Hopkins v. Hosemann

Case: 19-60662 Document: 00516846289 Page: 1 Date Filed: 08/04/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 4, 2023
No. 19-60662 Lyle W. Cayce
consolidated with Clerk
No. 19-60678
Dennis Hopkins, individually and on behalf of a class of all others
similarly situated; Herman Parker, Jr., individually and on behalf of a
class of all others similarly situated; Walter Wayne Kuhn, Jr.,
individually and on behalf of a class of all others similarly situated; Bryon
Demond Coleman, individually and on behalf of a class of all others
similarly situated; Jon O’Neal, individually and on behalf of a class of all
others similarly situated; Earnest Willhite, individually and on behalf
of a class of all others similarly situated,
Plaintiffs—Appellees,
versus
Secretary of State Delbert Hosemann, in his official capacity,
Defendant—Appellant,
Appeal from the United States District Court
for the Southern District of Mississippi
No: 3:18-CV-188
Before King, Jones, and Dennis, Circuit Judges.
James L. Dennis, Circuit Judge:
Case: 19-60662 Document: 00516846289 Page: 2 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
In this class action, Plaintiffs, representing persons who have been
convicted of certain crimes and have completed the terms of their sentences,
challenge their disenfranchisement by two provisions of Article XII of the
Mississippi Constitution of 1890. The first provision, Section 241, mandates
permanent, lifetime disenfranchisement of a person convicted of a crime of
any one of “murder, rape, bribery, theft, arson, obtaining money or goods
under false pretense, perjury, forgery, embezzlement or bigamy.”1 The sec-
ond, Section 253, provides for a discretionary, standardless scheme for the
Mississippi Legislature to restore the right to vote to disenfranchised persons
on an individualized basis by a two-thirds vote of all members of each house
of the Legislature.
Plaintiffs sued Mississippi’s Secretary of State (the “Secretary”),
contending that Section 241 violates the Eighth Amendment’s prohibition on
cruel and unusual punishment and the Fourteenth Amendment’s guarantee
of equal protection under the law. They also claim that Section 253 violates
the Fourteenth Amendment’s guarantee of equal protection of the laws and
the First Amendment guarantee of freedom of speech. The Secretary re-
sponded that Plaintiffs lack Article III standing, that their claims are barred
by the doctrine of state sovereign immunity, and that all of their claims fail
on their merits.
For the reasons explained below, we hold that Plaintiffs are entitled to
prevail on their claim that, as applied to their class, disenfranchisement for
life under Section 241 is unconstitutional cruel and unusual punishment
1
The Mississippi Secretary of State, the defendant here, is required by statute to
treat additional crimes that the Mississippi Attorney General deems to be a species of the
common law crimes listed in Section 241. See Miss. Code. § 23-15-151. For instance,
timber larceny, armed robbery, and larceny under a lease agreement are all deemed by the
Attorney General as disenfranchising crimes though they are not expressly listed in Section
241.
2
Case: 19-60662 Document: 00516846289 Page: 3 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
within the meaning of the Eighth Amendment. In the last fifty years, a na-
tional consensus has emerged among the state legislatures against perma-
nently disenfranchising those who have satisfied their judicially imposed sen-
tences and thus repaid their debts to society. Today, thirty-five states plus
the District of Columbia disavow the practice embodied in Section 241, a su-
permajority whose size is dispositive under controlling Supreme Court prec-
edent. Mississippi stands as an outlier among its sister states, bucking a clear
and consistent trend in our Nation against permanent disenfranchisement.
And in our independent judgment—a judgment under the Eighth Amend-
ment that the Supreme Court requires we make—Section 241’s permanent
disenfranchisement serves no legitimate penological purpose. By severing
former offenders from the body politic forever, Section 241 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. It is
thus a cruel and unusual punishment.
We accordingly reverse the district court’s contrary ruling, render
judgment for Plaintiffs on this claim, and remand the case with instructions
that the district court grant relief declaring Section 241 unconstitutional and
enjoining the Secretary from enforcing Section 241 against the Plaintiffs and
the members of the class they represent. Plaintiffs’ equal protection claim
against the Secretary with respect to Section 241, however, is foreclosed by
the Supreme Court’s decision in Richardson v. Ramirez, 418 U.S. 24 (1974).
Additionally, Plaintiffs lack standing to challenge the legislative process em-
bodied in Section 253 through this action.
I. Factual and Procedural Background
A. Mississippi’s 1890 Constitution and Sections 241 and 253
Sections 241 and 253 of the Mississippi Constitution are, with the ex-
ception of several amendments to Section 241, original to the state’s 1890
3
Case: 19-60662 Document: 00516846289 Page: 4 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Constitution, which was adopted in reaction to the expansion of black suf-
frage and other political rights during Reconstruction. See Harness v. Watson,
47 F.4th 296, 300 (5th Cir. 2022) (en banc). After wresting control of state
government from black leaders and their Republican allies through a cam-
paign of violence and electoral fraud, Mississippi’s white political leadership
called for a new state constitution that would ensure “a home government,
under the control of the white people of the State.” Senator J. Z. George, He
Addresses a Large Audience at His Old Home, The Clarion-Ledger
(Jackson) 1 (Oct. 24, 1889). In 1890, the state legislature voted to convene
a constitutional convention in order to draft and adopt a new state constitu-
tion. From the outset, the object of the 1890 Mississippi Constitutional Con-
vention was clear: to ensure the political supremacy of the white race. See
Harness, 47 F.4th at 318 (Graves, J. dissenting). Key to accomplishing this
end was a package of “voter qualifications and procedures” that delegates
adopted “to exclude black citizens from participation in the electoral pro-
cess.” Miss. State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1251
(N.D. Miss. 1987), aff’d, 932 F.2d 400 (5th Cir. 1991).
Although the delegates were explicit about their goal of white political
control, they were careful to avoid provisions overtly violating the Fifteenth
Amendment’s ban on restricting voting based on race. Convention’s Com-
mittee on the Elective Franchise (the “Franchise Committee”) thus pro-
posed voter qualification requirements that were facially race neutral. These
included the kind of poll taxes, literacy tests, and residency requirements that
were common in the American South during the post-Reconstruction era.
Among these requirements was also a criminal disenfranchisement provision
that remains today as Section 241 of the Mississippi Constitution. The meas-
ure was designed to target as disenfranchising offenses those that the white
delegates thought were more often committed by black men. Harness, 47
F.4th at 300; Ratliff v. Beale, 20 So. 865, 868–69 (Miss. 1896) (explaining that
4
Case: 19-60662 Document: 00516846289 Page: 5 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
in enacting Section 241 the Convention aimed to “obstruct the exercise of
the franchise by the negro race” by including as disenfranchising offenses
only those “to which its weaker”—by which the court meant “black”—
“members were prone.”).
The possibility that the disenfranchisement provisions might ensnare
not only black men but also poor white males caused concern at the
Convention. So, in an effort to mitigate the fear that the disenfranchisement
provisions would also affect whites, the Convention ratified several “escape”
clauses. For example, to reduce the impact of literacy tests on poor white
males, the Convention enacted the “Understanding Clause,” a provision
that allowed a voter to pass a “constitutional interpretation test” by giving a
“reasonable interpretation” of the state constitution. The Franchise
Committee justified this “Understanding Clause” on the grounds that it
would “exclude . . . [n]o white man who has sense enough to go to the mill,”
and urged that the clause would “secure[] a white basis upon which to erect
a permanent State government.” Don’t Like It But Takes It, The Clarion-
Ledger (Jackson) 1 (Oct. 9, 1890).
Another of the escape clauses was the suffrage restoration provision
that is contained in Section 253. Section 253 allows the Mississippi
Legislature to, by a two-thirds vote of the elected members of both houses,
restore the voting rights of any person disenfranchised by Section 241.
Miss. Const. art. XII, § 253. While the record behind the enactment of
Section 253 is scant, its timing and context suggest it was intended to limit
the impact of Section 241’s criminal disenfranchisement provision on white
men, providing a limited “safety net” to allow any whites unintentionally
disenfranchised by Section 241 to escape its effects. And, like the
Understanding Clause, Section 253 includes no objective standards of any
kind, allowing legislators unfettered discretion in restoring the franchise to
individuals.
5
Case: 19-60662 Document: 00516846289 Page: 6 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Mississippi’s 1890 Constitution was adopted by a vote of the delegates
on November 1, 1890, without ratification by the people of Mississippi. Other
Southern states took notice of Mississippi’s “success” in disenfranchising
its black electorate and used the State’s 1890 Constitution as a model when
adopting their own racial disenfranchisement provisions. See Franita Tolson,
What Is Abridgment? A Critique of Two Section Twos, 67 Ala. L. Rev. 433,
469–71 (2015) (noting that South Carolina and North Carolina adopted con-
stitutional disenfranchisement provisions in an effort to limit the black elec-
torate).
Since its enactment, Section 241 has been amended twice. Harness, 47
F.4th at 300. In 1950, “burglary” was removed from the list of disenfranchis-
ing crimes, and in 1968, “murder” and “rape” were added—the latter of-
fenses having been historically excluded because they were not considered
crimes a black person was prone to commit. See Ratliff, 20 So. at 868. Under
Section 241, an individual who is convicted of a crime as minor as writing a
bad check for $100 or stealing less than $250 worth of timber is permanently
disenfranchised. Miss. Code § 97-19-67(1)(d); § 97-17-59.
Section 253 has never been amended, and, with the exception of gu-
bernatorial pardon and the limited restoration for certain World War I and II
veterans, it remains the only means for disenfranchised individuals to regain
the right to vote. In the mid-1980s, an election law task force appointed by
the Mississippi Secretary of State and two separate panels convened by the
Mississippi Legislature proposed repealing Section 253 and replacing it with
an amendment that would automatically restore the right to vote to individ-
uals convicted of disenfranchising crimes upon completion of their sen-
tences. The Legislature, however, ultimately did not adopt this proposal as
part of an election law reform bill enacted in 1986.
6
Case: 19-60662 Document: 00516846289 Page: 7 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Sections 241 and 253 continue to be part of the Mississippi Constitu-
tion and over the years they have been remarkably effective in achieving their
original, racially discriminatory aim. In 2017, 36% of voting-age citizens in
Mississippi were black. Yet, according to data provided by the Mississippi
Administrative Office of the Courts, of the nearly 29,000 Mississippians who
were convicted of disenfranchising offenses and have completed all terms of
their sentences between 1994 and 2017, 58%—or more than 17,000 individu-
als—were black. Only 36% were white. The discretionary legislative re-en-
franchisement permitted by Section 253 does little to alleviate this dispropor-
tionate burden, and, as a practical matter, legislative suffrage is exceedingly
rare: between 2013 and 2018, the Mississippi Legislature restored the right
to vote to only eighteen individuals.
B. The Secretary’s Role in Enforcement of Sections 241 and 253
Federal law requires that each state designate a chief election official
who is “responsible for coordination” of the state’s duties under the Na-
tional Voter Registration Act (“NVRA”). 52 U.S.C. § 20509; see also Volun-
tary Guidance on Implementation of Statewide Voter Registration Lists,
Election Assistance Comm’n, 70 Fed. Reg. 44593-02, 44594 (Aug. 3,
2005) (“The chief State election official is the highest ranking State official
who has, as a primary duty, the responsibility to ensure the lawful administra-
tion of voter registration in Federal elections.”). In Mississippi, the Secretary
of State performs this role. Miss. Code § 23-15-211.1(1). The Secretary is
charged by state law with establishing the instructions and application form
for voter registration. Id. §§ 23-15-39(1), 23-15-47(3). Each municipality’s
clerk, in her capacity as the local registrar of voters, is in turn required to “use
[the] voter registration applications . . . prescribed by the Secretary of State”
when registering voters. Id.§ 23-15-35(1).
7
Case: 19-60662 Document: 00516846289 Page: 8 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
The current Mississippi voter registration application form, as
adopted by the Secretary, states that individuals convicted of certain crimes
in a Mississippi state court are not eligible to register to vote. The form re-
quires an applicant to affirm, on penalty of perjury, that he or she has either
“never been convicted of voter fraud or any other disenfranchising crime”
or has had their voting rights restored. The Secretary is also tasked by state
statute with “implement[ing] and maintain[ing]” an electronic information
processing system containing a “centralized database of all registered voters
in the state.” Id. § 23-15-165(1). This system, referred to as the Statewide
Elections Management System (“SEMS”), is updated by each county’s cir-
cuit clerk on a quarterly basis with a list of persons convicted of any disen-
franchising crime under Section 241; these persons are then purged from the
voter rolls in the database. Id. § 23-15-151.
Finally, the Secretary serves on the State Board of Election Commis-
sioners and is responsible in that capacity for training county election com-
missioners on voter roll maintenance, including the use of SEMS to remove
disqualified electors from voting rolls. Id. § 23-15-211(4). After an elections
commissioner completes annual training, the Secretary provides the commis-
sioner with a certificate that is required for the commissioner to maintain of-
fice. Id. §§ 23-15-211(4)–(5) (providing that election commissioners are re-
quired to attend the Secretary’s elections seminars, upon completion of
which they are to receive a certificate that must be renewed yearly).
In sum, the Secretary is Mississippi’s “chief election officer” and per-
forms key functions in administering and enforcing state election laws, in-
cluding by (1) establishing voter registration instructions and application
forms, which state that a person convicted of any disenfranchising crime is
ineligible to vote; (2) administering the SEMS registered voter database; and
(3) training county election officials through mandatory seminars on their ob-
ligation to purge SEMS of ineligible voters and then certifying these officials.
8
Case: 19-60662 Document: 00516846289 Page: 9 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
C. Proceedings Below
In 2018, six permanently disenfranchised Mississippi citizens filed
this putative class-action lawsuit in federal district court, asserting five fed-
eral constitutional challenges to Sections 241 and 253. Plaintiffs, who were
convicted of various crimes and have completed all terms of their sentences,
sued the Secretary in his official capacity, requesting declaratory and injunc-
tive relief for claimed violations of the First, Eighth, and Fourteenth Amend-
ments of the United States Constitution. Dennis Hopkins, a grandfather and
founder of a local peewee football team, has been disenfranchised since 1998
when he was convicted of grand larceny. Herman Parker Jr., a public em-
ployee with over a decade of service working for the Vicksburg Housing Au-
thority, is disenfranchised for life because he was convicted of grand larceny
at the age of nineteen. And Byron Demond Coleman lost his right to vote in
1997 when he was convicted of receiving stolen property after buying some
refurbished appliances. The district court certified Plaintiffs’ proposed class,
allowing Plaintiffs to represent persons in the state who have been convicted
of a Section 241 disenfranchising offense and who have completed all terms
of their sentences.
