Unsurprisingly, en banc Fifth Circuit seeming chilly toward notion that Mississippi’s lifetime felon disenfranchisement violates Eighth Amendment

January 23, 2024

As noted in this prior post, last summer a split Fifht Circuit panel ruled in Hopkins, et al v. Hosemann, No. 19-60662 (5th Cir. Aug. 4, 2023) (available here), that Mississippi’s disenfranchisement for life of persons with certain felony convictions “is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment.” In that post, I predicted that the panel ruling would likely be considered (and reversed) en banc, and this Bloomberg Law report on today’s en banc oral argument certainly does not change my prediction:

Conservatives on the US Court of Appeals for the Fifth Circuit seemed skeptical of ruling for convicted felons seeking to declare a lifetime voting ban in Mississippi cruel and unusual punishment under the US Constitution. Republican appointees on the New Orleans-based court at the en banc argument on Tuesday raised the implications of finding that permanent disenfranchisement of the right to vote is cruel and unusual, and how it could create issues in other contexts.

And some judges suggested that the issue is one for legislators, not the court. Judge Kyle Duncan, a Donald Trump appointee, said that if the same arguments were presented to the Mississippi Legislature, they may “have a lot of purchase, but we are a court of law.”

Judge Edith Jones, a Ronald Reagan appointee who was the lone dissenting vote on the circuit panel whose ruling was reviewed en banc, asked about people convicted of crimes like murder and rape regaining the right to vote.

Judge James Ho, another Trump appointee, asked how far a ruling finding a deprivation of the right to vote is a cruel and unusual punishment could stretch into other issues. Ho suggested that a court ruling that found depriving someone of the right to vote falls under the Eighth Amendment could be raised in other contexts, like a felon’s right to possess a gun or challenges to prison sentences. “If it’s cruel and unusual to deprive felons of one right, it could apply to other rights,” Ho said.

The Mississippi Constitution states that certain felons can’t vote for the rest of their lives, unless two-thirds of each house of the Legislature reinstates the right on an individual basis. A trial court in Mississippi rejected most of the claims by felons, who had completed their sentences, in a pair of class action suits challenging the ban, but said one claim challenging the process to restore voting rights could go to trial. The divided three-judge Fifth Circuit panel ruled in August that the plaintiffs lacked standing to challenge the way voting rights are restored, but that permanently depriving felons of the right to vote was a “cruel and unusual punishment.”

Judge Stephen Higginson, appointed by Barack Obama, questioned Mississippi Solicitor General Scott Stewart about whether the provision is a qualification to vote, or a punishment. Stewart said “nothing on the face” of the provision itself “shows a punitive intent.” Stewart said that voting is “not just a right, it’s a responsibility.” He said that the Supreme Court has already found that states can disenfranchise felons, and that Mississippi had determined that people convicted of certain crimes should not be able to make governing decisions for other citizens….

The en banc Fifth Circuit in 2022 rejected another challenge to the Mississippi voting ban, that alleged it violated the U.S. Constitution’s Equal Protection Clause.

Prior related posts: