by Matt Clarke

On July 18, 2024, the United States Court of Appeals for the Fifth Circuit reversed an earlier holding by a three-judge panel of the Court, which found that § 241 of the Mississippi Constitution was unconstitutional. That’s the portion of the state’s Constitution that disenfranchises those convicted of certain felonies for life.

It was the second case brought by Black former state prisoners to challenge Mississippi’s expansive list of violent and nonviolent felony convictions that cost them their voting rights. As Plaintiffs in that case noted, the section was amended in 1890 to remove crimes more likely to be committed by white residents—such as murder and rape—while adding others more typically committed by Black Mississippians, primarily property crimes. Supporters at the time freely admitted that their motivation was to keep Black men from voting.

Given that, Plaintiffs argued that the intent behind § 241 was clearly discriminatory; and since it continues to disproportionately target Black Mississippians, it violates the Fourteenth Amendment guarantee of equal protection under the law, they argued. But the federal court for the Southern District of Mississippi disagreed, noting that the current version of § 241 was passed in 1968 after the Voting Rights Act of 1965 expanded Black enfranchisement generally. Because lawmakers subsequently made changes—such as adding “white” crimes like rape and murder to the list for which a prisoner permanently loses voting access, the federal court maintained the state had removed the “taint” of racism from the law. The Fifth Circuit affirmed that ruling on August 24, 2022, and the Supreme Court of the U.S. (SCOTUS)—a day after striking down affirmative action—refused to issue a writ of certiorari over the vigorous dissent of Justices Ketanji Brown and Sonja Sotomayor. See: Harness v. Watson, 47 F.4th 296 (5th Cir. 2022); and143 S. Ct. 2426 (2023).

Then came the instant case. Again Plaintiffs were a group of Black former prisoners challenging their disenfranchisement under § 241. They made a similar argument under the Fourteenth Amendment’s Due Process Clause. But they also added another: that stripping their voting rights for life violated the Eighth Amendment ban on cruel and unusual punishment. The district court rejected this proposition but certified its ruling for interlocutory appeal. At the Fifth Circuit, the case was heard by a three-judge panel, of which Judge Edith H. Jones agreed with the district court. But she was relegated to dissenting when Judges James L. Dennis and Carolyn D. King decided that Plaintiffs were right and called § 241 unconstitutional.

To the surprise of absolutely no one, the Fifth Circuit vacated that order and granted re-hearing en banc before the full Court. The majority then came to the opposite conclusion. Pointing to the SCOTUS ruling in Richardson v. Ramirez, 418 U.S. 24 (1974), which greenlit felony disenfranchisement, they said it wouldn’t make much sense for the framers to pursue an opposite intent with the Eighth Amendment.

The en banc Court noted that in Richardson, SCOTUS “explained the difference between Sections One and Two” of the Fourteenth Amendment: Section One guarantees “due process” and “equal protection of the laws,” while Section Two reduces the number of representatives a state is apportioned if it “disenfranchises any male, non-Indian citizens over the age of 21.”

“But there is a single exception,” the Fifth Circuit noted: “States may not be penalized for disenfranchising a citizen for ‘participation in rebellion or other crime.’” Richardson “did not distinguish between the Due Process and Equal Protection components of Section One, but rested ‘on the demonstrably sound proposition that [Section One], in dealing with voting rights, could not have been meant to bar outright a form of disenfranchisement which was expressly exempted from the less drastic sanction of reduced representation which [Section Two] imposed for other forms of disenfranchisement.’” That same logic, the Fifth Circuit held, also applied to this lawsuit, making it impossible to raise an Eighth Amendment claim via Section One of the Fourteenth Amendment.

Moreover, the majority continued, SCOTUS “has already signaled that felon disenfranchisement is not a punishment,” citing—among other decisions—Trop v. Dulles, 356 U.S. 86 (1958). Dissenting to this was Judge Dennis, who wrote that “[d]enying released offenders the right to vote takes away their full dignity as citizens, separates them from the rest of their community, and reduces them to ‘other’ status. He was joined by Judge King—the majority of the panel whose earlier decision was overturned—along with Judges Carl E. Stewart, James Earl Graves, Jr., Stephen A. Higginson and Dana M. Douglas.

With that, the district court’s decision in favor of Mississippi Secretary of State Michael Watson was affirmed. Before the Court, Plaintiffs were represented by attorneys Jonathan K. Youngblood and Janet A. Gochman of Thacher and Bartlett in New York City, along with Bradley E. Heard, Leslie Faith Jones and Ahmed Soussi of the Southern Poverty Law Center in Alabama. See: Hopkins v. Watson, 108 F.4th 371(5th Cir. 2024)  

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