Plaintiffs and the Secretary filed cross-motions for summary
judgment. The Secretary contended that Plaintiffs lacked standing, that their
suit was barred by sovereign immunity, and that the claims failed on their
merits. The district court rejected the Secretary’s jurisdictional arguments,
holding that Plaintiffs had standing to bring each of their claims and that the
Secretary was amenable to a suit seeking equitable relief under Ex parte
Young. But, on the merits, the district court granted summary judgment to
the Secretary except as to Plaintiffs’ Section 253 race-based equal protection
claim. On this latter claim only, the court ruled that “questions of fact”
remained as to whether Plaintiffs “met their burden” under controlling
precedent. The court then certified its order for interlocutory appeal.
9
Case: 19-60662 Document: 00516846289 Page: 10 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
The parties filed timely cross-petitions with this court seeking permis-
sion to file an interlocutory appeal. This court granted both petitions and con-
solidated the appeals.
II. Legal Standard
We review an order on summary judgment de novo, applying the same
standard as applicable to the district court. Castellanos-Contreras v. Decatur
Hotels, LLC, 622 F.3d 393, 397 (5th Cir. 2010). Summary judgment is appro-
priate where “the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
III. Discussion
On appeal, Plaintiffs argue that: (1) the district court properly held
that Article III standing was satisfied as to all claims, (2) the Ex parte Young
exception to sovereign immunity allows all claims to be brought against the
Secretary; (3) Section 241’s lifetime voting ban infringes on the fundamental
right to vote, is therefore subject to strict scrutiny, and cannot satisfy such
demanding review; (4) Section 241’s lifetime disenfranchisement violates
the Eighth Amendment’s prohibition on cruel and unusual punishment be-
cause it is punitive and contrary to contemporary standards of decency; (5)
Section 253, the suffrage restoration provision, violates the Equal Protection
Clause because it authorizes legislators to arbitrarily restore (or not restore)
the right to vote to some citizens rather than others, its enactment in 1890
was motivated by racial animus, and it disproportionately impacts black Mis-
sissippians today; and (6) Section 253 violates the First Amendment because
legislators are given the power to exercise “unfettered discretion” in
10
Case: 19-60662 Document: 00516846289 Page: 11 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
determining who can express their constitutionally-protected political views
by voting.2
In response, the Secretary contends that (1) Plaintiffs lack Article III
standing and sovereign immunity bars their claims; (2) the Supreme Court’s
decision in Richardson v. Ramirez, which upheld California’s permanent felon
disenfranchisement scheme against an equal protection challenge, forecloses
Plaintiffs’ equal protection claim; (3) Section 241 cannot violate the Eighth
Amendment because Richardson precludes an Eighth Amendment challenge
to permanent disenfranchisement and because Section 241 does not impose
“punishment” within the meaning of the Eighth Amendment; (4) Section
253’s discretionary procedures for restoration of the franchise do not violate
equal protection under Supreme Court precedent because Plaintiffs failed to
demonstrate that Section 253 was enacted with a discriminatory motive and
currently has a racially disproportionate impact; and (5) Section 253 does not
run afoul of the First Amendment because the First Amendment does not
afford greater protection for voting rights than that already provided by the
Fourteenth Amendment.
We address these arguments in turn, starting as we must with the
question of standing.
A. Article III Standing
The district court denied the Secretary’s motion for summary judg-
ment based on lack of standing, concluding that Plaintiffs have standing to
bring all their claims—the equal protection and Eighth Amendment
2
Plaintiffs did not offensively petition this Court for permission to appeal the
question of whether a standardless re-enfranchisement law violates the First Amendment.
Plaintiffs included defensive argument on this issue because it was raised by the Secretary
in his briefing and in the event it is reached by the Court.
11
Case: 19-60662 Document: 00516846289 Page: 12 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
challenges to Section 241, as well as the equal protection and First Amend-
ment challenges to Section 253.
Article III of the Constitution limits the exercise of federal judicial
power to “Cases” and “Controversies.” See Spokeo, Inc. v. Robins, 578 U.S.
330, 337 (2016) (citing U.S. Const. art. III, § 2). The doctrine of standing
“is an essential and unchanging part of the case-or-controversy requirement
of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
To establish Article III standing, (1) Plaintiffs must have suffered an
“injury in fact” that is “concrete and particularized” and “actual or immi-
nent”; (2) “the injury has to be fairly traceable to the challenged action of
the defendant”; and (3) “it must be likely . . . that the injury will be redressed
by a favorable decision.” Id. at 560–61 (cleaned up). Plaintiffs, as the party
invoking federal jurisdiction, “bear[] the burden of establishing these ele-
ments.” Id. at 561. Furthermore, “‘a plaintiff must demonstrate standing for
each claim he seeks to press’ and ‘for each form of relief’ that is sought.”
Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (quoting Daim-
lerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). We review questions of
standing de novo. Nat’l Rifle Ass’n of Am., Inc. v. McCraw, 719 F.3d 338, 343
(5th Cir. 2013).
Considering Plaintiffs’ standing to assert their various challenges to
each of the provisions at issue, we hold that Plaintiffs have demonstrated
their standing to pursue their Section 241 claims but not their Section 253
claims.
1. Section 241
Plaintiffs challenge the permanent disenfranchisement provision of
Section 241 on the grounds that it violates the Equal Protection Clause of the
Fourteenth Amendment and the Eighth Amendment’s prohibition of cruel
and unusual punishment. The district court concluded that the Secretary’s
12
Case: 19-60662 Document: 00516846289 Page: 13 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
statutory duties managing a statewide computerized election management
system and his designation as the state’s chief elections officer established
that “Plaintiffs’ injuries are sufficiently traceable to and redressable by” the
Secretary. The Secretary disagrees, arguing that because he merely provides
information to local officials who administer elections regarding disqualified
voters, Plaintiffs’ injuries cannot be traced to nor redressed by him.
The district court disagreed, as do we. Plaintiffs’ injuries stemming
from Section 241 are fairly traceable to the Secretary. Designated by federal
law as Mississippi’s chief election officer, the Secretary is tasked with devel-
oping mail voter application forms, 52 U.S.C. § 20508(a)(2), and, under Mis-
sissippi law, is responsible for establishing the instructions and application
form for voter registration. See Miss. Code §§ 23-15-39(1), 23-15-47(3).
The current Mississippi voter registration application and form, as estab-
lished by the Secretary, states that a person convicted of any disenfranchising
crime in a Mississippi court is ineligible to vote and requires that an applicant
affirm that they have never been convicted of such a crime on penalty of per-
jury. Municipal clerks are statutorily required to use an application form evi-
dencing a disenfranchising conviction to deny registration as “prescribed by
the Secretary.” Id. § 23-15-35(1).
On this basis alone, Plaintiffs’ injuries are fairly traceable to the Sec-
retary’s actions. By requiring individuals to declare, on penalty of perjury,
that they have not been convicted of disenfranchising crimes, the voter reg-
istration application that the Secretary developed prohibits individuals con-
victed of disenfranchising crimes from lawfully completing the application
form that is needed in order to vote. See Tex. Democratic Party v. Abbott, 978
F.3d 168, 178 (5th Cir. 2020) (Secretary’s duty to design mail-in-ballot suffi-
cient to confer standing on voters denied the right to vote by mail because of
age).
13
Case: 19-60662 Document: 00516846289 Page: 14 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
But the Secretary’s duties do not end there. The Secretary is also
tasked with “implementing and maintaining” the SEMS database. Miss.
Code § 23-15-165(1). SEMS “constitute[s] the official record of registered
voters in every county of the state,” and therefore plays an essential compo-
nent in purging from the voter rolls individuals convicted of a disenfranchis-
ing crime. Id. For example, SEMS is updated quarterly with a list of individ-
uals convicted of disenfranchising offenses. Id. § 23-15-151. And the Secre-
tary has the statutory responsibility to train local elections officials to use
SEMS to filter out disenfranchised individuals from the SEMS voter data-
base. Id. § 23-15-211(4). Indeed, local elections commissioners can only be
certified as such after attending the Secretary’s annual training, in which he
instructs them to purge the voter rolls. Id. §§ 23-15-211(4)-(5). Though local
officials may be the ones to ultimately remove ineligible voters from their
voter rolls, they do so based on an eligibility determination made by the Sec-
retary and in accordance with training from his office. The Secretary’s con-
duct need not be the proximate cause of a voter’s disenfranchisement in or-
der for the denial of the right to vote to be fairly traceable to him. Bennett v.
Spear, 520 U.S. 154, 168–69 (1997). When a voter is removed from the voter
rolls by a local official acting on information and instructions provided by the
Secretary and in accordance with training from his office, the voter’s injury
is fairly traceable to the Secretary.
Because of these duties, the Secretary is also in a position to redress
Plaintiffs’ alleged injuries. Were the Secretary enjoined from enforcing Sec-
tion 241, as Plaintiffs seek, he could amend Mississippi’s voter registration
form to allow disenfranchised class members to register, cease entering the
names of citizens disqualified under Section 241 into SEMS or, alternatively,
train local election officials to disregard that information in SEMS in main-
taining their local voter rolls.
14
Case: 19-60662 Document: 00516846289 Page: 15 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
In sum, “the Secretary of State ha[s] a role in causing the claimed in-
jury and is in a position to redress it at least in part. That is enough to confer
standing to the voter plaintiffs to sue the Secretary.” Tex. Democratic Party,
978 F.3d at 178. See also Harness v. Hosemann, 988 F.3d 818, 821 (5th Cir.
2021) (finding standing to sue the Secretary for enforcing Section 241), reh’g
en banc granted, opinion vacated, 2 F.4th 501 (5th Cir. 2021), and on reh’g en
banc affirmed sub nom. Harness v. Watson, 47 F.4th 296 (5th Cir. 2022).
2. Section 253
Plaintiffs also challenge Section 253 of Mississippi’s Constitution,
contending that that provision violates the First Amendment and the Four-
teenth Amendment’s Equal Protection Clause. The district court stated that
the Secretary’s role in Section 253 is “slight,” but nevertheless found that
Plaintiffs “minimally demonstrated standing” with respect to these claims
because the Secretary is Mississippi’s “chief election officer and maintains
SEMS, which would presumably be involved in one of the final steps in re-
turning a convicted felon to the voting rolls after he or she successfully files
a section 253 petition.” Since the Secretary had “some connection with the
enforcement of the act,” the district court concluded that Plaintiffs had
standing to sue.
We observe that Plaintiffs characterize their injury not as the Secre-
tary’s implementation and enforcement of Section 253 but instead as the
“unconstitutional burden” the provision places on individuals seeking to re-
gain the right to vote through the passage of a suffrage bill. More specifically,
this burden is having to petition the Legislature for a suffrage bill and then
navigate the standardless and arbitrary process to pass the bill. This legisla-
tive process that Plaintiffs challenge begins and ends without the Secretary’s
involvement. The Secretary, in his official capacity, does not sponsor, draft,
debate, vote on, or otherwise officially impact the passage or denial of a
15
Case: 19-60662 Document: 00516846289 Page: 16 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
suffrage restoration bill under Section 253. True, the Secretary will enforce
any suffrage bill the Legislature happens to pass. But Plaintiffs’ issue is not
with the enforcement of any particular suffrage bill or suffrage bills generally,
but with the Legislature’s caprice in failing to enact them in the first place.
Thus, the injury Plaintiffs complain of—the legislative process for restoration
of the franchise—is not fairly traceable to the Secretary but instead is “the
result of the independent action of some third party not before the court.”
Lujan, 504 U.S. at 560 (cleaned up). Accordingly, although Plaintiffs have
established standing as to their claims against Section 241, they lack standing
as to their claims against Section 253.
B. Sovereign Immunity
There is one final jurisdictional matter: Eleventh Amendment sover-
eign immunity, which the Secretary contends bars Plaintiffs’ challenge to
Section 241. The Eleventh Amendment generally precludes private suits
against nonconsenting states in federal court. City of Austin v. Paxton, 943
F.3d 993, 997 (5th Cir. 2019). Sovereign immunity extends to suits against
state officials that are, in effect, a suit against a state. Id. (citing Edelman v.
Jordan, 415 U.S. 651, 663–69 (1974)). However, under the equitable excep-
tion to Eleventh Amendment immunity established in Ex parte Young, 209
U.S. 123, 155–56 (1908), a plaintiff may bring suit for injunctive or declaratory
relief against a state official, in her official capacity, to “enjoin enforcement
of a state law that conflicts with federal law.” Air Evac EMS, Inc. v. Tex. Dep’t
of Ins., 851 F.3d 507, 515 (5th Cir. 2017). Our court has observed that there is
a “significant[] overlap” between the “Article III standing analysis and Ex
parte Young analysis.” City of Austin, 943 F.3d at 1002 (quoting Air Evac
EMS, Inc., 851 F.3d at 520).
Whether the Secretary is subject to suit under the Ex parte Young ex-
ceptions first depends upon whether the “complaint alleges an ongoing
16
Case: 19-60662 Document: 00516846289 Page: 17 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
violation of federal law and seeks relief properly characterized as prospec-
tive.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645
(2002). Plaintiffs’ complaint alleges that the enforcement of Section 241 con-
tinues to wrongfully deprive them of the franchise in violation of the Eighth
and Fourteenth Amendments and prays for declaratory and injunctive relief
to stop the ongoing violation of their rights. Plaintiffs’ complaint thus re-
quests relief that is permissible under Ex parte Young.
The next inquiry concerns whether the defendant, “by virtue of his
office, has some connection with the enforcement” of Section 241. Ex parte
Young, 209 U.S. at 157. Without this requisite connection, the suit “is merely
making [the state officer] a party as a representative of the state, and thereby
attempting to make the state a party.” Id. Although “[t]his circuit has not
spoken with conviction” regarding the precise scope of the connection re-
quired under Ex parte Young, a sufficient connection certainly exists when
there exists a “‘special relationship’ between the state actor and the chal-
lenged” provision. Tex. Democratic Party, 978 F.3d at 179 (quoting K.P. v. Le-
Blanc, 627 F.3d 115, 123 (5th Cir. 2010)). This standard is met here.
As explained in our standing analysis regarding Section 241 supra, the
Secretary is charged under state law with establishing the instructions and
application form for voter registration, and the form that the Secretary has
developed specifically states that persons convicted of disenfranchising of-
fenses are ineligible to vote. Further, state law requires the Secretary to de-
velop and implement SEMS, which is “the official record of registered voters
in every county of the state,” Miss. Code § 23-15-165(1), and to train local
elections officials to use SEMS to purge disenfranchised persons from the
SEMS voter database. Id. § 23-15-211(4). Although local elections officials
may also play a role in the disenfranchisement process, this does not alter or
reduce the Secretary’s clear connection to the enforcement of Section 241.
