Mississippi’s Permanent Disenfranchisement Law Struck Down as Unconstitutional

In a Friday decision, the Fifth Circuit Court of Appeals declared Section 241 of the Mississippi Constitution, which imposes permanent disenfranchisement for certain crimes, to be unconstitutional under the Eighth Amendment’s prohibition against cruel and unusual punishment.

The Mississippi State Capitol Building in Jackson, Miss., as seen on March 11, 2022. Peter Forest/Getty Images for MoveOn & Emmett Till Legacy Foundation

In a Friday decision, the Fifth Circuit Court of Appeals declared Section 241 of the Mississippi Constitution, which imposes permanent disenfranchisement for certain crimes, to be unconstitutional under the Eighth Amendment’s prohibition against cruel and unusual punishment.

The ruling comes after a class-action lawsuit was filed by six permanently disenfranchised Mississippi citizens with the help of the Southern Poverty Law Center in 2018, challenging the constitutionality of Sections 241 and 253 of the state’s constitution.

“Mississippi denies this precious right to a large class of its citizens, automatically, mechanically, and with no thought given to whether it is proportionate as punishment for an amorphous and partial list of crimes,” the court wrote in its opinion. “In so excluding former offenders from a basic aspect of democratic life, often long after their sentences have been served, Mississippi inflicts a disproportionate punishment that has been rejected by a majority of the states and, in the independent judgment of this court informed by our precedents, is at odds with society’s evolving standards of decency.”

The court also reversed a district court’s grant of summary judgment to the Secretary of State but subsequently enjoined the Secretary from enforcing the disenfranchisement law in the future.

Mississippi’s Laws

Section 241, which traces its roots back to the 1890 Mississippi Constitution, has a complicated historical background, the court noted.

It was enacted during the Reconstruction era as Southern states, including Mississippi, aimed to suppress black citizens’ political power.

“From the outset, the object of the 1890 Mississippi Constitutional Convention was clear: to ensure the political supremacy of the white race,” the court wrote. “Key to accomplishing this end was a package of ‘voter qualifications and procedures’ that delegates adopted ‘to exclude black citizens from participation in the electoral process.’”

The entrance to the Mississippi State Penitentiary at Parchman, Miss., in a file photo. The Justice Department has opened a civil rights investigation into the Mississippi prison system after a string of inmate deaths in the past few months, officials said, on Feb. 5, 2020. Rogelio Solis, File/AP Photo

These included the kind of poll taxes, literacy tests, and residency requirements that were common in the South during post-Reconstruction. Among these requirements was also a criminal disenfranchisement provision that remains today as Section 241 of the Mississippi Constitution.

The court wrote that the measure was designed to target as disenfranchising offenses that the white delegates thought were more often committed by black men.

The provision listed certain crimes that resulted in permanent disenfranchisement, and Section 253 allowed the legislature to restore voting rights for those disenfranchised under Section 241.

Court’s Opinion Claims Racial Inequality

The court examined the historical context and societal impact of Section 241, noting in its opinion that it disproportionately affected black citizens.

“Sections 241 and 253 continue to be part of the Mississippi Constitution and over the years they have been remarkably effective in achieving their original, racially discriminatory aim,” the court wrote, noting in 2017 36 percent of voting-age citizens in Mississippi were black, while 58 percent of the 29,000 disenfranchised were black and 36 percent white.

“The discretionary legislative re-enfranchisement permitted by Section 253 does little to alleviate this disproportionate burden, and, as a practical matter, legislative suffrage is exceedingly rare: between 2013 and 2018, the Mississippi Legislature restored the right to vote to only eighteen individuals.“

The court ruled that it perpetuated the same injustices it was originally intended to uphold. By allowing permanent disenfranchisement to persist, the court observed that it perpetuated racial disparities and further undermined the principle of equal representation in the democratic process.

Mississippi Went Against National Consensus, Court Says

The court, in the majority opinion penned by Circuit Judge James L. Dennis, found that the discretionary re-enfranchisement process under Section 253 did little to alleviate the burden on disenfranchised individuals, and very few individuals had their voting rights restored through this process.

Chief among the court’s findings was the existence of a national consensus against permanent disenfranchisement. The court cited that 35 states and the District of Columbia have rejected the practice of permanently disenfranchising felons who have completed their sentences.

The prevailing national consensus indicates a trend against this form of punishment, and the court concluded that such a punishment violated the evolving standards of decency protected under the Eighth Amendment.

Mississippi Secretary of State

Additionally, the court addressed the role of the Mississippi Secretary of State in enforcing Sections 241 and 253. The Secretary is responsible for administering voter registration and maintaining an electronic database of registered voters.

The court concluded that the plaintiffs’ injuries resulting from disenfranchisement were traceable to the Secretary’s actions and, therefore, allowed their claims against him in his official capacity to proceed.

However, while the court upheld the plaintiffs’ standing to challenge Section 241, it rejected their equal protection claim against the Secretary.

The court cited a Supreme Court decision (Richardson v. Ramirez) that upheld state laws permanently disenfranchising convicted felons. Still, the court clarified that this decision does not preclude an Eighth Amendment challenge to felon disenfranchisement.

Dissent and What’s Next

In response to the court’s ruling, dissenting Circuit Judge Edith H. Jones argued vehemently against applying the Eighth Amendment’s prohibition to felon disenfranchisement.

The dissenting judge emphasized that Section 2 of the Fourteenth Amendment allows states to disenfranchise felons and that this authority should not be deemed unconstitutional under the Eighth Amendment. According to the dissent, Section 2’s explicit authorization should take precedence over any claims of cruel and unusual punishment.

The court’s decision to strike down permanent disenfranchisement as unconstitutional could carry profound implications for voting rights and criminal justice reform in Mississippi and beyond.

This ruling will likely spark debate on the proper balance between punishment, rehabilitation, and preserving fundamental rights. It is expected to draw attention to the broader issue of felon disenfranchisement laws across the nation, prompting legal challenges in other states with similar provisions.