The Fifth Circuit Court is the most conservative in the country. But sometimes you get lucky when a three-judge panel is randomly chosen to hear your appeal. That happened today in a ruling handed down about Section 241 of Mississippi's state constitution, which disenfranchises anyone convicted of a felony—forever. This case ended up being heard by three old judges appointed by Carter, Reagan, and Clinton, not young firebrand conservatives appointed by the likes of George W. Bush or Donald Trump.
As a result, a majority held, first, that Section 241, which was written in 1890, had explicitly racist underpinnnings. They recounted this history in some detail before pointing out that it continues to be applied disproportionately to Black people:
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. In 2017, 36% of voting-age citizens in Mississippi were black. Yet...of the nearly 29,000 Mississippians who were convicted of disenfranchising offenses and have completed all terms of their sentences between 1994 and 2017, 58%—or more than 17,000 individuals—were black. Only 36% were white.
Second, they ruled that Section 241 had no legitimate rehabilitative, deterrent, or retributive function. Also, crucially, a large majority of states have decided that contemporary mores don't allow permanent and widespread disenfranchisement:
“No right is more precious in a free country” than the right to vote....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. 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. Section 241 therefore exacts a cruel and unusual punishment on Plaintiffs.
There is, of course, a downside to getting lucky judges: If the case is reheard by the entire court, it might well get reversed. Stay tuned.
If this does stand, it could cause Glenn Youngkin to have an apoplectic fit. Even McDonnell was better than he is about restoring rights, & Youngkin has reversed all of the progress since then made by his predecessors.
I’d bet money that an en banc reversal is coming in the near future.
Arguably, if imprisonment is temporary, then the permanent suspension of other guaranteed constitutional rights is discordant and unusually punitive.
While people will bring up the (so-far constitutional) lifetime ban on violent (3rd Circuit Appeals ruled non-violent felon ban is unconstitutional) felons owning guns, that ban relies on public safety.
I think under this conservative SCOTUS, we might even see the violent felon gun ownership ban overturned.
Take lifetime gun bans out of the discussion, what's your theory of a defense that the circuit court would latch onto, to support a lifetime ban on voting?
14th Amendment.
But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, ___except for participation in rebellion, or other crime___, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.
It seems very clear that the Constitution allows states to deny the right to vote for those who participate in any crime. There is no limitation on this - if someone commits a crime they can permanently lose the right to vote.
It might be clear under the original constitution but nothing is entirely clear yet about the new MAGA constitution. At this point, we need to accept that you can learn more about constitutional law by watching Fox News than you can by reading old decisions.
"Even McDonnell?" McDonnell was the Governor who jump started the restoration of rights. His number were roughly double that of his two Dem predecessors.
Yes, I know - my comment was due to the fact that I know of no one who expected any Virginia Republican - even McDonnell - to do anything of the kind. Those of us in VADP & Virginia C.U.R.E. didn't see him as being particularly receptive to any such regions that others in his party opposed.
And given his subsequent behavior - blaming his then-wife for his acceptance of certain gifts, & now his emergence from obscurity to attack the man who brought charges against him - the restoration of ex-offenders' voting rights seems even more of an uncharacteristic action.
See golack's comment, below - it was surprising that any Republican governor ,especially in Virginia, acted in th uh s way.
Maine and Vermont not only don't permanently strip felons of their right to vote, or require felons to reacquire the right after serving their sentence -- otherwise eligible, registered, prisoners, convicted of a felony or a misdemeanor, can vote while in prison.
Of course, that's two of the five whitest states in the Union.
It may or may not be good policy to disenfranchise felons for life. It is, however, clearly constitutional.
Judge Edith Jones (the dissenter) is every bit the partisan conservative firebrand that Trump's and W's pick are. (I'll grant you she's not as young, though.) You can bet bottom dollar that she'll urge the rest of her partisan R colleagues to re-hear the case en banc and overturn this decision. And they will.
Remember, Nixon's War on Drugs was designed to dis-enfranchise minorities because they tended to vote for Democrats.