17
Case: 19-60662 Document: 00516846289 Page: 18 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Because Plaintiffs have standing to pursue their Section 241 claims
and because the Ex parte Young exception to state sovereign immunity ap-
plies, we have jurisdiction over Plaintiffs’ appeal. We therefore proceed to
the merits of their challenges to Section 241.
C. Equal Protection Challenge to Section 241
Plaintiffs contend that permanent disenfranchisement under Section
241 of the Mississippi Constitution violates the Equal Protection Clause of
the Fourteenth Amendment. This claim, Plaintiffs acknowledge, must be
reconciled with the Supreme Court’s decision in Richardson v. Ramirez. 418
U.S. 24 (1974).
In Richardson, former felons who had completed all terms of their
court-imposed sentences challenged a set of California laws that permanently
disenfranchised any person convicted of an “infamous crime” unless and un-
til the person obtained a court order or executive pardon that restored the
franchise. Id. at 26–27. The plaintiffs argued that, when applied to a class of
felons whose terms of incarceration and parole had expired, California’s per-
manent disenfranchisement scheme violated the Equal Protection Clause by
burdening a fundamental right without a compelling state interest. Id. at 27.
In considering the plaintiffs’ claim, the Supreme Court looked not only to
Section 1 of the Fourteenth Amendment, where the Equal Protection Clause
is located, but also to the “less familiar” Section 2 of that Amendment. Id. at
42. Section 2 provides, in relevant part:
[W]hen the right to vote . . . is denied . . . or in any way abridged,
except for participation in rebellion, or other crime, the basis of
[a State’s] representation [in Congress] . . . shall be reduced in
the proportion which the number of such [disenfranchised] cit-
izens shall bear to whole number of [citizens eligible to vote in
that state].
18
Case: 19-60662 Document: 00516846289 Page: 19 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
U.S. Const. amend. XIV, § 2. Thus, Section 2 of the Fourteenth Amend-
ment imposes a penalty of reduced congressional representation on states
that deny or abridge the right to vote for reasons other than “participation in
rebellion, or other crime.” Id.
The Court ultimately rejected the plaintiffs’ challenge, relying pri-
marily on Section 2. The Court pointed out that the phrase “except for par-
ticipation in rebellion, or other crime” (the “other crime” exception) ex-
empted states like California that disenfranchised their citizens because of
felony convictions from the amendment’s sanction of reduced representa-
tion. Id. at 55. From this observation, the Court posited that “those who
framed and adopted the Fourteenth Amendment could not have intended to
prohibit outright in [the Equal Protection Clause of Section] 1 of that Amend-
ment, that which was expressly exempted from the lesser sanction of reduced
representation by [Section] 2 of the Amendment.” Id. at 43. In light of the
“affirmative sanction” for “the exclusion of felons from the vote in [Section]
2 of the Fourteenth Amendment,” the Court held that California laws per-
manently disenfranchising “convicted felons who have completed their sen-
tences and paroles” did not violate the Equal Protection Clause. Id. at 56.
Under binding Supreme Court precedent, then, state laws that permanently
disenfranchise convicted felons are not per se unconstitutional on equal pro-
tection grounds.3
3
Although we are bound by the Supreme Court’s holding in Richardson, we do not
contend here that the Richardson majority’s reading of Section 2 is the only plausible
interpretation of the provision. Justice Marshall, dissenting in Richardson, forcefully argued
that the disenfranchisement of ex-felons must withstand the requirements of the Equal
Protection Clause because neither the fact that multiple States “had felon
disenfranchisement laws at the time of the adoption of the Fourteenth Amendment, nor
that such disenfranchisement was specifically excepted from the special remedy of [Section
2], can serve to insulate such disenfranchisement from equal protection scrutiny.”
19
Case: 19-60662 Document: 00516846289 Page: 20 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Despite Richardson’s holding, Plaintiffs urge that it does not foreclose
their equal protection claim. They advance what they characterize as a novel
textualist argument that was not raised in Richardson—that Section 2’s
“other crime” exception to reduced representation applies only when laws
temporarily “abridge” the right to vote and does not apply when laws, like
Section 241 of Mississippi’s Constitution, permanently “deny” the franchise.
Plaintiffs thus argue that permanent felon disenfranchisement is not “ex-
pressly exempted” from Section 2’s representation penalty, and, therefore,
Richardson’s determination that the Equal Protection Clause in Section 1
does not prohibit felon disenfranchisement laws is inapplicable. Id. at 43.
Though Plaintiffs do not expressly ask us to overrule Richardson—a
power we undoubtedly lack, Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 782
(5th Cir. 2012)—their argument calls for us to invalidate on equal protection
grounds a state law authorizing permanent disenfranchisement of persons
convicted of certain crimes. But that is precisely the type of law the Richard-
son Court expressly upheld against an equal protection attack. The California
laws the Richardson plaintiffs challenged were not temporarily abridging dis-
enfranchisement laws, but permanent ones like the Mississippi law chal-
lenged here. See Richardson, 418 U.S. at 27–28 (“At the time respondents
were refused registration” . . . the California Constitution provided that no
person convicted of an infamous crime “shall ever exercise the privileges of
an elector in this State.”) (emphasis added). Richardson, therefore, applied
Section 2’s “other crime” exception to permanent disenfranchisement.
Whether the Supreme Court majority thought California’s permanent disen-
franchisement was a “denial” of the right to vote or an “abridgment” is
Richardson, 418 U.S. at 74, 77 (Marshall, J., dissenting, joined by Brennan, J.) (concluding
that Section 2 “was not intended and should not be construed to be a limitation on the other
sections of the Fourteenth Amendment”).
20
Case: 19-60662 Document: 00516846289 Page: 21 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
immaterial. The Court clearly was of the opinion that California’s constitu-
tional and statutory scheme—which permanently disenfranchised individu-
als convicted of “infamous crimes”—fell within the “other crime” excep-
tion found in Section 2 of the Fourteenth Amendment. See id. at 54–55. The
Court thus necessarily rejected an argument that the “other crime” excep-
tion applied only to temporary disenfranchisement.
In sum, as an “inferior court,” U.S. Const. art. III, § 1, we are
bound by the Supreme Court’s decision in Richardson, see Ballew, 668 F.3d at
782, and therefore must conclude that Section 241 of Mississippi’s Constitu-
tion does not violate the Equal Protection Clause by burdening this funda-
mental right.4 The district court thus correctly granted summary judgment
to the Secretary on this claim.
4
Plaintiffs cite to several cases to support their contention that “[e]ven if the Rich-
ardson Court had assumed that the ‘other crime’ exception modifies the words ‘is denied’
as well as the phrase ‘or in any way abridged,’ the Supreme Court’s unstated assumption
does not foreclose consideration of this question.” We find this argument unavailing. The
cases cited by Plaintiffs stand for the proposition that legal questions neither raised before
nor considered by a prior court do not constitute binding precedent. See, e.g., Cooper Indus.,
Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (refusing to rely on dictum in another
case to resolve the plaintiff’s alternative argument, which was not briefed by the plaintiff
and which would have required the court to decide a question that was “a significant issue
in its own right”); Webster v. Fall, 266 U.S. 507, 511 (1925) (explaining in a case where an
indispensable party was not joined or added as a litigant that earlier decisions in which the
Court reached the merits of a dispute despite the absence of an arguably necessary party
could not serve as binding precedent on the requirement of such a party’s presence because
that issue had not been “suggested or decided” in the earlier cases); Brecht v. Abrahamson,
507 US. 619, 631 (1993) (in considering whether the harmless-error standard of review ap-
plied in federal habeas cases, the Supreme Court reasoned that even though it was applied
in such a manner in the past, its application “had never squarely addressed the issue,” and
therefore was “free to address [that] issue on the merits”). In the instant case, the legal
question of whether state laws providing for permanent disenfranchisement of convicted
felons violate equal protection has already been squarely passed upon by the Supreme
Court. See Richardson, 418 U.S. at 24.
21
Case: 19-60662 Document: 00516846289 Page: 22 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
D. Eighth Amendment Challenge to Section 241
Plaintiffs contend that permanent disenfranchisement by Section 241
is cruel and unusual punishment that violates the Eighth Amendment.
Section 241 disenfranchisement begins upon a person’s conviction of a
Section 241 offense and continues for the rest of his life. The Eighth
Amendment provides: “Excessive bail shall not be required, nor excessive
fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.
amend. VIII. “To determine whether a punishment is cruel and unusual,
courts must look beyond historical conceptions to ‘the evolving standards of
decency that mark the progress of a maturing society’ . . . ‘The standard itself
remains the same, but its applicability must change as the basic mores of
society change.’” Graham v. Florida, 560 U.S. 48, 58 (2010) (first quoting
Estelle v. Gamble, 429 U.S. 97, 102 (1976); then quoting Kennedy v. Louisiana,
554 U.S. 407, 418 (2008)). The district court failed to apply this standard to
Section 241, concluding in error that Section 2 of the Fourteenth
Amendment placed the practice of permanent felon disenfranchisement
Plaintiffs also point to the Ninth Circuit’s treatment of felon disenfranchisement
in Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010), in which the plaintiffs challenged an
Arizona statute that permanently disenfranchised convicted felons. The plaintiffs sought
to “escap[e] Richardson’s long shadow” by contending that the “other crime” exception
in Section 2 “only permit[ted] disenfranchisement for common-law felonies” and did not
apply to statutory felonies. Id. at 1071, 1073–74 (9th Cir. 2010) (O’Connor, J., sitting by
designation). The Ninth Circuit acknowledged that the plaintiffs’ proposed reading of
Section 2 was “in extreme tension with Richardson” given that the Supreme Court upheld
a permanent felon disenfranchisement scheme without evincing any “concern with
whether any particular felony was one recognized at common law.” Id. at 1074, 1078(quoting Richardson, 418 U.S. at 56). Nevertheless, since neither the Ninth Circuit nor the
Supreme Court “ha[d] directly addressed this precise question”—the types of crimes
within the ambit of Section 2’s “other crime” exception—the court considered (and
rejected) the merits of plaintiffs’ argument. Id. at 1074. By contrast, Plaintiffs here ask this
court to adopt a construction of Section 2 that is not merely in tension with Richardson but
instead directly conflicts with that decision’s holding. That we cannot do.
22
Case: 19-60662 Document: 00516846289 Page: 23 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
beyond the reach of the Eighth Amendment. We reverse the district court’s
entry of summary judgment for the Secretary. For the reasons hereinafter
assigned, we instead render judgment for the plaintiffs declaring that
permanent disenfranchisement inflicted by Section 241 of Article XII of the
Mississippi Constitution is cruel and unusual punishment in violation of the
Eighth Amendment.
1. Richardson Applied Only Equal Protection Precepts and Therefore
Does Not Foreclose Plaintiffs’ Eighth Amendment Claim
Before engaging in the Eighth Amendment analysis, we point out that
the district court erred by omitting entirely to perform that assessment in the
present case. Relying on the Supreme Court’s decision in Richardson, the
district court concluded that Plaintiffs’ Eighth Amendment claim failed
because it would be “internally inconsistent for the Eighth Amendment to
prohibit criminal disenfranchisement while § 2 of the Fourteenth
Amendment permits it.” Harness v. Hosemann, No. 3:17-CV-791, 2019 WL
8113392, at *11 (S.D. Miss. Aug. 7, 2019). That was error. Richardson held
only that permanent disenfranchisement did not violate the Equal Protection
Clause of the Fourteenth Amendment by burdening a fundamental right
without adequate justification. The Court did not consider or decide whether
a permanent ban on felons’ voting after they completely served their
sentences violates the Eighth Amendment’s prohibition on cruel and unusual
punishment.
The Supreme Court has “rejected the view that the applicability of
one constitutional amendment pre-empts the guarantees of another . . . The
proper question is not which Amendment controls but whether either
Amendment is violated.” United States v. James Daniel Good Real Prop., 510
U.S. 43, 49–50 (1993). Though Richardson contemplated that felon
disenfranchisement was implicitly authorized by Section 2 of the Fourteenth
23
Case: 19-60662 Document: 00516846289 Page: 24 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Amendment, “provisions that grant Congress or the States specific power to
legislate in certain areas . . . are always subject to the limitation that they must
not be exercised in a way that violates other specific provisions of the
Constitution.” Williams v. Rhodes, 393 U.S. 23, 29 (1968); see also Soldal v.
Cook Cnty., Ill., 506 U.S. 56, 70 (1992) (“Certain wrongs affect more than a
single right and, accordingly, can implicate more than one of the
Constitution’s commands.”). Indeed, this fundamental principle of
constitutional construction has been applied by the Supreme Court in
circumstances squarely analogous to the case at bar. In Hunter v. Underwood,
471 U.S. 222, 227–29 (1985), the Court held that a provision of Alabama’s
Constitution that disenfranchised persons convicted of crimes “involving
moral turpitude” violated the Equal Protection Clause in Section 1 of the
Fourteenth Amendment because of the provision’s racially discriminatory
origins and impact. The Court explained that, despite the “implicit
authorization of § 2 [of the Fourteenth Amendment] to deny the vote to
citizens for ‘participation in rebellion, or other crime,’” Section 2 did not
“permit . . . purposeful racial discrimination” that “violates § 1 of the
Fourteenth Amendment.” Id. at 233 (internal citation omitted). “[W]e are
confident that § 2 was not designed to permit the purposeful racial
discrimination . . . which otherwise violates § 1 of the Fourteenth
Amendment,” the Court explained. Id. “Nothing in our opinion in
Richardson v. Ramirez, supra, suggests the contrary.” Id.Further, there is no reason to think the Eighth Amendment’s
protections may, for some special reason, be nullified by the Constitution’s
countenancing a particular type of punishment. Courts, including ours, have
recognized that the Eighth Amendment constrains states’ power to impose
“cruel and unusual” conditions of involuntary servitude on prisoners,
despite the fact that the Thirteenth Amendment “specifically allows
involuntary servitude as punishment after conviction of a crime.” Murray v.
24
Case: 19-60662 Document: 00516846289 Page: 25 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Miss. Dep’t of Corr., 911 F.2d 1167, 1168 (5th Cir. 1990). Although the
Thirteenth Amendment may authorize the state to impose work obligations
on prisoners, “there are circumstances in which prison work requirements
can constitute cruel and unusual punishment” in violation of the Eighth
Amendment. Ray v. Mabry, 556 F.2d 881, 882 (8th Cir. 1977) (holding that
prisoner stated an Eighth Amendment claim when he alleged that he was
forced to work “90 to 120 hours per week;” “that he cannot do the hard labor
assigned to him because he is physically disabled;” and “that he is constantly
cursed and threatened by prison supervisors”); see also Williams v. Henagan,
595 F.3d 610, 622 n.18 (5th Cir. 2010) (“Prison work conditions may
however, amount to cruel and unusual punishment.”).
