A federal appeals court on Friday struck down Mississippi’s Jim Crow-era policy of permanently revoking voting rights from certain people with felony convictions, ruling that it is unconstitutional cruel and unusual punishment.
The 2-1 panel ruling is a surprise victory from the conservative fifth circuit court of appeals just over a month after the US supreme court refused to hear a challenge to the discriminatory law.
Before Friday’s ruling, Mississippi’s felony disenfranchisement law denied a higher percentage of its residents the right to vote than any other states in the United States. The policy blocked more than 10% of the adult population from voting if they had ever been convicted of one of 22 crimes, including murder, rape, bribery, theft and arson. The vast majority – more than 90% – of those people are no longer in prison.
The state’s policy also disproportionately affected Black voters, with nearly 16% of the Black voting age population prevented from casting a ballot because of a prior felony conviction.
In its ruling, the court found that the state’s policy serves no penological purpose.
“By severing former offenders from the body politic forever, [the state’s policy] ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society,” the opinion said. “It is thus a cruel and unusual punishment.”
The only way for people to restore their rights, the court found, was through a “discretionary, standardless scheme” in which the state legislature could restore voting rights on an individualized basis by a two-thirds vote by all members of each house. The process is nearly impossible: there are no online instructions or applications, and lawmakers can reject or deny an application for any reason.
An average of seven people successfully made it through the process each year between 1997 and 2022, according to Blake Feldman, a criminal justice researcher in Mississippi.
In its ruling, the fifth circuit also pointed out that state legislatures have moved away from permanent disenfranchisement in recent years. Currently, just 12 states allow people to be disenfranchised for life in some cases, according to the Sentencing Project.
“Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our nation against permanent disenfranchisement,” the opinion said.
The lawsuit was brought by the Southern Poverty Law Center in 2018 on behalf of a group of named plaintiffs who lost their right to vote because of felony convictions. One of the named plaintiffs, Dennis Hopkins, is a grandfather who has been disenfranchised since 1998 when he was convicted of grand larceny.
“In school, they teach our kids that everybody’s vote counts, but no matter how I’ve lived for the past 20 years, I don’t count, not my values or my experience,” Hopkins said when the lawsuit was filed. “I have paid Mississippi what I owe it in full, but I still can’t cast my vote for my children’s future.”
Mississippi’s felony disenfranchisement policy dates back to the state’s 1890 constitution, written during Reconstruction when the white political leadership intentionally tried to suppress Black political power by selecting crimes that Black people were more likely to commit to be crimes that are punishable with lifetime disenfranchisement. The law remained largely unchanged, other than the addition of two disenfranchising crimes in 1968 and removal of one in 1950.
The fifth circuit ruling comes just over a month after the US supreme court turned away a case in June challenging Mississippi’s felony disenfranchisement policy. The high court refused to reconsider a 2022 decision by the fifth circuit which said Mississippi had remedied the discriminatory intent of its disenfranchisement policy by amending the list of disenfranchising crimes.
Justice Ketanji Brown Jackson wrote a dissent, joined by Justice Sonia Sotomayor, in which she argued that the list of disenfranchising crimes was “adopted for an illicit discriminatory purpose”.
