The Volokh Conspiracy
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En Banc Fifth Circuit Upholds Mississippi Felon Disenfranchisement
The full court rejects an Eighth Amendment challenge to a provision in the Mississippi Constitution.
Yesterday, the U.S. Court of Appeals for the Fifth Circuit, sitting en banc, upheld a provision of the Mississippi Constitution that deprives convicted felons of the right to vote against an Eighth Amendment challenge. The vote was 13-6. Judge Edith Jones wrote for the majority, joined by Chief Judge Richman and Judges Smith, Elrod, Southwick, Willett, Ho, Duncan, Engelhardt, Oldham, and Wilson. Judges Haynes and Ramirez also concurred in the judgment. Judge Dennis dissented, joined by Judges King, Stewart, Graves, Higginson, and Douglas.
Judge Jones' opinion for the en banc court in Hopkins v. Watson begins:
This en banc court convened to reconsider a panel decision holding that Section 241 of the Mississippi Constitution, which disenfranchises those convicted of certain felony offenses, fails the test of the Eighth Amendment, as incorporated by the Fourteenth Amendment's Due Process Clause. We reject that result because the United States Constitution cannot properly be so interpreted. The Supreme Court, in Richardson v. Ramirez, 418 U.S. 24, 94 S. Ct. 2655 (1974), reaffirmed a body of constitutional law expressly permitting States to enact felon disenfranchisement. And even if modern jurisprudence under the Eighth Amendment is applicable, which it is not, the case law cannot be stretched to outlaw Section 241.
Mississippi, like all States, imposes various restrictions on who may vote. These include mental competency, residency, age, citizenship, registration, and criminal history qualifications, all of which are laid out in Section 241 of the Mississippi Constitution:
Every inhabitant of this state, except idiots and insane persons, who is a citizen of the United States of America, eighteen (18) years old and upward, who has been a resident of this state for one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or in the incorporated city or town in which he offers to vote, and who is duly registered as provided in this article, and who has never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy, is declared to be a qualified elector, except that he shall be qualified to vote for President and Vice President of the United States if he meets the requirements established by Congress therefor and is otherwise a qualified elector.
MISS. CONST. ART. XII, § 241. Mississippi disenfranchises these felons for life, though voting rights may be restored by a two-thirds vote of the State legislature under Section 253 of the Mississippi Constitution.
Laws like Mississippi's Section 241 have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar States from permanently disenfranchising felons, it dispensed some advice to the losing parties:
We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them. . . . But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people . . . . will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.
Richardson v. Ramirez, 418 U.S. at 55, 94 S. Ct. at 2671. In other words: go and convince the State legislatures. Do the hard work of persuading your fellow citizens that the law should change. The paramount lesson of the Constitution and Richardson is that the changes sought by Plaintiffs here can and must be achieved through public consensus effectuated in the legislative process, not by judicial fiat.
The opinion concludes:
Holding Art. XII, Section 241 of the Mississippi Constitution categorically unconstitutional, even as to a limited set of offenders, is at odds with the Supreme Court's and other courts' decisions, would thwart the ability of the State's legislature and citizens to determine their voting qualifications, and would require federal courts overtly to make legislative choices that, in our federal system, belong at the State level.
The dissent begins:
The right to vote is the essence of a democratic society and "preservative of all rights." Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Yet Article XII, Section 241, of the Mississippi Constitution of 1890 mandates permanent, lifetime disenfranchisement of a person convicted of "murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy."1 Disenfranchisement extends to free people who have completed all terms of their sentences. The Plaintiffs, representing a class of persons who have been convicted of Section 241's crimes and have completed the terms of their sentences, challenge the constitutionality of Section 241. The Plaintiffs are both Black and White, and their Eighth Amendment argument is independent of the "invidious" discrimination that originated Section 241.2 Rather, the Plaintiffs argue permanent disenfranchisement of free persons who have completed all terms of their sentences constitutes cruel and unusual punishment in violation of the Eighth Amendment. Under well-settled principles of Eighth Amendment jurisprudence, the Plaintiffs have met their burden. A national consensus to this effect has now formed among a large majority of the states.
To dodge this conclusion, the majority largely conflates the Plaintiffs' challenge to the punishment at issue in this case—permanent disenfranchisement of free persons who have completed all terms of their sentences—with a challenge to felon disenfranchisement in general. Where the majority does reach the issue before us, it picks and chooses among precedents, ignoring well-established Eighth Amendment principles, while stretching the Supreme Court's Equal Protection decision in Richardson v. Ramirez, 418 U.S. 24 (1974), beyond all recognition. What is even worse, the majority finds the Eighth and Fourteenth Amendments mutually exclusive, flouting Supreme Court precedent that "provisions [granting] Congress or the States specific power to legislate in certain areas . . . are always subject to the limitation that they must not be exercised in a way that violates other specific provisions of the Constitution." Williams v. Rhodes, 393 U.S. 23, 29 (1968).
I respectfully dissent.
There may be a petition for certiorari, but this does not appear to be a likely grant.