The district court erred in concluding that Section 2 of the Fourteenth
Amendment’s implicit authorization of permanent disenfranchisement
settles all constitutional questions about the practice. Fundamental tenets of
constitutional jurisprudence and on-point Supreme Court precedent makes
clear that Section 2 does not override all other constitutional protections.
Although the Fourteenth Amendment has been interpreted to implicitly
authorize felon disenfranchisement, disenfranchisement schemes
established under this authority must still be consonant with other
constitutional commands, including those embodied in the Eighth
Amendment. The protections to individual liberty and dignity afforded by
each provision of the Constitution do not evaporate when one provision
permits states to legislate in a certain field. “Obviously we must reject the
notion that [Section 2], gives the States power to impose burdens on the right
to vote, where such burdens are expressly prohibited in other constitutional
provisions.” Rhodes, 393 U.S. at 29.
Furthermore, Richardson only addressed an equal protection
challenge to permanent disenfranchisement. It did not examine or rule upon
an Eighth Amendment claim, as the present case requires. Whether a
25
Case: 19-60662 Document: 00516846289 Page: 26 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
punishment is “cruel and unusual” within the meaning of the Eighth
Amendment requires ascertaining society’s “evolving standards of
decency,” which, in turn, are determined by “evidence of contemporary
values.” Graham, 560 U.S. at 58, 62. Neither Richardson, which was decided
nearly half a century ago, nor the 19th century history of Section 2 that the
opinion recounted appear obviously relevant to the “evolving standards of
decency” of today that the Eighth Amendment embodies. Id. at 58. We
therefore see no way in which Section 2, as interpreted by Richardson,
precludes an Eighth Amendment challenge to permanent criminal
disenfranchisement today.
Our dissenting colleague contends that Richardson forecloses nearly
all constitutional challenges to felon disenfranchisement. The argument
goes: Because the Eighth Amendment’s protection from cruel and unusual
punishment is incorporated against the states through the Due Process
Clause in Section One of the Fourteenth Amendment, and because
Richardson held that California’s permanent felon disenfranchisement did
not violate Section One’s Equal Protection Clause (a different clause than
the Due Process Clause in Section One), Mississippi’s law cannot violate the
Eighth Amendment through Section One’s Due Process Clause. One need
not do more than restate the dissent’s argument to demonstrate its lack of
merit. As an initial matter, Richardson decided an Equal Protection challenge
to permanent felon disenfranchisement, not a challenge based on a
substantive right incorporated through the Due Process Clause. Richardson’s
reading of how the Equal Protection Clause in Section One is limited by the
representation reduction mechanism in Section Two says nothing about
narrowing the scope of substantive rights incorporated through the Due
Process Clause. The Supreme Court has made clear that the substantive
rights contained in the Bill of Rights—including those of the Eighth
Amendment—are not diluted or somehow lesser in content by virtue of their
26
Case: 19-60662 Document: 00516846289 Page: 27 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
being incorporated through the Fourteenth Amendment. To the contrary,
“incorporated Bill of Rights protections ‘are all to be enforced against the
States under the Fourteenth Amendment according to the same standards
that protect those personal rights against federal encroachment.’” McDonald
v. City of Chicago, 561 U.S. 742, 765 (2010) (quoting Malloy v. Hogan, 378
U.S. 1, 10 (1964)); see also Timbs v. Indiana, 139 S. Ct. 682, 687 (2019)
(“Thus, if a Bill of Rights protection is incorporated, there is no daylight
between the federal and state conduct it prohibits or requires.”); Kennedy v.
Louisiana, 554 U.S. 407, 419 (2008) (applying the Eighth Amendment
through the Fourteenth by looking to the “norms that currently prevail,” not
“the standards that prevailed when the Eighth Amendment was adopted in
1791”). The dissent’s novel theory of constitutional law is unsupportable.
The dissent’s citations to generic canons of statutory interpretation
are also meritless. The dissent argues that we allow the Eighth Amendment’s
“general” prohibition on cruel and unusual punishment to override Section
Two’s “specific” authorization of felon disenfranchisement as punishment.
As an initial matter, we do not adopt the dissent’s characterization of the
Eighth Amendment as a “general” provision that must yield to the implicit
authorization of felon disenfranchisement in Section 2 of the Fourteenth
Amendment. Were that true, then no constitutional challenge to a state’s
felon disenfranchisement law would be possible, a result that is plainly
incompatible with the Supreme Court’s decision in Hunter. The dissent
acknowledges that constitutional grants of power to legislate in a certain area
“are always subject to the limitation that they may not be exercised in a way
that violates other specific provisions of the Constitution.” Post at 57
(quoting Williams v. Rhodes, 393 U.S. 23, 29 (1968)). Our reading employs
this canon of constitutional interpretation. It is the interpretive method that
the Supreme Court has expressly instructed the lower courts to follow. And
it is the one the Court has applied to an analogous question of whether felon
27
Case: 19-60662 Document: 00516846289 Page: 28 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
disenfranchisement may violate a substantive constitutional right. The
answer to that question is clear: a state’s felon disenfranchisement law may
violate the Constitution, Section Two notwithstanding. See Hunter, 471 U.S.
at 233.
We consider, then, whether Mississippi’s permanent
disenfranchisement scheme is supportable today under the Eighth
Amendment.
2. Permanent Disenfranchisement Under Section 241 is Punish-
ment
As is self-evident from its text, the Eighth Amendment’s Cruel and
Unusual Punishment Clause applies only to punishments. The threshold
Eighth Amendment issue therefore is whether Section 241 constitutes a
punishment or, instead, a non-punitive regulation of the electoral franchise.
Our court has adopted “an intents-effects test” to help determine
whether a statute constitutes punishment under various constitutional
provisions, including the Eighth Amendment. Does 1-7 v. Abbott, 945 F.3d
307, 314 (5th Cir. 2019). Under this test, “[i]f the intention of the legislature
was to impose punishment, that ends the inquiry[.]” Id. (quoting Smith v.
Doe, 538 U.S. 84, 92 (2003)). In reviewing the legal context in which the
Mississippi Constitutional Convention of 1890 enacted Section 241, we find
strong evidence that the body’s intent was to establish a punitive law,
punishing and disenfranchising the targeted convicts without any legitimate
penological goals.
As one of the “fundamental conditions” of Mississippi’s reentry to
the Union following the Civil War, Congress forbade “the constitution of
Mississippi” from ever being “amended or changed [so] as to deprive any
citizen or class of citizens of the United States of the right to vote . . . except
as a punishment for such crimes as are now felonies at common law, whereof
28
Case: 19-60662 Document: 00516846289 Page: 29 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
they shall have been duly convicted.” Act of February 23, 1870, ch. 19, 16
Stat. 67 (“Readmission Act”) (emphasis added). This condition on
readmission, also imposed on other formerly Confederate states, was meant
to address the nefarious tactics to restrict black suffrage already emerging in
the Southern states despite the Fifteenth Amendment’s recent passage. See
Oregon v. Mitchell, 400 U.S. 112, 167 n.18 (1970). Under the plain language of
the Readmission Act, Mississippi may only alter its constitution to authorize
disenfranchisement if it does so as a punishment for a common law felony
offense. This fundamental condition on Mississippi’s power to enact a
disenfranchisement scheme cannot be ignored: “the manner of [Section
241’s] codification . . . [is] probative of the legislature’s intent.” Smith, 538
U.S. at 94. Therefore, Section 241 of Mississippi’s 1890 Constitution—a
post-Readmission Act felon disenfranchisement provision—must be
construed as a punitive measure for felony convictions in order for the
provision to comply with binding federal law. See Jones v. Governor of Fla.,
950 F.3d 795, 819 (11th Cir. 2020) (concluding that “[d]isenfranchisement is
punishment,” based in part on the fact that “the Readmission Act of Florida
authorized felon disenfranchisement only as punishment.”) (emphasis in
original).5
5
The dissent points out that the Eleventh Circuit reached a contrary conclusion in
a different case, one involving whether an amendment to Alabama’s voter
disenfranchisement law was retroactive punishment that violated the Ex Post Facto clause.
Post at 62 (discussing Thompson v. Alabama, 65 F.4th 1288, 1300 (11th Cir. 2023). True, the
Eleventh Circuit did conclude that Alabama’s new law—ratified by the state’s voters in
1996—did not constitute punishment. Id. at 1303–1308. But, contrary to the dissent’s
claim, the Eleventh Circuit did not reach this conclusion despite the terms of the
Readmission Act. The court never once mentioned the Readmission Act, let alone analyzed
whether Alabama’s modern law was punitive in light of the limitations the Readmission
Act placed on the state’s ability to disenfranchise its citizens. This case provides no support
for the dissent’s decision to ignore the plain terms of Mississippi’s Readmission Act.
29
Case: 19-60662 Document: 00516846289 Page: 30 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Though there is historical evidence that some members of the 1890
Mississippi Constitutional Convention viewed the Mississippi Readmission
Act generally as an unconstitutional intrusion into Mississippi’s power to
regulate elections,6 there is no evidence that the Convention viewed the
Act’s limitation of disenfranchisement to cases of criminal punishment as
invalid. More importantly, to conclude that Section 241 was not intended to
impose punishment would require us to also conclude that Mississippi has
been, and continues to be, in violation of the Readmission Act. Such a
dramatic holding is not only unwarranted given the complete lack of evidence
that Section 241 was intended to contravene the Readmission Act, but it
would also expose Mississippi to broad liability for this violation. See Williams
ex rel. J.E. v. Reeves, 954 F.3d 729, 739 (5th Cir. 2020) (allowing a claim that
Mississippi violated the education provisions of the Readmission Act to
proceed). Faced with the choice between reading Section 241 to comply with
applicable federal law or reading it to violate the Readmission Act, we should
“choose the interpretation . . . that has a chance of avoiding federal
Indeed, as the Thompson court itself noted, “disenfranchisement can be penal or
nonpenal.” Id. at 1303. “Accordingly, courts must determine the legislative intent behind
the felon disenfranchisement statute or constitutional provision under consideration before
holding that it is penal or nonpenal for constitutional purposes.” Id. And here in this case,
we have strong evidence of intent that the Eleventh Circuit never considered—the plain
text of Mississippi’s Readmission Act which prohibits disenfranchisement “except as a
punishment for such crimes as are now felonies at common law.” It is no wonder the cases
reach different conclusions.
6
The Convention’s Judiciary Committee produced a report implying that the
“fundamental conditions” of readmission that the Act purported to impose on the State
exceeded Congress’s constitutional powers. Proceedings of the
Constitutional Convention at 83-87; see also William Alexander Mabry,
Disenfranchisement of the Negro in Mississippi Vol 4. No. 3 Journal of Southern
History 318, 325 (1938). Notably, this report concluded that franchise regulations like
poll taxes and residency requirements were permitted under the Readmission Act. It was
silent on the Act’s limitation of felon disenfranchisement to punishment.
30
Case: 19-60662 Document: 00516846289 Page: 31 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
preemption.” Planned Parenthood of Houston and Se. Tex. v. Sanchez, 403 F.3d
324, 342 (5th Cir. 2005).7
Neither the Secretary nor the dissent seriously engage with Plaintiffs’
argument that the Readmission Act determines Section 241’s purpose. The
Secretary asserts that Plaintiffs’ reliance on the Readmission Act to
determine the Convention’s intent is “self-defeating” and “illogical”
because the Act permits disenfranchisement as punishment, and therefore
ultimately undermines Plaintiffs’ Eighth Amendment claim—an argument
the dissent echoes. This argument attacks the wrong part of the analysis,
failing to address the threshold question: whether Section 241’s
disenfranchisement inflicts a punishment in the first place. As to that
question, the Readmission Act’s authorization of disenfranchisement as
punishment that the Secretary relies on supports Plaintiffs’ position that the
law is punishment. The Secretary and dissent also argue that the plain text of
Section 241’s criminal disenfranchisement provisions evinces no intention to
punish and appears alongside nonpunitive regulations like age, competency,
and residency requirements. We are unconvinced, however, that the
disenfranchisement provisions’ mere placement alongside regulatory
franchise provisions is strong evidence that the former were not intended as
punishment. “The location and labels of a statutory provision do not by
themselves transform a [criminal] remedy into a [civil] one.” Smith, 538 U.S.
at 94 (2003); see also Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon, 515 U.S. 687, 702 (1995) (legislators can intend one provision of a law
7
The dissent wishes to ignore the Readmission Act, declaring that the question
whether Mississippi would violate the Act by passing non-punitive disenfranchisement
regulations “is not before us.” Post at 62. With respect, we fail to see how the dissent’s
conclusion—that Mississippi’s disenfranchisement scheme is not punitive—would not
immediately raise the question (and likely answer it) of whether the state had violated the
terms of its readmission.
31
Case: 19-60662 Document: 00516846289 Page: 32 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
to have “a character of its own not to be submerged by its association” with
neighboring provisions). Finally, the Secretary argues in a footnote that
reading the Readmission Act to impose limits on Mississippi’s power to
disenfranchise—to read the Act to mean what it says—would violate the
principle of “equal sovereignty,” citing to Shelby County v. Holder, 570 U.S.
529 (2013). Shelby County, though, held no such thing. It expressly
recognized that Congress “may draft” a law imposing burdens and
limitations on some states and not others, and held merely that the method
by which the Voting Rights Act did so was no longer justified given political
and social changes since its formulation. 570 U.S. at 557.
We think that Section 241 must be read in light of the explicit
requirements of the Readmission Act that Mississippi may only
disenfranchise persons as punishment for conviction of a common law felony.
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.
3. Section 241 Violates Society’s Evolving Standards of Decency
Having determined that Section 241 inflicts punishment, our next task
is to determine whether its permanent denial of the franchise for conviction
of an enumerated crime is “cruel and unusual” punishment under the Eighth
Amendment as applied to Plaintiffs and their class. That is, we must decide
whether this practice is in accord with “the evolving standards of decency
that mark the progress of a maturing society.” Graham, 560 U.S. at 58. In
undertaking this inquiry, we first consider whether “there is a national
consensus” against the challenged punishment. Id. at 61. The Supreme
Court has instructed that this determination “should be informed by
objective factors to the maximum possible extent.” Atkins v. Virginia, 536
U.S. 304, 312 (2002) (internal quotation marks omitted). The “clearest and
32
Case: 19-60662 Document: 00516846289 Page: 33 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
most reliable objective evidence of contemporary values is the legislation
enacted by the country’s legislatures.” Id. (internal quotation marks
omitted); see also Graham, 560 U.S. at 61 (“The Court first considers
objective indicia of society’s standards, as expressed in legislative
enactments and state practice, to determine whether there is a national
consensus against the . . . practice at issue.”) (internal quotation marks
omitted). These benchmarks, however, are not completely dispositive of the
matter. “[T]he Constitution contemplates that in the end our own judgment
will be brought to bear on the question of the acceptability of [Mississippi’s
voter disenfranchisement scheme] under the Eighth Amendment.” Coker v.
