read the 5th Circuit’s opinion in Hopkins v. Hosemann

“In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society. … Mississippi stands as an outlier among its sister states, bucking a clear national trend in our Nation against permanent disenfranchisement,” the ruling says.

Under Section 241 of the Mississippi Constitution, people can only regain voting rights either by a governor’s pardon or through an act of the Legislature. The current governor has not issued any pardons since he became governor in 2020, and the Legislature at most passes bills restoring voter rights to a few voters each year. Tens of thousands of Mississippi residents are disenfranchised for life—most of them Black.

“By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society,” the ruling says. “It is thus a cruel and unusual punishment.”

Court Previously Upheld Section 241

The 5th Circuit previously upheld Section 241 in an August 2022 ruling. Judge James E. Graves Jr., a Black judge from Mississippi, dissented from that ruling, saying that “handed an opportunity to right a 130-year-old wrong, the majority instead upholds it.”

The U.S. Supreme Court decided not to hear an appeal in that case, inviting a scorching dissent from Justice Ketanji Brown Jackson.

a photo of a Black man in a judge's dress wearing glasses and holding his hand up at a podium
In an Aug. 2022 dissent, 5th U.S. Circuit Judge James E. Graves Jr., pictured, said that “handed an opportunity to right a 130-year-old wrong, the majority instead upholds it.” AP Photo/Rogelio V. Solis

The plaintiffs in the current case, Hopkins v. Hosemann, are Dennis Hopkins, Herman Parker, Jr., Walter Wayne Kuhn, Jr., Bryon Demond Coleman, Jon O’Neal and Earnest Willhite.

Judge Carolyn Dineen King, an appointee of former Democratic President Jimmy Carter, joined Dennis, who was appointed by former President Bill Clinton, in today’s majority opinion. Judge Edith Jones, an appointee of former Republican President Ronald Reagan, dissented.

“The argument that criminals who served their prison sentences have paid their debt to society offers no analytical safe harbor,” Jones wrote. “The consequences of committing a felony rarely end at the prison walls. Many felons are subject to considerable limits on their freedom to move about and work during probation.”

The State could appeal the ruling to the full 5th Circuit, where most of the judges are Republican-appointed, or to the U.S. Supreme Court.

The 5th Circuit Court is based in New Orleans and handles cases from Louisiana, Texas and Mississippi.

‘To Secure The Supremacy of the White Race’

The majority opinion notes the racist history of Section 241. During the Reconstruction era, newly emancipated Black Mississippians made enormous gains as Black men gained the right to vote. But in 1890, white Mississippi lawmakers began drafting a new constitution riddled with Jim Crow laws, including adopting Section 241 in 1890 in an attempt to disenfranchise Black residents for life. White lawmakers designated certain crimes that they believed Black people were more likely to commit as lifelong disenfranchising crimes.

The new system instituted an explicitly white-supremacist regime, with its drafters bent on disenfranchising, criminalizing and denying opportunity to the state’s Black residents. The legislative committee that drafted Mississippi’s 1890 Constitution was initially explicit in its white-supremacist goals. They adopted a resolution declaring that “it is the duty of this Com. to perform its work in such a manner as to secure permanent white rule in all departments of state government and without due violence to the true principles of our republican system of government.”

James K Vardaman
James K. Vardaman, a former Mississippi speaker of the House, governor and U.S. senator, seen here in 1912, was known as “The Great White Chief.” He said he and other Mississippi lawmakers designed the 1890 Mississippi State Constitution to “eliminate” Black voting power. Photo courtesy U.S. Library of Congress

They later revised the resolution, changing “white rule” to “intelligent rule.” Contrary to popular misconception, Jim Crow laws usually masqueraded as colorblind. But on the floor of the Mississippi Constitutional Convention, lawmakers were open about their intent.

“I will agree that this is a government by the people and for the people, but what people? When this declaration was made by our forefathers, it was for the Anglo-Saxon people. That is what we are here for today—to secure the supremacy of the white race,” Franklin County delegate J.H. McGehee said to applause from his fellow lawmakers at the 1890 convention as he vowed to strip voting rights from Black residents “even if it does sacrifice some of my white children, or my white neighbors or their children.”

After the state adopted that law as part of its constitution, along with other provisions like poll taxes and literacy tests, James K. Vardaman, one of its drafters, explained the goal: “There is no use to equivocate or lie about the matter … Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the n–ger from politics. Not the ‘ignorant and vicious’, as some of the apologists would have you believe, but the n–ger.” Supporters hailed Vardaman, who served as a Mississippi governor and U.S. senator, as the state’s “Great White Chief.”

Section 241 originally permanently disenfranchised people who committed the following crimes: bribery, burglary theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement and bigamy. In their effort to only include crimes they believed Black people were most likely to commit, the white supremacist drafters of the 1890 Constitution did not originally include murder and rape as disenfranchising crimes. The State amended the Constitution in 1950, removing burglary as a disenfranchising crime and again in 1968, when it added murder and rape to the list.

‘Mississippi Original Good Ole Boys Cheated So Many’

Shuwaski Young, a Democrat running for secretary of state against incumbent Republican Michael Watson this year, said in a statement this afternoon that the ruling “finally upholds what we already knew: Lifetime voting bans in Mississippi are unconstitutional and cruel.”

“This is a special day for all Mississippians who want equality and fairness at the ballot box,” he said. “As a Black candidate running for statewide office, it pains me that Mississippi’s original good ole boys cheated so many generations out of their right to vote.  And, not all of them were Black as intended.”

“As a Black candidate running for statewide office, it pains me that Mississippi’s original good ole boys cheated so many generations out of their right to vote. And, not all of them were Black as intended,” Shuwaski Young, a 2023 Democratic candidate for Mississippi Secretary of State, said on Aug. 4, 2023, after the 5th U.S. Circuit Court of Appeals declared Mississippi’s felony disenfranchisement law’s lifetime ban on voting unconstitutional. He is seen here while touring the Mississippi Civil Rights Museum. Photo courtesy Shuwaski Young / Facebook

Simpson Thacher & Barlett LLP lawyer Jon Youngwood, who argued the case before the 5th Circuit, said in a statement Thursday that the ruling “is a major victory for Mississippians who have completed their sentences and deserve to participate fully in our political process.”

The New York City-based firm represented the plaintiffs alongside the Montgomery, Ala.,-based Southern Poverty Law Center.

“Section 241 of the Mississippi Constitution lifetime disenfranchisement scheme disproportionately impacted Black Mississippians,” said Ahmed Soussi, staff attorney for the SPLC. “We applaud the court for reversing this cruel and harmful practice and restoring the right to vote to tens of thousands of people who have completed their sentences.”

Mississippi Attorney General Lynn Fitch has not commented on the case or indicated whether or not the State plans to appeal.

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