New Orleans 5th Circuit Appeals Court Panel
A panel consisting of nineteen federal appellate judges from the U.S. 5th Circuit Appeals Court in New Orleans is scheduled to make a critical decision earlier this week regarding Mississippi’s controversial practice of permanently revoking voting rights from people in the state convicted of certain felonies, including nonviolent offenses for which they have already served their entire sentence.
The major issue before the 5th Circuit today is whether stripping voting rights from certain Mississippi felons amounts to unconstitutionally cruel and unusual punishment. The lawsuit is the result of a widely recognized class-action lawsuit filed in Hopkins vs Hosemann.
In a big win for ex-felons in Mississippi the Fifth Circuit Court of Appeals judges held in August that permanent disenfranchisement of people convicted of a felony that such a practice is a violation of the Cruel and Unusual Punishment Clause outlined in the Eighth Amendment.
This hard-fought win for the plaintiffs marked a significant victory, but it also brought to light an interpretation of the incorporated doctrine, which pertains to the application of the Bill of Rights to the states.
This same interpretation poses a potential threat to not only the freedom addressed in the Hopkins case, but also to numerous other rights. As the ramifications of this ruling are wide-ranging, its outcome holds great importance and raises essential questions.affording tens of thousands of citizens the opportunity to regain their right to vote, according to a report from the Associated Press.
In a reversal of fortune against voting rights for Mississippi felons the full 17-member circuit court vacated that ruling weeks later and scheduled today’s hearing.
Mississippi Attorneys Argued Otherwise
The attorneys representing the state argue that the voting ban should be classified as a “nonpunitive voting regulation,” asserting that even if it were considered a form of punishment, it would not be deemed cruel and unusual.
This argument is set to be presented before the seventeen full-time active judges on the court, who will be joined by two senior-status part-time judges. Notably, these two judges had previously participated in a panel that ruled against the aforementioned ban back in August.
“Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement,” Senior Judge James Dennis wrote in the August opinion, joined by Senior Judge Carolyn Dineen King. Both judges were nominated to the court by Democratic presidents byJimmy Carter and Dennis by Bill Clinton.
It’s worth noting that as per the provisions laid out in the Mississippi Constitution, citizens convicted of ten specified felonies, including offenses such as bribery, theft, and arson, have their voting rights suspended.
Under a previous state attorney general, the list was expanded to 22 crimes, including timber larceny and carjacking. To have voting rights restored, people convicted of any of the crimes in the bill must get a pardon from the governor or persuade lawmakers to pass separate bills with two-thirds approval. Lawmakers in recent years have passed few of those bills; none were passed in 2023.
The Associated Press further reported in its story that Judge Kyle Duncan was among 5th Circuit judges who suggested during questioning that the Legislature, not judges, should prescribe punishment for a crime.
“There is no judicial calculus to tell the difference between a rapist, and an armed robber and a car thief – and a timber thief, for that matter,” Duncan told attorney Jon Youngblood, who was arguing against disenfranchisement.
Mississippi’s Historic Troubles
Mississippi has a longstanding voting ban for certain felonies, making it one of just three states with such a ban. This law, established in the state’s 1890 Constitution during the Jim Crow era, was designed to disenfranchise African Americans after Reconstruction.
The ban still disproportionately affects Black adults, with one in six unable to vote. Legislators even have the power to decide which person can have their voting rights restored. To challenge this discriminatory policy, ACLU filed a lawsuit under (Hopkins v. Hosemann), arguing that it violates the U.S. Constitution, including the 14th Amendment, by arbitrarily denying citizens the right to vote based on race.
Furthermore, Mississippi lacks several voter programs like early voting, no-excuse absentee voting, and online voter registration, which are commonplace in other states.
The SPLC (Southern Poverty Law Center) has run voter mobilization field programs to help Mississippians get registered and vote in spite of their state’s tough voter restrictions. During the 2019 statewide races, ACLU talked to more than 30,000 voters in Hinds and Washington counties and registered more than 1,000 new voters. ACLU promises to continue this field work from now on.
Contributing Reporter Clarence Walker can be reached at [email protected]