Georgia, 433 U.S. 584, 597 (1977); see also Graham, 560 U.S. at 61 (same).8
8
In Graham v. Florida, the Supreme Court explained that the two-step analysis
outlined above applies when a “case implicates a particular type of [punishment] as it
applies to an entire class of offenders who have committed a range of crimes.” 560 U.S. at
61. The Court uses this “categorical approach” in order to craft “categorical rules to define
Eighth Amendment standards.” Id. at 60, 62. By contrast, in cases where the Court
considers “a gross proportionality challenge to a particular defendant’s sentence,” its
analysis “begin[s] by comparing the gravity of the offense and the severity of the sentence.”
Id. at 60. In this case, it is not a particular defendant’s sentence but rather a punishment
“itself [that] is in question.” Id. at 61. In other words, this case involves a “particular type
of [punishment]”—permanent disenfranchisement—“as it applies to an entire class of
offenders who have committed a range of crimes”—felons convicted of Section 241
disenfranchising offenses who have completed all terms of their court-imposed sentences.
Id. Accordingly, and in light of the fact that no party suggests otherwise, we follow the
Court’s categorical approach to assessing this claim. Id.
The dissent argues that the categorical approach is inapplicable because the
Supreme Court has so far only applied that analysis to sentences of death and of life without
parole. That is true, but all it proves is that this case presents a res nova question. Having
concluded that Section 241 exacts a punishment, we must ascertain whether that
punishment exceeds the limits of the Eighth Amendment. As discussed above, the
Supreme Court has instructed that, when examining the constitutionality of a particular
practice of punishment applied to a range of offenses, rather than a specific defendant’s
sentence, courts should employ the categorical approach. Graham, 560 U.S. at 60–61. Such
is the inquiry here, and so we follow the Supreme Court’s instruction. The dissent offers
33
Case: 19-60662 Document: 00516846289 Page: 34 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
i. National Consensus Against Permanent Disenfranchisement as a
Punishment for Offenders Who Have Completed Their Sentences
To assess whether there is a “national consensus” against the
challenged punishment, we consider “objective indicia of society’s
standards” as embodied in legislation, including not only the aggregate
number of jurisdictions rejecting the punishment but also any consistent
legislative trends in that direction. Graham, 560 U.S. at 62.
Turning first to legislation, an exhaustive review of state laws shows
that the overwhelming majority of states oppose the punishment of
permanently disenfranchising felons who have completed all terms of their
sentences. Currently, thirty-five states and the District of Columbia do not
permanently disenfranchise felons. See Appendix infra. And four other states
only permit permanent disenfranchisement for corrupt practices in elections
or governance. Id. For example, Maryland permanently disenfranchises
felons convicted for buying or selling votes, while Missouri does so only as a
result of a conviction for an offense “connected with right of suffrage.” Md.
Code, Elec. Law § 3-102(b); Mo. Rev. Stat. § 115.133.2. Mississippi
is one of only eleven states that still permanently disenfranchises felons for
offenses other than those pertaining to elections. Put another way, thirty-nine
states plus the District of Columbia do not impose lifetime
disenfranchisement as a punishment for offenses unrelated to protecting the
honest administration of elections.
Significantly, the Supreme Court has found a national consensus
against a punishment when far fewer states than here opposed it. For
no alternative other than to forgo the Eighth Amendment analysis completely. That we
cannot do. “The Judiciary has the duty of implementing the constitutional safeguards that
protect individual rights.” Trop v. Dulles, 356 U.S. 86, 103 (1958).
34
Case: 19-60662 Document: 00516846289 Page: 35 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
example, in Atkins v. Virginia, the Court determined that a “national
consensus ha[d] developed against” executing the “mentally retarded”9
when thirty states had legislatively proscribed the practice. 536 U.S. at 321,
326 (holding that executing members of this class of offenders is cruel and
unusual). And the same number of states, thirty, had opposed the death
penalty for juvenile offenders—either by “express provision [in legislation]
or judicial interpretation”—when the Court held that practice to be cruel and
unusual. See Roper v. Virginia, 543 U.S. 551, 564 (2005). Indeed, that only
eleven states authorize the punishment challenged here closely resembles the
statistics considered in Enmund v. Florida, in which the Court emphasized
that the fact that only eight jurisdictions authorized the death penalty for
participation in a robbery during which an accomplice commits murder
“weigh[ed] on the side of rejecting capital punishment” for that offense. 458
U.S. 782, 793 (1982); see also Kennedy v. Louisiana, 554 U.S. 407, 426 as
modified (Oct. 1, 2008) (holding that capital punishment for the crime of child
rape violates the Eighth Amendment and observing that, “[t]hough our
review of national consensus is not confined to tallying the number of States
with applicable death penalty legislation, it is of significance that, in 45
jurisdictions, petitioner could not be executed for child rape of any kind”).
A national consensus that a punishment is cruel and unusual may be
further evidenced by a clear and consistent trend in state legislatures to
abandon the punishment, particularly in response to a court decision
upholding the punishment’s validity. Roper, 543 U.S. 566–67 (explaining
that, besides the sheer number of states rejecting a practice, the “consistency
of the direction of change” is a significant factor in determining whether
9
The contemporary preferred terminology for such persons is people with
intellectual or cognitive disabilities. See Hall v. Florida, 572 U.S. 701, 704 (2014).
35
Case: 19-60662 Document: 00516846289 Page: 36 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
there is a national consensus against a practice). In Penry v. Lynaugh, for
example, the Court held that the execution of the “mentally retarded” did
not violate the Eighth Amendment. 492 U.S. 302, 334 (1989). The Court
reasoned that the laws of sixteen states and the federal government10
precluding the execution of this vulnerable class of persons were insufficient
to show a national consensus against this practice. Id. at 334. Thirteen years
after Penry, the Court revisited that decision in Atkins. Again, the Court
considered whether a national consensus existed against capital punishment
for the “mentally retarded,” this time focusing primarily on the development
of any consistent trends since Penry opposing this practice. What “was
significant,” the Court explained, was “not so much the [total] number of
these States” that had acted since Penry to ban executing members of this
class of offenders—sixteen had done so—“but the consistency of the
direction of change.” Atkins, 536 U.S. at 315. As the Court succinctly put it,
“[m]uch ha[d] changed since” Penry, and, indeed, “a national consensus
ha[d] developed” against the challenged practice in response to the earlier
decision. Id. at 314, 316.
Similarly, in Roper, which struck down the juvenile death penalty, the
Court stressed the consistency of the direction of change in rejecting that
practice. 543 U.S. at 568. Though only five states had abandoned juvenile
executions in the fifteen years since the Supreme Court upheld the
punishment in Stanford v. Kentucky, 492 U.S. 361, 370–71 (1989), the Roper
Court followed Atkins’s admonition that what matters under the Eighth
Amendment is “not so much” the absolute number of states that have
abandoned a particular practice or the pace of that abandonment, but instead
10
Only two states and the federal government specifically prohibited executing the
cognitively disabled, while fourteen other states prohibited the death penalty categorically.
Penry, 492 U.S. at 334.
36
Case: 19-60662 Document: 00516846289 Page: 37 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
the “consistency of the direction of change.” Id. at 566. Thus, the shift in
state laws between Stanford and Roper, though smaller in number, was
nonetheless “significant” because, as in Atkins, “the same consistency of
direction of change ha[d] been demonstrated.” Id. at 565, 566.
With regard to lifetime felon disenfranchisement, at the time the
Supreme Court decided Richardson in 1974, twenty-seven states permitted
the practice as applied to felons whose offenses were unrelated to elections
or good governance and who had completed all terms of their sentences. See
Appendix. Currently, only eleven do. Since Richardson, sixteen states have
stopped the practice of imposing lifetime disenfranchisement on felons who
have served their sentences for offenses unrelated to elections or governance.
See Appendix. That is the exact number of states that changed their laws to
reject the execution of the “mentally retarded” between Penry and Atkins.
And it is more than threefold the total number of states that abolished the
juvenile death penalty in the timespan between Stanford and Roper. The
evidence clearly demonstrates “consistency [in] the direction of change,”
and a repudiation of permanent felon disenfranchisement. Roper, 543 U.S. at
566 (quoting Atkins, 536 U.S. at 315); see also Amicus Brief of the District of
Columbia, et al., Community Success Initiative v. Moore, No. 331PA21 at 4–9
(N.C. Aug. 17, 2022) (discussing the “clear and growing consensus among
states” against permanent disenfranchisement). That a trend in abandoning
a punishment has proven so durable and long-lasting demonstrates that
society has truly turned away from that punishment. In this way, the steady
rejection of permanent felon disenfranchisement over nearly half a century is
as much, or even more, consistent than the change in the punishment laws
considered in Atkins and Roper.
In sum, the objective barometers of society’s standards—namely, the
rejection of permanent felon disenfranchisement for offenses unrelated to
elections and good governance by a clear majority of states and the
37
Case: 19-60662 Document: 00516846289 Page: 38 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
consistency in the trend toward abolition of the practice—provide sufficient
evidence of a national consensus against punishing felons by permanently
barring them from the ballot box even when they have completed all terms of
their sentences.
The Secretary counters that there can be no national consensus
against permanent felon disenfranchisement because many states
disenfranchise felons for some period of time, such as during their period of
incarceration or until completion of parole or probation. It is true that almost
all states disqualify felons from voting at least while they are incarcerated or
under supervision, Maine and Vermont being the exceptions. The dissent
makes the same argument, asserting that there can be no national consensus
when the states disenfranchise felons in such diverse ways. But this case does
not concern the validity of temporary felon disenfranchisement laws, or the
disenfranchisement of the incarcerated, or any other particular mode of
disenfranchisement not contained in Section 241. In the present case, we are
concerned solely with Mississippi’s practice of punishing felons who have
completed all terms of their sentences by permanently disenfranchising them
for life. And objective evidence makes clear that a supermajority of states
reject this practice.
The Secretary also emphasizes that Section 241 only permanently
disenfranchises for the categories of felonies enumerated therein and that
therefore individuals who commit felonies not included under Section 241
are not disqualified from voting. But, having already determined that the state
permanently disenfranchises as punishment, see supra part III.D.2, the fact
that the state chooses not to exact this punishment against all felons is
immaterial to our current analysis of whether a national consensus against
this punishment exists. We need not, as the Secretary apparently invites us
to do, go felony-by-felony, asking whether there is a national consensus
against permanent disenfranchisement as a punishment for each specific
38
Case: 19-60662 Document: 00516846289 Page: 39 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
felony offense.11 Rather, the objective indicia of society’s standards
demonstrate that a consensus exists against meting out this sanction as a
punishment, and the Secretary’s arguments to the contrary are unavailing.
Based on the evidence before us, we conclude that our society has set its face
against permanent disenfranchisement as a punishment.
ii. Independent Judicial Determination that Section 241 is Cruel and
Unusual
We must next “determine, in the exercise of our own independent
judgment, whether [permanent disenfranchisement under Section 241] is a
disproportionate punishment for” those Mississippians who have completed
their sentences but remain permanently disenfranchised. Roper, 543 U.S. at
564. This assessment requires us to consider “the severity of the punishment
in question,” “the culpability of the offenders at issue in light of their crimes
and characteristics,” and “whether the challenged . . . practice serves
legitimate penological goals.” Graham, 560 U.S. at 67.
Before undertaking this inquiry, we emphasize that the issue here is
not, of course, whether the offenses listed in Section 241 warrant criminal
sanction. Rather, the question is whether punishing an individual who has
served the terms of his sentence by forever withholding from him the right to
11
If we were to accept the invitation to investigate Mississippi’s
disenfranchisement scheme felony-by-felony, it would not stand the state in good stead.
Section 241 lists a fraction of the hundreds of crimes on Mississippi’s books. That means
that Mississippi citizens who are convicted of non-Section 241 offenses are not
disenfranchised for life. Consequently, the Mississippi felons who remain permanently
disenfranchised after serving all of their sentences are subjected to an especially cruel and
unusual punishment as compared to Mississippi felons not convicted of Section 241 crimes
and felons in states that do not engage in permanent disenfranchisement. And the Secretary
has presented no evidence that any penological or other goals are furthered or justified by
permanently disenfranchising only the felons convicted of the crimes encompassed in
Section 241’s list.
39
Case: 19-60662 Document: 00516846289 Page: 40 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
vote constitutes cruel and unusual punishment under the Supreme Court’s
precedents and our own reasoning. And to determine whether this
punishment is proportional to Plaintiffs’ offenses, it is first necessary to
assess the importance of the right that Plaintiffs are denied. See Atkins, 563
U.S. at 311 (“It is a precept of justice that punishment for crime should be
graduated and proportioned to the offense.”) (cleaned up) (quoting Weems
v. United States, 217 U.S. 349, 367 (1910)).
In a democracy, the right to vote is a “fundamental political right”
because it is “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356,
370 (1886); see also Burson v. Freeman, 504 U.S. 191, 198 (1992) (plurality
opinion) (observing that the right to vote is “a right at the heart of our
democracy”). “No right is more precious in a free country” than the right to
vote. Reynolds v. Sims, 377 U.S. 533, 560 (1964). “Other rights, even the most
basic, are illusory if the right to vote is undermined.” Id. “A citizen without
a vote is to a large extent one without a voice in decisions which may
profoundly affect him and his family.” Rosario v. Rockefeller, 410 U.S. 752,
764 (1973) (Powell, J., dissenting).
The Supreme Court’s soaring language on the right to vote makes
clear two fundamental and interrelated points: (1) voting is the lifeblood of
our democracy and (2) the deprivation of the right to vote saps citizens of
their essential right to have a say in how and by whom they are governed.
Permanent denial of the franchise, then, is an exceptionally severe penalty,
constituting nothing short of the denial of the democratic core of American
citizenship. It is an especially cruel penalty as applied to those whom the
justice system has already deemed to have completed all terms of their
sentences. These individuals, despite having satisfied their debt to society,
are precluded from ever fully participating in civic life. Indeed, they are
excluded from the most essential feature and expression of citizenship in a
democracy—voting.
