Mississippi residents Dennis Hopkins, Herman Parker and Walter Wayne Kuhn Jr. could soon get to vote for the first time in more than 25 years thanks to a "groundbreaking" new ruling from a federal appeals court.
All three lost their right to cast a ballot decades ago under a Mississippi law barring those convicted of certain crimes from voting — for life.
"Hearing their stories — lots of them who had been convicted of a felony many, many years earlier and since then had completely law-abiding lives and could never vote — it really hit you how unfair this law was," said Simpson Thacher & Bartlett LLP senior counsel Janet A. Gochman, who challenged that felon disenfranchisement law on behalf of the three men and others.
The Fifth Circuit agreed with Gochman and her clients in August, labeling Mississippi's permanent disenfranchisement of convicted felons cruel and unusual punishment. The ruling reflects a growing national consensus against felon disenfranchisement and could further efforts to end the practice, say activists working to restore voting rights to the formerly incarcerated.
But the decision's critics say the ruling ignores precedent, conflicts with the U.S. Constitution, and could throw voting regimes for felons in many states into disarray.The ruling could also prime the issue for consideration by the U.S. Supreme Court, experts say.
"This is a groundbreaking decision," said Patrick Berry, an attorney with the Brennan Center for Justice's democracy program. "This ruling sends a really strong message, not just to state legislatures but also Congress: Restoring voting rights is an issue that's supported by Americans from all walks of life."
A 'Remarkable' Ruling
The August decision made the Fifth Circuit the first federal court to rule that permanently banning felons from the voting booth is a form of cruel and unusual punishment in violation of the Eighth Amendment, according to experts.
Section 241 of the Mississippi Constitution, which disenfranchises for life those convicted of murder, rape, theft and other crimes, violates society's evolving standards of decency since only 10 other states still have lifetime voting bans for convicted felons, the appellate panel said.
Most states have moved away from permanently disenfranchising former inmates, U.S. Circuit Judge James L. Dennis wrote for the divided three-judge panel, pointing out that, since the U.S. Supreme Court upheld such lifetime voting bans in its 1974 decision in Richardson v. Ramirez , 16 states have stopped imposing those bans.
But previous challenges to felony disenfranchisement laws have largely been rejected by federal courts, making the Fifth Circuit ruling "remarkable" and "significant," according to Berry.
The Fifth Circuit even upheld the very same Mississippi provision just a year ago, ruling that it didn't violate the 14th Amendment's equal protection clause.
But after last year's ruling upholding the provision, attorneys from Simpson Thacher and the Southern Poverty Law Center took a different approach, challenging the law under the Eighth Amendment instead.
"So we took an extremely thorough look and analysis of the law and of the state of play leading up to the suit, and as a result of that we did uncover and identify some theories that some other litigants hadn't pursued," said Simpson Thacher partner Jonathan K. Youngwood, who also worked on the case.
The Fifth Circuit's decision is also significant because, in order to rule that permanent disenfranchisement constitutes cruel and unusual punishment, the panel had to find that it constituted a form of punishment in the first place, according to Bruce Reilly, deputy director of the nonprofit Voice of the Experienced and an attorney and former inmate working to restore felon voting rights.
While felon disenfranchisement laws have been evaluated — and often upheld — by courts under the 14th Amendment, they have largely evaded Eighth Amendment review since courts generally haven't defined disenfranchisement as punishment, Reilly explained.
The Fifth Circuit panel, though, did define disenfranchisement as punishment, relying on the 1870 Readmission Act, which set the requirements for confederate states to be readmitted to the union after the Civil War.
The Readmission Act prohibited those states from depriving citizens of the right to vote "except as a punishment," according to the panel. Since the felon disenfranchisement provision in Mississippi's 1890 Constitution was written after the Readmission Act, it could only comply with federal law if disenfranchisement was considered a form of punishment.
"Considered in this light, there is clear proof that Section 241 was intended as punishment — indeed, there can be no other permissible intention under the Readmission Act," the panel wrote.
"We think that the reasoning and the basis of the Fifth Circuit decision is incredibly sound, and hopefully it will change the trend, especially in other states that do permanently disenfranchise," Gochman said.
Restoring Voting Rights and Energizing Advocacy
The ruling, if it stands, could restore voting rights to tens of thousands of Mississippians, say experts.Approximately 47,000 Mississippi citizens were convicted of crimes resulting in permanent disenfranchisement between 1994 and 2017, according to Youngwood and Gochman's original complaint. Over 28,000 of those people have completed their sentences but still can't vote.
The ruling could also spark similar legal challenges to other states' felon disenfranchisement laws under the Eighth Amendment, according to experts.
"There's a lot of enthusiasm following the ruling, and some of my advocacy partners do think that it's a very innovative approach to try the argument that the plaintiffs tried in this case," said Nicole D. Porter, senior director of advocacy at the Sentencing Project.
"This case is excellent authority now for other plaintiffs bringing the same type of claim," echoed Gochman.
