The Fifth Circuit said opponents of the ban should persuade their ‘fellow citizens that the law should change’ instead of asking judges to invalidate it.
The U.S. Supreme Court turned away a challenge to Mississippi’s lifetime ban on voting by individuals convicted of specific crimes.
Challengers argued the ban is rooted in the racial animus of the Jim Crow era after the Civil War when some states enforced racial segregation.
The Supreme Court declined to review a U.S. Court of Appeals for the Fifth Circuit decision from last year that upheld the ban.
The new decision in Hopkins v. Watson came in an unsigned order on Jan. 27. No justices dissented. The high court did not explain its decision.
The lead petitioner was Dennis Hopkins, a Mississippian who completed the sentence he received for an unspecified disenfranchising offense. Mississippi Secretary of State Michael Watson was the respondent.
Mississippi is one of 10 U.S. states that require formerly incarcerated felons to apply for restoration of voting rights, according to a Movement Advancement Project report.
However, Mississippi “is one of only two states that continues to punish first-time offenders who commit non-violent and non-voting-related felonies with lifetime disenfranchisement,” the petition filed on Nov. 15, 2024, said, urging the Supreme Court to accept the case.
“Mississippi’s harsh and unforgiving felony disenfranchisement scheme … punishes citizens convicted of a wide range of felonies by forever depriving them of the right to vote even after sentence completion, no matter how minor the underlying crime, the age of the citizen at the time of the offense, or the amount of time that has passed since the conviction.”
Mississippi’s Constitution recognizes the right to vote of “every inhabitant of this state, except idiots and insane persons,” who is a U.S. citizen, at least 18 years of age, and has resided in the state for one year.
Section 241 bars from voting anyone who has been “convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.”
This means the right to vote may be taken away for “writing a bad check for $100 or stealing $250 worth of timber,” according to the petition.
The petition said Section 241 is one of the “indirect voter qualifications and procedures” that Mississippi’s 1890 Constitutional Convention adopted “to exclude black citizens from participation in the electoral process.” The legal provision has accomplished its goal given that “over 58% of currently disenfranchised Mississippians who have completed their sentences are Black,” it said.
Section 253 provides that a disenfranchised person may have the right to vote restored upon a two-thirds vote of both houses of the Mississippi Legislature. A pardon by the state’s sitting governor may also restore the right to vote.
From 2013 to 2018, the Mississippi Legislature used Section 253 to give 18 individuals their voting rights back, the petition said.
The petitioners sued the state in a putative—or proposed—class action lawsuit in federal district court in 2018 after losing the right to vote upon finishing their sentences.
In a class action, one or more plaintiffs sue on behalf of a “class,” or a larger group of people who claim to have suffered the same injury because of a defendant. Federal and state court rules govern whether a class action gets certified and is allowed to proceed.
They argued that Section 241 violated the Eighth and 14th amendments and that Section 253 violated the First and 14th amendments.
The district court certified the petitioners’ proposed class, allowing them to represent individuals in Mississippi who had completed their sentences and were disenfranchised under the state constitution, according to the petition.
Despite the state’s opposition, the district court found the petitioners had standing to bring their claims. Standing refers to the right of someone to sue in court. The parties must show a strong enough connection to the claim to justify their participation in a lawsuit.
The district court dismissed the petitioners’ lawsuit except for their race-based equal protection claim against Section 253.
A three-judge panel of the Fifth Circuit held 2–1 on Aug. 8, 2023, that the petitioners lacked standing to pursue their Section 253 claim but had standing to pursue the Section 241 claim.
The panel found that Section 241 of Mississippi’s Constitution does not violate the equal protection clause of the 14th Amendment but does run afoul of the Eighth Amendment’s ban on cruel and unusual punishment.
The full Fifth Circuit took up the case and on July 18, 2024, by a vote of 13–6, reversed the panel and upheld the disenfranchisement provision.
The circuit court noted that the Supreme Court ruled in Richardson v. Ramirez (1974) “that the Equal Protection Clause does not bar States from permanently disenfranchising felons.”
To change a state disenfranchisement law, the political process should be used, the Fifth Circuit said.
“Do the hard work of persuading your fellow citizens that the law should change. The paramount lesson of the Constitution and Richardson is that the changes sought by [the petitioners] … can and must be achieved through public consensus effectuated in the legislative process, not by judicial fiat,” the court said.
Watson urged the Supreme Court not to take up the case in a brief filed on Dec. 13, 2024.
The brief said the Fifth Circuit ruled in Harness v. Watson in 2022 that Section 241 “is not tainted by racial animus.” In June 2023, the Supreme Court declined to take up an appeal of that ruling, albeit over dissents by Justices Ketanji Brown Jackson and Sonia Sotomayor.
Felon disenfranchisement is a policy, not a punishment, and the Richardson precedent should not be overturned, the brief said.
“Nearly all States disenfranchise some felons. And States disenfranchise in such varied ways that a court cannot soundly condemn indefinite disenfranchisement,” the brief stated. “Although many States have relaxed their restrictions on the franchise for felons, that is not a solid basis for condemning the States that maintain firmer restrictions.”
The Epoch Times reached out for comment to Hopkins’s attorney, Jonathan Youngwood of Simpson, Thacher, and Bartlett in New York City, and Watson’s attorney, Mississippi Solicitor General Scott Stewart, but no replies were received by publication time.