40
Case: 19-60662 Document: 00516846289 Page: 41 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Turning to the culpability of Plaintiffs’ class, we observe that Section
241’s punishment applies equally to all members of the class, regardless of
their underlying crime or the class member’s individual mental state during
the commission of the crime. Section 241 disenfranchises murderers and
timber thieves alike; it does not distinguish between mature adults and
juveniles, accomplices, or the intellectually disabled—the latter three being
classes of persons the Supreme Court has recognized as categorically less
culpable. Roper, 543 U.S. at 570; Enmund, 458 U.S. at 800–801; Atkins, 536
U.S. at 317–18. It is clear, then, that Section 241 does not reflect society’s
measured response to a felon’s moral guilt. Rather, as the provision’s odious
origins make clear, Section 241’s infliction of disenfranchisement on only
certain offenders has nothing to do with their heightened culpability.
Next, we consider whether the punishment of permanent
disenfranchisement advances any legitimate penological goals. Graham, 560
U.S. at 68. A punishment that “lack[s] any legitimate penological
justification is by its nature disproportionate to the offense.” Id. at 71. The
traditional justifications for punishment are incapacitation, rehabilitation,
deterrence, and retribution. Id. at 71–74.
Taking these in turn, incapacitation cannot support Section 241’s
punishment because it does not incapacitate a convict from committing
crimes; it only prevents him from voting. While felon disenfranchisement
could potentially prevent recidivism if it were applied specifically to those
convicted of voting-related offenses, Section 241, as discussed, applies to
broad categories that are unrelated to elections crimes. And as to these
categories of crimes, Section 241 does nothing to thwart a former felon from
reoffending. Rather, the only conduct it incapacitates is voting. Further,
there is evidence that disenfranchisement may actually increase recidivism.
One comparative study found that “individuals who are released in states
that permanently disenfranchise are roughly nineteen percent more likely to
41
Case: 19-60662 Document: 00516846289 Page: 42 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
be rearrested than those released in states that restore the franchise post-
release.” Guy Padraic Hamilton-Smith & Matt Vogel, The Violence of
Voicelessness: The Impact of Felony Disenfranchisement on Recidivism, 22
Berkeley La Raza L.J. 407, 426 (2012).
Section 241 does not further the goal of rehabilitation. Lifetime
disenfranchisement does not contribute to reforming an offender. Quite to
the contrary, it hinders reintegration into society by denying voting, a
cherished marker and right of citizenship. See Reynolds, 377 U.S. at 560. The
Secretary has not argued otherwise, claiming that felon disenfranchisement’s
precise purpose is to exclude a former felon from participation in this aspect
of our society. There is “no more certain way in which to make a man in
whom, perhaps, rest the seeds of serious antisocial behavior more likely to
pursue further a career of unlawful activity than to place on him the stigma
of the derelict, uncertain of many of his basic rights.” Trop v. Dulles, 356 U.S.
86, 111 (1958) (Brennan, J. concurring). This exclusion is not rehabilitative.
If anything, it can only reinforce the stigma that the disenfranchised are
“beyond redemption.” Pamela S. Karlan, Convictions and Doubts:
Retribution, Representation, and the Debate over Felon Disenfranchisement, 56
Stan. L. Rev. 1147, 1166 (2004); see also Alec C. Ewald, “Civil Death”:
The Ideological Paradox of Criminal Disenfranchisement Law in the United
States, 2002 Wis. L. Rev. 1045, 1112–16 (2002) (discussing the republican
case against disenfranchisement as anti-rehabilitative).
For its part, deterrence only works if an individual is aware that a
particular punishment attends a particular offense. It is questionable—and
we have been presented with no evidence to suggest otherwise—to what
extent Mississippians, and specifically those who would consider committing
a crime covered by Section 241, are aware they could permanently lose the
right to vote by virtue of a conviction. Moreover, it is unclear—and again we
have been presented with no evidence that makes it clear—what marginal
42
Case: 19-60662 Document: 00516846289 Page: 43 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
deterrent effect the prospect of losing the franchise has when a person
committing a felony already faces the more immediate sanction of criminal
confinement. Similarly, there is no reason to believe that the punishment of
disenfranchisement will deter recidivism because the felon who has lost the
franchise under Section 241 has lost it forever, regardless of his future
conduct.
That leaves retribution. While this is a “legitimate reason to punish,”
Graham, 560 U.S. at 71, “the severity of the appropriate punishment
necessarily depends on the culpability of the offender[.]” Atkins, 536 U.S. at
319. We have explained that the continuing—indeed, unending—
punishment Section 241 inflicts is wholly unrelated to the moral culpability
of the diverse class of felons it applies to. Moreover, because the sentences
imposed on Plaintiffs are necessarily ones that are capable of being
completed, the criminal justice system has implicitly determined that
Plaintiffs who served their sentences are capable of being returned to a
position within society. And the fact that Plaintiffs have actually completed
all terms of their sentences means that they merit being restored to their basic
rights as citizens. To permanently remove from them the most precious right
of citizenship is thus disproportionate to their offenses and cannot stand as a
permissible exercise of retribution. See Roper, 543 U.S. at 564; Reynolds, 377
U.S. at 561.
For those adjudicated to have committed a crime enumerated in
Section 241 and whose judicially imposed sentence has been completed, the
provision tacks on an exceptionally severe penalty—one that is
unconstitutional as to all it ensnares. Our nation has a tradition of fixing
punishment to meet the crime. After a sentence is complete, the individual is
said to have paid his debt to society. While some disabilities may attach to a
felony conviction that persist beyond the criminal sentence, in a democracy,
to deny the right to vote is to render one without a say in the manifold ways
43
Case: 19-60662 Document: 00516846289 Page: 44 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
the government touches his life. That Mississippi denies this most precious
right permanently, despite the felon’s sentence having been served, is
disproportionate and inconsistent with the consensus against permanent
disenfranchisement among state legislatures. The punishment of permanent
disenfranchisement also contravenes the Eighth Amendment’s
proportionality principle because it lacks a nexus with any legitimate
penological justification. See Miller, 567 U.S. 460, 489 (2012); Graham, 560
U.S. at 71. Thus, insofar as it applies to those who have fulfilled all terms of
their sentences, Section 241 is proscribed by the Eighth Amendment’s
advancing standards of decency under the Constitution.
VII. Conclusion
“No right is more precious in a free country” than the right to vote.
Wesberry v. Sanders, 376 U.S. 1, 17 (1964). “Other rights, even the most basic,
are illusory if the right to vote is undermined.” Id. This right is not only
fundamental to the democratic ordering of our society, it is also expressive of
the dignity of American citizenship—that each person is an equal participant
in charting our nation’s course. Reynolds, 377 U.S. at 533; Bush v. Gore, 531
U.S. 98, 104 (2000) (“[O]ne source of [the right to vote’s] fundamental
nature lies in the equal weight accorded to each vote and the equal dignity
owed to each voter.”).
Mississippi denies this precious right to a large class of its citizens,
automatically, mechanically, and with no thought given to whether it is
proportionate as punishment for an amorphous and partial list of crimes. In
so excluding former offenders from a basic aspect of democratic life, often
long after their sentences have been served, Mississippi inflicts a
disproportionate punishment that has been rejected by a majority of the
states and, in the independent judgment of this court informed by our
precedents, is at odds with society’s evolving standards of decency. Section
44
Case: 19-60662 Document: 00516846289 Page: 45 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
241 therefore exacts a cruel and unusual punishment on Plaintiffs.
Accordingly, we REVERSE the district court’s grant of summary judgment
to the Secretary on Plaintiffs’ Eighth Amendment claim and RENDER
judgment for Plaintiffs on that claim. The case is REMANDED with
instructions that the district court grant relief declaring Section 241
unconstitutional and enjoining the Secretary from enforcing Section 241
against the Plaintiffs and the members of the class they represent.
APPENDIX
States with permanent criminal disenfranchisement penalties
1974 2000 2020
Alabama Alabama Alabama
Alaska Arizona Arizona
Arizona California Delaware
Arkansas Delaware Florida
California Florida Iowa
Connecticut Iowa Kentucky
Florida* Kentucky Maryland*
Georgia Maryland Massachusetts*
Idaho Massachusetts* Mississippi
Iowa Mississippi Missouri*
Kentucky Missouri Nebraska
Louisiana Nebraska New Jersey*
Maryland* New Hampshire Tennessee
Massachusetts* New Jersey* Virginia
Mississippi New Mexico Wyoming
45
Case: 19-60662 Document: 00516846289 Page: 46 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Missouri New York
Nebraska Ohio*
Nevada Tennessee
New Hampshire Virginia
New Jersey* Washington
New Mexico Wyoming
New York
North Dakota
Oklahoma
Rhode Island
South Carolina
Tennessee
Texas
Utah*
Virginia
Washington
Wyoming
* Permanent disenfranchisement for election-related offenses only.
States with permanent disenfranchisement penalties (with citations)
1974 2000 2020
State Citation State Citation State Citation
Alabama Ala. Const. Alabama Ala. Const. Alabama Ala. Const.
art. VIII, § art. VIII sec. art. VIII §
182; Ala. 177 (see also 177; Ala.
Code tit. 17 § Amendment Code. § 15-
15 (1958) 579 (1996)); 22-36.1.
Ala. Code.
46
Case: 19-60662 Document: 00516846289 Page: 47 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
17-3-10
(2000)
Alaska Ak. Const. Arizona Ariz. Const. Arizona Ariz. Rev.
art. V § 2; art. 7 sec. 2; Stat. § 13-
Ak. Code § Ariz. Stat. 908(A);
15.05.030 13-905, 13- Ariz. Rev.
(1960) 909-12 Stat. 13-
(2000) 907(A)
Arizona Ariz. Const. California Cal. Const. Delaware Del. Const.
art. 7 § 2; art. 2 sec. 4; art. 5 sec. 2
Ariz. Rev. Cal. Penal
Stat. § 16- Code
101(5) 4852.01,
4852.17,
4853 (2000)
Arkansas Ark. Const. Delaware Del. Const. Florida Fla. Const.
art. 3 § 6 art. 5 sec. 2, art. VI, § 4;
(1947) 7; 15 Del. Fla. Stat. §
Code sec. 944.292(1);
1701, 5104 Fla. Const.
(2000) art. IV, § 8
(a), (c)
California Cal. Const. Florida Fla. Stat. Iowa Iowa Const.
art. 2 § 3 97.041, art. 2 sec. 5
(1972); Elec. 944.292,
Code §§ 310, 944.293;
321, 383, Fla. Const.
389, 390; art. 6 sec. 4
Ramirez v. (2000)
Brown, 507
P.2d 1345,
1347 (Cal.
1973)
Connecti- Conn. Rev. Iowa Iowa Const. Kentucky Ky. Const.
cut Stat. 9-46 art. 2 sec. 5; sec. 145
(1973) Iowa Code
sec. 48A.6
(2000)
47
Case: 19-60662 Document: 00516846289 Page: 48 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Florida* Fla. Const. Kentucky Ky. Const. Mary- Md. Elec.
art. VI §. 4 sec. 145; Ky. land* Code sec 3-
(1973); Fla. Stat. 102
Code 116.025
97.041(5) (2000)
Georgia Ga. Const. Maryland Md. Const. Massa- Ma. Const.
art. II § 2- art. 1 sec. 4; chusetts* art 3; Ma.
701 (1945) Md. Code Gen. L. 51
art. 33, sec. sec. 1
3-102
(2000)
Idaho Idaho Const. Massa- Ma. Const. Missis- Miss. Const.
art. 6 § 3 chusetts* art 3; Ma. sippi art. XII §
(1947); Gen. L. 51 241
Idaho Code sec. 1 (2000)
34-402
(1949)
Iowa Iowa Const. Missis- Miss. Const. Missouri* Mo. Rev.
art. 2 § 2 sippi sec. 241; Stat. §
Miss Code 115.133.2
23-5-35
(1972)
Kentucky Ky. Const. Missouri Mo. Stat. Nebraska Neb. Rev.
art. 145 115.113 Stat. § 29-
(1955) (2000) 112; § 32-
313
Louisiana La. Const. Nebraska Neb. Stat. New Jer- N.J. Stat.
art. 8 § 6 32-313 sey* 19:4-1
(1968) (2000);
Ways v.
Shively, 264
Neb. 250(2002)
Mary- Md. Const. New N.H. Const. Tennes- Tenn. Code
land* art. I § 2 Hamp- Pt. 1 art. 11 see Ann. § 40-
(1972); Md. (2000) 29-204
Code. Art.
shire
33 ¶ 3-4
(1974)
Massa- Mass. Gen. New Jer- N.J. Stat. Virginia Va. Const.
chusetts* Laws chp. 51 sey* 19:4-1 art. II, § 1;
§ 1 (1972) (2000) art. V, § 12.
48
Case: 19-60662 Document: 00516846289 Page: 49 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Missis- Miss. Const. New N.M. Stat. Wyoming W.S. Ann.
sippi § 241; Miss Mexico sec. 31-13-1 6-10-106;
Code 23-5-35 (2000) W.S. 7-13-
(1972) 105(a), (b);
Wyo. Const.
art. 4, § 5.
Missouri Mo. Rev. New York N.Y. Const.
Stat. art. 2 sec. 3;
111.021 N.Y. Code
(1969) 5-106
(2000)
Nebraska Neb. Const. Ohio* Ohio Stat.
art. VI § 2; 2961.01,
Neb. Rev. 3599.39
Stat. 29- (2000)
112, 29-113
(1974)
Nevada Nev. Const. Tennes- Tenn. Code
art. 2 § 1; see 40-29-105
Nev. Rev. (2000)
Stat.
213.090,
213.155
New N.H. Const. Virginia Va. Const.
Hamp- art. 11 art. 2 sec. 1;
(1970); Va. Code
shire N.H. Rev. 53.1-231.2
Stat. 607-A- (2000)
2 (1974)
New Jer- N.J. Rev. Washing- Wash.
sey* Stat. 19:4-1 ton Const. art. 6
(1971) sec. 3; RCW
9.94A.637
(2000);
Madison v.
State, 161
Wash. 2d 85(2007).
New N.M. Const. Wyoming Wyo. 6-10-
Mexico art. VII § 1 106; 7-13-
(1973) 105 (2000)
49
Case: 19-60662 Document: 00516846289 Page: 50 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
New York N.Y. Elec.
Law 152
(1964)
North Da- N.D. Const.
kota art. V § 127
(1960)
Oklahoma Okla. Const.
art. III § 1
(1974)
Rhode Is- R.I. Const.
land art. Am.
XXXVIII
(1973)
South S.C. Const.
Carolina art. 2 sec. 7;
S.C. Code
23-62 (1962,
1975 Supp)
Tennes- Tenn. Const.
see art. 4 sec. 2 ;
Tenn. Code
2-205
(1971);
Texas Tex. Const.
art. 16 sec.
2; Tex. Rev.
Stat. art.
