Full 5th Circuit to hear arguments on whether felony voting ban is unconstitutional

By Bobby Harrison
Contributing Writer

(Special from Mississippi Today via lailluminator.com) — The entire U.S. 5th Circuit Court of Appeals will rule, again, on whether Mississippi’s lifetime ban on voting for people convicted of certain felonies is unconstitutional.

The decision of the 5th Circuit to hear the case en banc vacates a three-judge August ruling that did find the lifetime ban unconstitutional. Now, the entire 5th Circuit – around 20 judges – will decide whether the provision in the 1890 Constitution imposing the lifetime ban on voting is constitutional. Whatever the 5th Circuit decides, that decision most likely will be appealed to the U.S. Supreme Court.

It will mark the second time the state constitutional provision on felony suffrage will be considered by the full 5th Circuit. The current lawsuit contends that the lifetime ban on voting imposed by Mississippi is unconstitutional because it is cruel and unusual punishment.

In 2-1 decision in August, a panel of the 5th Circuit said, “By severing former offenders from the body politic forever, Section 241 (the lifetime ban provision of the Mississippi Constitution) ensures that they will never be fully rehabilitated, continues to punish them beyond the terms their culpability requires and serves no protective function to society. It is thus a cruel and unusual punishment.”

But that decision will be reconsidered by the full 5th Circuit.

In a separate case, the U.S. Supreme Court refused in June to hear another case seeking to find Mississippi’s lifetime felony voting ban unconstitutional. That case, which also was heard by the full 5th Circuit, sought to have the felony voting ban declared unconstitutional because it was originally adopted as part of the 1890 Constitution in an attempt to prevent Black Mississippians from voting.

The framers at the time admitted they placed the lifetime ban in the Mississippi Constitution as a tool to keep African Americans from voting. The framers said they believed Black Mississippians were more likely to commit some crimes. Those crimes placed in the constitution where conviction costs a person the right to vote are bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, bigamy and burglary.

Under the original language of the constitution, a person could be convicted of cattle rustling and lose the right to vote, but those convicted of murder or rape would still be able to vote – even while incarcerated. Murder and rape now also are exclusionary.

The lawsuit that was addressed by the three-judge panel and pending before the full 5th Circuit was filed by the Southern Poverty Law Center, Simpson Thacher & Bartlett LLP and others on behalf of Mississippians who have lost their voting rights. The office of Attorney General Lynn Fitch is opposing the lawsuit on behalf of the state.

Mississippi is one of about 10 states imposing a lifetime ban for people convicted of some felonies.

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.

This article originally published in the October 9, 2023 print edition of The Louisiana Weekly newspaper.