But the opinion is also having an impact outside the courtroom, according to Porter, who said it is energizing activists like her working to end felon disenfranchisement.
Legislation doing just that recently passed in New Mexico and Minnesota, and similar bills are pending in Oregon, Illinois, Connecticut and Massachusetts. Those efforts are bolstered by the Fifth Circuit ruling, according to experts.
"I've had a lot of enthusiastic conversations over the last couple of weeks with national advocates and also state-based advocates from New Jersey and Louisiana and California who were all very much encouraged by the ruling and wanted to talk about the impact nationally," Porter said.
"This decision is a powerful example of how litigation and out-of-court advocacy can be complementary tools," said Berry.
Against Precedent and the Constitution
But critics say the Fifth Circuit's ruling ignores both the constitution and precedent.
State laws concerning when and if convicted felons can vote are so inconsistent that the idea of any national consensus on the issue is meaningless, Circuit Judge Edith H. Jones wrote in a dissenting opinion in the case.
"A reasonably clever lawyer could find a dozen ways to divvy up states and find a national consensus against any particular practice," Judge Jones said.
States do "vary widely" when it comes to felon voting rights, making the national picture on the issue "entirely confusing," Berry acknowledged.
And Section 2 of the 14th Amendment specifically allows felon disenfranchisement as a criminal punishment, according to Judge Jones.
That section, which reduces the congressional representation of states that disenfranchise their citizens, contains a notable exception: States can disenfranchise citizens who participate in "rebellion, or other crime," Judge Jones explained.
"Yet the majority's interpretation renders the Section 2 proviso meaningless," she said in the dissent. "It is useless for the 14th Amendment to authorize felon disenfranchisement if the practice is made illegal by the Eighth," Judge Jones wrote.
This is where Judge Jones' dissent "goes astray," according to Reilly, who said that "just because something is allowable under one provision, doesn't make it necessarily allowable under every provision."
But it's not just the Eighth and 14th amendments that would conflict under the majority's interpretation, according to the Mississippi attorney general.The Supreme Court ruled in Robinson v. California that the federal Eighth Amendment applies to states through the due process clause in Section 1 of the 14th Amendment, which bars states from depriving citizens of "life, liberty, or property, without due process of law." But Section 2 of the 14th Amendment allows the disenfranchisement of those convicted of certain crimes, the attorney general's office said in its Aug. 18 petition for en banc rehearing of the ruling.
So, the majority's finding requires Section 1 of the 14th Amendment to conflict with Section 2 of the same amendment, the attorney general insisted.
"The Supreme Court has signaled that felon disenfranchisement is not punishment, and the Eighth Amendment cannot be distorted to prohibit what the plain language of the Constitution affirmatively acknowledges as legitimate," a spokesperson for the Mississippi attorney general's office told Law360 in a statement.
But opponents' biggest critique of the ruling is that taking away convicted felons' right to vote is simply not a form of punishment.
Both Judge Jones and the state pointed to the Supreme Court's 1958 ruling in Trop v. Dulles , in which a four-justice plurality found that taking away a bank robber's right to vote constituted "a nonpenal exercise of the power to regulate the franchise."
The Second Circuit echoed that finding in 1967 in Green v. Board of Elections of the City of New York . And as recently as April, the Eleventh Circuit ruled that Alabama's felon disenfranchisement law doesn't constitute punishment, Mississippi's attorney general pointed out.
The Fifth Circuit panel's majority decision in this case "conflicts with controlling precedent at each turn," the attorney general said.
Primed for the High Court
There's a good chance the Supreme Court will have the final say on the issue, say experts.
Mississippi has asked for en banc rehearing, and the full court could "very easily" overturn the panel's 2-1 ruling. If that happens, the plaintiffs will likely appeal to the justices, according to Reilly.
Youngwood and Gochman wouldn't comment on that possibility.
"What I can tell you is we'll continue to stick with the case and the plaintiffs until it's reached its conclusion," Youngwood said.
At the same time, if an en banc court upholds the majority decision, there's "a strong possibility" the state will appeal to the Supreme Court, according to Berry.
The justices may choose not to hear either appeal, of course, given that in June they rejected an appeal of the Fifth Circuit's previous ruling upholding Mississippi's permanent felon disenfranchisement, experts point out.
But the uniqueness of the latest ruling, including its reliance on the Eighth Amendment rather than the 14th, and its possible national implications could make it difficult for the justices to turn the case down, according to Reilly.
Indeed, he said that the state-by-state inconsistencies in how felon voting rights are handled meant that the justices "need to take it."
"I think it would really be hard for them just to ignore it," he added.
So it may be a while before plaintiffs like Hopkins, Parker and Kuhn know if they'll actually be able to vote again. But it's something they very much hope to do soon, according to Youngwood.
"Our plaintiffs brought this case so that they could regain the right to vote, and they are looking very forward to — for most of them — casting their first ballot in decades," Youngwood said.