Court Upholds Mississippi’s Jim Crow-Era Lifetime Voting Ban

A federal appeals court on Thursday upheld Mississippi’s exceptionally harsh practice of banning tens of thousands of residents with felony convictions from voting for life.

The decision, delivered by the full Fifth Circuit, one of the nation’s most conservative federal appeals courts, overturns a shock ruling by a three-judge panel last year that had struck down the state’s disenfranchisement schemes. Barring people from voting permanently, those judges said, is unconstitutional because it’s a “cruel and unusual punishment.”

While civil rights advocates enjoyed a moment of hope after last year’s ruling, they braced for the full Fifth Circuit to take up the case and reverse it, given its staunchly right-wing reputation. The Fifth Circuit did just that in a 13 to 6 decision on Thursday, rejecting the claim that lifetime disenfranchisement amounted to cruel and unusual punishment. 

“In short, ‘cruel and unusual’ is not the same as ‘harmful and unfair,’” wrote Judge Edith Jones for the majority. The matter should be decided by the legislature, not a court, she said.

Judge James Dennis pushed back in his dissent. “Voting is the lifeblood of our democracy and the deprivation of the right to vote saps citizens of the ability to have a say in how and by whom they are governed,” he wrote.

He added, “Denying released offenders the right to vote takes away their full dignity as citizens, separates them from the rest of their community, and reduces them to ‘other’ status.” All six dissenting judges were selected by Democratic presidents. Twelve of the 13 in the majority were selected by Republicans; they were joined by Judge Irma Carrillo Ramirez, a Biden nominee.

With the November elections fast approaching, the ruling keeps the door firmly shut on people who’ve lost the right to vote—many of whom haven’t gotten to vote for decades, if ever.  Mississippi keeps no transparent record of the exact number of people blocked from voting, but one study estimates that about 50,000 people were disenfranchised between 1994 and 2017 alone. 

The majority of people who are disenfranchised in Mississippi are Black, a product of deep inequalities in the state’s criminal legal system.

“We know this is all about POWER,” Jarrius Adams, an advocate at the nonprofit Mississippi Votes, told Bolts in a text message on Thursday. “African Americans make up 36 percent of Mississippi’s voting-age population but nearly 60 percent of its disenfranchised individuals.

“Imagine if just half of those folks could vote,” Adams continued. “Our elections and elected officials would look much different.”

These numbers are not accidental. Mississippi set up a system of lifetime disenfranchisement when crafting its 1890 constitution, with drafters explicitly saying they wanted to limit Black political power. The authors of that document chose to make people lose the right to vote only when convicted of certain felonies—a list comprising crimes of which they thought Black residents were most likely to be convicted. The state has since amended that list; today, it includes 23 crimes, including theft, perjury, carjacking, and murder.

The only way for someone to regain the right to vote is for Mississippi to adopt a law specifically tailored to that individual. Only 16 people regained their rights through this process this year. 

“We’re living in the community, driving on the streets, working our jobs—but our voice isn’t heard,” Cornelius Clayton, a Mississippi resident who lost his voting rights in 2007 over a conviction for theft and has not been able to vote since, told Bolts last year. 

These rules are punitive even by U.S. standards, which are out of step with most of the rest of the world. Mississippi is one of the 10 states that bars at least some people from voting for life over a felony conviction. (Virginia is the only state with a permanent ban for any felony, though the situation is functionally the same in Tennessee.) In most states, people regain their rights either as soon as they’re released from prison, or when they complete probation and parole. In Maine, Vermont, and Washington, D.C., no one ever loses the right to vote, including in prison, just like in some other countries.

The plaintiffs in the Mississippi case are “exploring next steps,” said Jon Youngwood, co-chair of litigation at ​​Simpson Thacher & Bartlett LLP, a law firm that’s leading this case alongside the Southern Poverty Law Center. 

“Denying broad groups of our citizens, for life, the ability to have a role in determining who governs them diminishes our society and deprives individuals of the full rights of representative government,” Youngwood told Bolts, in an emailed statement. “Our clients remain committed to ensuring that their right to vote is restored.”

If the plaintiffs appeal Thursday’s ruling, the next step would be the conservative U.S. Supreme Court.

Mississippi’s GOP-run legislature earlier this year considered a limited bill that would have narrowed felony disenfranchisement; the bill passed the state House before dying in the Senate. 

There is no path for now for Mississippi advocates to change the rules through a ballot initiative because the state supreme court shut down direct democracy entirely in the state in 2021. Lawmakers have chosen to not revive the initiative process since then.

Some states in recent years have expanded voting rights for people with past felonies, typically where Democrats are in power. Other states, including Virginia and Tennessee, have lately made their rules harsher. Just this week, Nebraska’s Republican attorney general and secretary of state abruptly halted implementation of a law, passed by the GOP-run legislature, that was meant to restore voting rights for an estimated 7,000 people with felony convictions.

Felony disenfranchisement anywhere is an untenable and unjust scheme, argues Paloma Wu, an attorney who helped file the Mississippi case years ago, and who today works at the Mississippi Center for Justice. 

“It’s one of the great success stories of white supremacy that there are so many things that are rooted in white supremacy that we take for granted as normal,” she told Bolts. “People think it’s normal to take away the right to vote from people when they’re convicted of certain crimes. It’s not.”

“The idea that we can somehow look deep in somebody’s soul as to whether they deserve the right to vote, as a citizen of a democracy, is the fundamental lie,” she continued “We should not be hitching anything to the right to vote other than whether they are a citizen.”