5.01 (1967)
Utah* Utah Const.
art. IV sec. 8
(1971)
Virginia Va. Const.
art. II sec. 2;
Va. Code
24.1-42
(1973)
Washing- Wash.
ton Const. art. 6
sec. 3 (1974);
50
Case: 19-60662 Document: 00516846289 Page: 51 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Wyoming Wyo. Const.
art. 6 sec. 6
(1957); Wyo.
Stat. 6-4
(1957); Wyo.
Stat. 7-311
(1957)
* Permanent disenfranchisement for election-related offenses only.
51
Case: 19-60662 Document: 00516846289 Page: 52 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Edith H. Jones, Circuit Judge, dissenting:
The panel decision holds that Section 241 of the Mississippi Consti-
tution, recently upheld in this court against another challenge,1 now fails the
test of Eighth Amendment scrutiny, incorporated by the Fourteenth Amend-
ment Due Process Clause. Because the majority never fully quotes the rele-
vant provision, I begin with text, which states that a mentally competent in-
habitant of Mississippi:
who is a citizen of the United States of America, eighteen
(18) years old and upward, who has been a resident of this state
for one (1) year, and for one (1) year in the county in which he
offers to vote, and for six (6) months in the election precinct or
in the incorporated city or town in which he offers to vote, and
who is duly registered as provided in this article, and who has
never been convicted of murder, rape, bribery, theft, arson, ob-
taining money or goods under false pretense, perjury, forgery,
embezzlement or bigamy, is declared to be a qualified elector.
MISS. CONST. Art. 12, § 241.
Laws like this one have faced many unsuccessful constitutional chal-
lenges in the past. When the Supreme Court ruled that the Equal Protection
Clause does not bar states from permanently disenfranchising felons, it dis-
pensed some advice to the losing parties:
We would by no means discount these arguments if addressed
to the legislative forum which may properly weigh and balance
them. . . . But it is not for us to choose one set of values over
the other. If respondents are correct, and the view which they
advocate is indeed the more enlightened and sensible one, pre-
sumably the people . . . will ultimately come around to that
1
Harness v. Watson, 47 F.4th 296, 311 (5th Cir. 2022) (en banc), pet. for cert. filed
(Oct. 28, 2022) (No. 22-412).
52
Case: 19-60662 Document: 00516846289 Page: 53 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
view. And if they do not do so, their failure is some evidence,
at least, of the fact that there are two sides to the argument.
Richardson v. Ramirez, 418 U.S. 24, 55, 94 S. Ct. 2655, 2671 (1974). In other
words: go and convince the state legislatures. Do the hard work of persuading
your fellow citizens that the law should change.
Today, the court turns that advice on its head. No need to change the
law through a laborious political process. The court will do it for you, so long
as you rely on the Due Process Clause, rather than the Equal Protection Clause.
With respect, this is not a road that the Constitution—or precedent—allows
us to travel. I dissent.2
I.
Section One of the Fourteenth Amendment guarantees “due pro-
cess” and “equal protection of the laws.” U.S. CONST. amend. XIV § 1.
After a long process of exegesis, it is settled that the Due Process Clause in-
corporates much of the Bill of Rights, and state governments must respect
protections like the Eighth Amendment’s prohibition of cruel and unusual
punishment. See McDonald v. City of Chicago, 561 U.S. 742, 763, 130 S. Ct.
3020, 3034 (2010).
Section Two of the Fourteenth Amendment is less familiar but more
specific. It reduces the number of representatives in Congress to which a
state is entitled if that state disenfranchises any of its male, non-Indian citi-
zens over the age of 21. But there is a single exception: states may not be
penalized for disenfranchising a citizen “for participation in rebellion, or other
crime.” U.S. CONST. amend. XIV § 2 (emphasis added). The carve-out
2
To be precise, I do not quarrel with the holding that Plaintiffs have standing to
challenge Section 241 of the state constitution but not Section 253. And like the majority,
I need not separately address the plaintiffs’ First Amendment claim, which is inextricably
bound with my conclusions regarding the Eighth Amendment.
53
Case: 19-60662 Document: 00516846289 Page: 54 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
reflects a long tradition in this country, and before that, in British law, and
before that, in the Western world.3 This tradition can be summed up in
Lockean terms: if a person breaks the laws, he has forfeited the right to par-
ticipate in making them. See Green v. Bd. of Elections of N.Y.C., 380 F.2d 445,
451 (2d Cir. 1967) (Friendly, J.).
Despite Section Two’s explicit allowance of felon disenfranchise-
ment, plaintiffs alleged in Richardson that California’s felon disenfranchise-
ment law violated Section One’s Equal Protection Clause. The Supreme
Court rejected the argument as it held that the specific language in Section
Two casts light on the generalities of Section One. 418 U.S. at 43, 94 S. Ct.
at 2665 (finding persuasive the petitioner’s argument that “those who
framed and adopted the Fourteenth Amendment could not have intended to
prohibit outright in [Section One] of that Amendment that which was ex-
pressly exempted from the lesser sanction of reduced representation imposed
by [Section Two] of the Amendment.”).
The plaintiffs in today’s case differ from those in Richardson in only
one way: they allege that Mississippi’s felon disenfranchisement law violates
Section One’s Due Process Clause. Their reasoning, and the majority’s
holding, relies on three propositions. One is the undisputed rule that the Due
Process Clause incorporates the Eighth Amendment’s prohibition against
cruel and unusual punishments. But the other two propositions are false.
Contrary to the majority, Richardson’s ruling extends beyond the Equal Pro-
tection context, and felon disenfranchisement is not a cruel and unusual pun-
ishment. I address each faulty proposition in turn.
3
For a brief summary of that tradition, see George Brooks, Felon
Disenfranchisement: Law, History, Policy, and Politics, 32 FORDHAM URB. L.J. 851, 852-61
(2005).
54
Case: 19-60662 Document: 00516846289 Page: 55 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
II.
To begin with, Richardson v. Ramirez controls this case. Its holding
did not rest on which part of Section One was invoked by the plaintiffs, but
“on the demonstrably sound proposition that [Section One], in dealing with
voting rights as it does, could not have been meant to bar outright a form of
disenfranchisement which was expressly exempted from the less drastic
sanction of reduced representation which [Section Two] imposed for other
forms of disenfranchisement.” Id. at 55, 2671. This is far from the only lan-
guage in the opinion that has applicability beyond the Equal Protection
Clause. See Richardson, 418 U.S. at 43, 94 S. Ct. at 2665 (“[T]hose who
framed and adopted the Fourteenth Amendment could not have intended to
prohibit outright in [Section One] . . . that which was expressly exempted
from . . . [Section Two] of the Amendment.”); id. at 54, 2670 (relying on the
“settled historical and judicial understanding of the Fourteenth Amendment’s
effect on state laws disenfranchising convicted felons”) (emphasis added); id.
at 55, 2671 (urging would-be reformers to petition the state legislatures rather
than the courts); id. at 48, 2668 (focusing “on the understanding of those
who framed and ratified the Fourteenth Amendment” as a whole). On this
logic, it is irrelevant what clause of Section One is cited by plaintiffs. None
of its provisions can be understood to bar what Section Two plainly allows.
It changes nothing that plaintiffs rely on Eighth Amendment prece-
dent. That precedent is made applicable to Mississippi via the Due Process
Clause. Robinson v. California, 370 U.S. 660, 667, 82 S. Ct. 1417, 1421 (1962).
Therefore, the Eighth Amendment right asserted by plaintiffs cannot exceed
the scope of the Due Process Clause.
Even if the Eighth Amendment right were considered on its own
terms, Richardson’s reading of Section Two must still guide our interpreta-
tion of its scope. As interpreters of the Constitution, judges must seek “a fair
construction of the whole instrument.” McCulloch v. Maryland, 17 U.S. (4
55
Case: 19-60662 Document: 00516846289 Page: 56 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Wheat.) 316, 406 (1819). All of its provisions “should be interpreted in a way
that renders them compatible, not contradictory.” ANTONIN SCALIA &
BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS
180 (2012) (“READING LAW”). Yet the majority’s interpretation renders the
Section Two proviso meaningless. It is useless for the Fourteenth Amend-
ment to authorize felon disenfranchisement if the practice is made illegal by
the Eighth. The canon against surplusage warns us against such unnatural
readings. Id. at 174.
Thus, the Cruel and Unusual Punishments Clause should not be un-
derstood to prohibit what “the explicit language of the Constitution affirma-
tively acknowledges” elsewhere as legitimate. Furman v. Georgia, 408 U.S.
238, 380, 92 S. Ct. 2726, 2799 (1972) (Burger, C.J., dissenting); see also Gregg
v. Georgia, 428 U.S. 153, 177, 96 S. Ct. 2909, 2927 (1976) (approving capital
punishment under certain circumstances). Cf. Lassiter v. Northampton Cnty.
Bd. of Elections, 360 U.S. 45, 51, 79 S. Ct. 985, 990 (1959) (stating that a
“criminal record” is one of the “factors which a State may take into consid-
eration in determining the qualifications of voters.”); Romer v. Evans,
517 U.S. 620, 634, 116 S. Ct. 1620, 1628 (1996) (“that a convicted felon may
be denied the right to vote . . . is” an “unexceptionable” proposition). Fol-
lowing this rule, this court and others have concluded without reservation
that “a state has the power to disenfranchise persons convicted of a felony,”
even permanently. Shepherd v. Trevino, 575 F.2d 1110, 1112 (5th Cir. 1978).4
4
See also Jones v. Governor of Fla., 950 F.3d 795, 801 (11th Cir. 2020) (“Regardless
of the political trend toward re-enfranchisement, there is nothing unconstitutional about
disenfranchising felons—even all felons, even for life.” (citing Richardson, 418 U.S. at 56));
Hayden v. Pataki, 449 F.3d 305, 316 (2d Cir. 2006) (“The Supreme Court has ruled that,
as a result of th[e] language of [Section 2], felon disenfranchisement provisions are
presumptively constitutional.”).
56
Case: 19-60662 Document: 00516846289 Page: 57 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
It is true that “provisions that grant Congress or the States specific
power to legislate in certain areas . . . are always subject to the limitation that
they may not be exercised in a way that violates other specific provisions of
the Constitution.” Williams v. Rhodes, 393 U.S. 23, 29, 8 S. Ct. 5, 9 (1968).
For example, a state may not disenfranchise felons with racially discrimina-
tory intent. Hunter v. Underwood, 471 U.S. 222, 233, 105 S. Ct. 1916, 1922
(1985).5 Likewise, as the majority recognizes, the Thirteenth Amendment
bars involuntary servitude “except as a punishment for crime.” U.S. CONST.
amend. XIII. Nevertheless, certain involuntary work requirements imposed
on convicted criminals may violate the Cruel and Unusual Punishments
Clause. Williams v. Henagan, 595 F.3d 610, 622 n. 18 (5th Cir. 2010).
But that principle places a “limitation” on the “exercise” of a legiti-
mate power; it cannot void the power entirely. Williams, 393 U.S. at 29,
89 S. Ct. at 9. Today’s ruling goes far beyond Hunter’s holding that felon
disenfranchisement must be exercised in accord with the Constitution. The
majority concludes that the “punishment of permanent disenfranchise-
ment” is entirely unconstitutional. This unjustifiably creates an internal con-
flict in the Constitution by holding that the Eighth Amendment preempts
Section Two of the Fourteenth Amendment.
Moreover, even if this court found a conflict between the Eighth
Amendment and Section Two of the Fourteenth—which, to restate emphat-
ically, it should not have done—the established canons of interpretation dic-
tate that Section Two should be given effect. It is both more specific and later
in time than the Eighth Amendment. If “there is a conflict between a general
5
To clarify a point for confused readers: this is not an issue in today’s case. Sitting
en banc, this court has already held that the current version of Section 241 was not enacted
with discriminatory intent—a finding the majority neglects to mention in its long and
irrelevant discussion of Mississippi’s sordid constitutional history. See Harness, 47 F.4th
at 311.
57
Case: 19-60662 Document: 00516846289 Page: 58 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
provision and a specific provision, the specific provision prevails.” READING
LAW at 183. “While the implication of a later enactment will rarely be strong
enough to repeal a prior provision, it will often change the meaning that
would otherwise be given to an earlier provision that is ambiguous.” Id. at
330. And a “provision that flatly contradicts an earlier-enacted provision re-
peals it.” Id. at 327.
Careening past all these standard interpretive guardrails, the majority
circumvents Richardson, while purporting not to abrogate it, based on the
“evolving standards of decency.” Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct.
590, 598 (1958). I am unaware of any case, ever, in which a lower federal
court has declared a Supreme Court decision overtaken by subsequent
events—without being quickly overruled. At the time Richardson was issued,
no one would have construed the Eighth Amendment to prevent felon disen-
franchisement. Indeed, in Richardson, the Court cited “settled historical and
judicial understanding.” 418 U.S. at 54, 94 S. Ct. at 2670 The Court cited
three of its decisions stretching back to the end of the nineteenth century that
approvingly referenced felon disenfranchisement, and the Court twice af-
firmed three-judge court rulings in 1968 and 1973 that rejected challenges to
such laws. See id. at 53–54, 2670. It is not for this court to say this wealth of
authority has become outmoded. See Agostini v. Felton, 521 U.S. 203, 207,
117 S. Ct. 1997 (1997) (“The Court neither acknowledges nor holds that other
courts should ever conclude that its more recent cases have, by implication,
overruled an earlier precedent. Rather, lower courts should follow the case
which directly controls, leaving to this Court the prerogative of overruling its
own decisions.”).
III.
Even if Richardson had never been decided, the majority opinion
would still be inconsistent with precedent and the meaning of the Eighth
58
Case: 19-60662 Document: 00516846289 Page: 59 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Amendment. Felon disenfranchisement is neither cruel, nor unusual, nor a
punishment.
A.
First, the majority incorrectly concludes that Mississippi’s felon dis-
enfranchisement law is a “punishment” for Eighth Amendment purposes.
The majority correctly recites the two-part test for determining whether
something is a “punishment” under the meaning of the Constitution. See
Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1147 (2003). Courts initially
ascertain whether “the intention of the legislature was to impose punish-
ment.” Smith, 538 U.S. at 92, 123 S. Ct. at 1147. If so, “that ends the in-
quiry.” Id. “If, however, the intention was to enact a regulatory scheme that
is civil and nonpunitive, we must further examine whether the statutory
scheme is so punitive either in purpose or effect as to negate [the State’s]
intention to deem it ‘civil.’” Id. (quotation marks omitted).
The majority neglects, however, to mention that the Supreme Court
has already signaled that felon disenfranchisement is not a punishment. In
Trop v. Dulles, the plurality wrote the following:
A person who commits a bank robbery, for instance, loses his
right to liberty and often his right to vote. If, in the exercise of
the power to protect banks, both sanctions were imposed for
the purpose of punishing bank robbers, the statutes authorizing
both disabilities would be penal. But because the purpose of the
latter statute is to designate a reasonable ground of eligibility for
voting, this law is sustained as a nonpenal exercise of the power to
regulate the franchise.
356 U.S. at 96–97, 78 S. Ct. at 596 (emphasis added).6 On the strength of this
language, three other circuits have categorically held that felon
6
The Trop Court was ruling in the context of the Ex Post Facto Clause. But
because we assume the Constitution uses the word “punishment” consistently, the test for
59
Case: 19-60662 Document: 00516846289 Page: 60 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
disenfranchisement is nonpenal.7 Only the Eleventh Circuit has departed
from this categorical holding. Thompson v. Alabama, 65 F.4th 1288, 1304
(11th Cir. 2023) (charging the other circuits with “a misreading of Trop.”). I
am inclined to agree with the majority of circuits that Trop assumes disen-
franchisement cannot be punishment. But even the Eleventh Circuit’s rea-
soning cannot offer comfort to the majority. That court still concluded after
applying the relevant test that Alabama’s disenfranchisement law, which has
a history and structure very similar to that of Mississippi’s, was nonpenal. Id.
at 1308.
Considering the text and structure of Section 241 demonstrates that it
was not intended as a penal measure. The majority gives short shrift to these
considerations, which ought to have been its primary focus. Doe, 538 U.S. at
92, 123 S. Ct. at 1147. To reiterate its language, this constitutional provision
states that a mentally capable person:
who is a citizen of the United States of America, eighteen (18)
years old and upward, who has been a resident of this state for
one (1) year, and for one (1) year in the county in which he of-
fers to vote, and for six (6) months in the election precinct or
in the incorporated city or town in which he offers to vote, and
who is duly registered as provided in this article, and who has
identifying constitutional “punishments” is the same for the Ex Post Facto Clause, the
Eighth Amendment, and the Double Jeopardy Clause. Does 1-7 v. Abbott, 945 F.3d 307, 313
(5th Cir. 2019).
7
Simmons v. Galvin, 575 F.3d 24, 43 (1st Cir. 2009) (“The Supreme Court has
stated that felon disenfranchisement provisions are considered regulatory rather than
punitive.”); Johnson v. Bredesen, 624 F.3d 742, 753 (6th Cir. 2010) (“Moreover, in Trop v.
Dulles, the Supreme Court expressly stated that felon disenfranchisement laws serve a
regulatory, non-penal purpose. Accordingly, as a matter of federal law, disenfranchisement
statutes do not violate the Ex Post Facto Clause of the U.S. Constitution.”); Green, 380
F.2d at 450 (“Depriving convicted felons of the franchise is not a punishment but rather is
a ‘nonpenal exercise of the power to regulate the franchise.’” (quoting Trop, 356 U.S. at
97, 78 S. Ct. at 596)).
60
Case: 19-60662 Document: 00516846289 Page: 61 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
never been convicted of murder, rape, bribery, theft, arson, ob-
taining money or goods under false pretense, perjury, forgery,
embezzlement or bigamy, is declared to be a qualified elector.
MISS. CONST. Art. 12, § 241. This provision does not so much as hint at a
punitive intent toward felons any more than it implies an intent to punish
non-citizens, short-term residents of Mississippi, those unregistered to vote,
or those under the age of eighteen. It does not even single out felons for dis-
qualification from the franchise—it merely defines the franchise in such a
way as to exclude them from its bounds.8 Moreover, Section 241 is part of
the Mississippi Constitution’s Article 12, which outlines the procedures for
elections, not the punishment of criminals. By its own terms, Section 241 is
a nonpenal exercise of Mississippi’s regulatory authority over the franchise.
The majority opinion attempts to shift focus by pointing to language
from the Readmission Act. That act barred Mississippi from depriving “any
citizen or class of citizens” of the right to vote “except as a punishment.”
Act of February 23, 1870, ch. 19, 16 STAT. 67. The majority opinion worries
that, if this court does not classify disenfranchisement as punishment, it
would call into question whether Mississippi was properly readmitted to the
Union, because Mississippi would therefore be depriving a class of citizens
of the right to vote for a reason other than punishment. Hence, the majority
concludes, any felon disenfranchisement that occurs in Mississippi is per se
punitive for Eighth Amendment purposes.
8
Compare Mississippi’s Section 241 with a portion of the Alabama Constitution
recently upheld as a nonpenal regulation of the franchise: “No person convicted of a felony
involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until
restoration of civil and political rights or removal of disability.” ALA. CONST. Art. VIII,
§ 177. The Eleventh Circuit found this text sufficient to indicate “a preference that
[Alabama’s] felon disenfranchisement provision be considered civil instead of criminal.”
Thompson, 65 F.4th at 1305.
61
Case: 19-60662 Document: 00516846289 Page: 62 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
But the Readmission Act is not a license to find that the intent of Sec-
tion 241 was per se penal. Indeed, the Eleventh Circuit was briefed on the
substantially identical text of Alabama’s Readmission Act, yet nevertheless
held that the Alabama Constitution’s disenfranchisement provision was non-
penal. Thompson, 65 F.4th at 1305. Simply put, the question whether Mis-
sissippi violated the Readmission Act is separate from the issue before us and
involves a completely different set of interpretive questions. We are not
obliged to interpret the word “punishment” to mean the same thing in the
Eighth Amendment as in the Readmission Act—unlike our obligation to use
the same definition for the Ex Post Facto Clause and the Eighth Amendment.
It could well be that “punishment” in the Act merely means “consequence
of a crime,” rather than “punitive.” But the proper interpretation of the
Readmission Act is not before us. All this court may do is apply the definition
of “punishment” used for Eighth Amendment purposes to the law at hand.
When the provision’s text and structure are considered, and prece-
dent is consulted, it becomes obvious that Section 241 is not intended as a
punishment. The majority disregards these sources, choosing instead to rely
on the text of the Readmission Act—which ironically was meant to recognize
the very authority this court now repudiates. Punitive intent cannot be found
on these facts.9
B.
The majority seemingly establishes a categorical rule that permanent
felon disenfranchisement is cruel and unusual punishment. True, there is a
passing mention that Mississippi’s law is unconstitutional “as applied to
9
The majority forbears analysis of the second prong of the test—whether the
provision is so punitive as to negate the state’s intention. I need not address that prong
either. But I found no compelling arguments from the plaintiffs as to why Section 241 ought
to be considered “punishment.”
62
Case: 19-60662 Document: 00516846289 Page: 63 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
Plaintiffs and their class.” But the majority opinion immediately proceeds to
apply the test used to determine whether a punishment is categorically cruel
and unusual. See United States v. Farrar, 876 F.3d 702, 717 (5th Cir. 2017).
And its language and reasoning are hardly constrained to the facts of the case.
If courts were allowed to interpret “cruel and unusual” in line with
the original meaning of those terms, there is no question that felon disenfran-
chisement would be neither cruel nor unusual. But in Trop, the Supreme
Court held that the “Amendment must draw its meaning from the evolving
standards of decency that mark the progress of a maturing society.” 356 U.S.
at 101, 78 S. Ct. at 598. In cases involving categorical rules against a type of
punishment, this involves two steps. First, courts consider “objective indicia
of society’s standards, as expressed in legislative enactments and state prac-
tice, to determine whether there is a national consensus against the sentenc-
ing practice at issue.” Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011,
2022 (2010) (quotation marks omitted), as modified (July 6, 2010). Second,
courts “determine, in the exercise of our own independent judgment,
whether [the practice] is a disproportionate punishment.” Roper v. Simmons,
543 U.S. 551, 564, 125 S. Ct. 1183, 1192 (2005). This assessment includes
consideration of “the severity of the punishment in question,” “the culpa-
bility of the offenders at issue in light of their crimes and characteristics,”
and “whether the challenged . . . practice serves legitimate penological
goals.” Graham, 560 U.S. at 67.
In applying this line of cases, the majority stretches precedent beyond
the breaking point. As this court has recognized, categorical analysis has only
been used to declare a narrow and well-defined range of punishments cruel
and unusual. “The [Supreme] Court has undertaken categorical analysis
only for death-penalty cases and those involving juvenile offenders sentenced
63
Case: 19-60662 Document: 00516846289 Page: 64 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
to life-without-parole.” Farrar, 876 F.3d at 717.10 The ability to vote, though
assuredly important, is in no way analogous to death or a minor’s life impris-
onment. In fact, courts have uniformly refused to extend the compass of
“cruel and unusual” punishments beyond the Supreme Court’s rulings. Id.(stating it “would be improper to undertake a categorical analysis” where the
court “never established a categorical rule prohibiting” a practice). Depri-
vation of the right to vote is not the kind of interest that this narrow category
of cases is meant to protect.
In addition, applying categorical analysis here leads to endless confu-
sions. The problems begin when the majority attempts to identify a “national
consensus” against permanent felon disenfranchisement using the “objec-
tive indicia” of state laws on the subject. Graham, 560 U.S. at 61, 130 S. Ct.
at 2022. And the unsuitability of categorical analysis becomes even clearer
once the majority proceeds to find Section 241 unconstitutional in its “inde-
pendent judgment.” Id.
Because no two states share the same voting laws, it is not hard to find
a “national consensus” against any one state’s practices. As the majority’s
appendix illustrates, a few states always or usually allow voting during incar-
ceration. Some states allow felons to vote after their release. Some allow
voting after they complete a prison term, probation, and parole. Some re-
quire felons to first pay all owed fines and restitution. Some have statutorily
defined waiting periods. And some, like Mississippi, permanently disenfran-
chise felons. Moreover, this list does not even begin to delve into the
10
See also United States v. Cobler, 748 F.3d 570, 580–81 (4th Cir. 2014) (“The
present case involves neither a sentence of death nor a sentence of life imprisonment
without parole for a juvenile offender, the only two contexts in which the Supreme Court
categorically has deemed sentences unconstitutionally disproportionate.”); United States
v. Walker, 506 F. App’x 482, 489 (6th Cir. 2012) (finding categorical analysis “does not
apply in cases where the defendant receives a sentence that is ‘less severe’ than a life
sentence.”).
64
Case: 19-60662 Document: 00516846289 Page: 65 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
intricacies of these laws, such as which felonies they cover and the proce-
dures for the restoration of voting rights. A reasonably clever lawyer could
find a dozen ways to divvy up states and find a national consensus against any
particular practice.
Even worse, the majority opinion fails to offer a defensible bright line.
If the importance of voting rights makes Section 241 cruel and unusual, then
why would any form of post-incarceration disenfranchisement be constitu-
tional? For that matter, why would disenfranchisement during incarceration
be constitutional? To point to the length of the disenfranchisement does not
resolve the matter, because in the vast majority of states, a felon can be incar-
cerated for life—and thereby forfeit, for life, his right to vote.
In an effort to avoid some of these problems, the majority does not
quite hold that Mississippi can never permanently disenfranchise a felon. So
long as a felon is serving time in prison, the court implies, it is permissible to
strip his right to vote. Accordingly, not only may the person be disenfran-
chised for life due to a life prison term, but the death sentence carries the
same result. The panel admits theirs is an “odd” result, in holding that dis-
enfranchisement violates the Eighth Amendment when neither life imprison-
ment nor capital punishment does so.
The better term, in my view, would be “incoherent.” According to
the majority’s reasoning, a state can sentence rapists to life in prison, mean-
ing they can never vote—but if they are spared and eventually released, they
must be allowed to vote. A state can execute murderers, but it may not keep
them from voting if they are released from prison. In other words, permanent
disenfranchisement is fine—so long as it is accompanied by a life sentence or
death. But how could adding these sanctions make the loss of voting rights
less cruel or unusual? The majority has no credible explanation why the
Eighth Amendment permits the harsher outcome yet prohibits the milder.
65
Case: 19-60662 Document: 00516846289 Page: 66 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
The argument that criminals who served their prison sentences have
paid their debt to society offers no analytical safe harbor. The consequences
of committing a felony rarely end at the prison walls. Many felons are subject
to considerable limits on their freedom to move about and work during pro-
bation. Sexual offenders are often required to register for the protection of
those around them. Cf. Smith v. Doe, 538 U.S. 84, 90, 123 S. Ct. 1140, 1145
(2003) (finding such requirements nonpenal). Those with a criminal history
are often obliged to report it to potential employers. They may be barred
from some occupations entirely, including some forms of public office. Fel-
ons may not legally possess firearms. Completing a prison sentence does not
entitle felons to all the rights they previously possessed.11
Because Section 241, rightly interpreted, does not impose a punish-
ment, and because applying categorical analysis in this case is unprecedented
and illogical, it is unnecessary to address the majority’s exercise of “inde-
pendent judgment” in detail. Instead, I will merely note that the majority’s
discussion of “severity” illustrates the flaws in its approach. As already dis-
cussed, categorical analysis is meant for punishments of the highest sever-
ity—execution or life imprisonment. Farrar, 876 F.3d at 717. Whatever its
merits, disenfranchisement of felons is not of the same degree. The majority
rightly extols the role of voting in a democratic society, but it cannot cite a
single case to accord with its conclusion that disenfranchisement rises to the
level of cruel and unusual punishment. The majority’s conclusion, in short,
11
Of course, the majority’s “paid their debt to society” reasoning would provide
fodder for a wealth of Eighth Amendment-based litigation challenging these additional
adverse consequences of felon status. That situation would turn the alleged constitutional
uniqueness of the plaintiff’s First Amendment right to vote into a general weapon against
state criminal justice policies. The prohibition on “cruel and unusual punishments” would
be effectively mutated into a “harmful and unfair” provision.
66
Case: 19-60662 Document: 00516846289 Page: 67 Date Filed: 08/04/2023
No. 19-60662
c/w No. 19-60678
is the product of judicial willfulness, not judgment. Cf. THE FEDERALIST
NO. 78, at 405 (Alexander Hamilton) (George W. Carey & James McClellan,
Eds., 2001). And the majority essentially gives away the game when it ques-
tions the “marginal deterrent effect the prospect of losing the franchise has
when a person committing a felony already faces the more immediate sanc-
tion of criminal confinement.”12 The other factors—the culpability of the
plaintiffs and the penological goals of the law—are equally inapplicable where
the law at issue does not impose a punishment at all.
IV.
Today’s ruling disregards text, precedent, and common sense to se-
cure its preferred outcome. This end-justifies-means analysis has no place in
constitutional law. I respectfully dissent.
12
The majority also turns the plaintiffs’ burden of proof upside-down by charging
the defendants with failing to present evidence of a deterrent effect on felons.
67