Sarah May
September 10, 2023

Federal appeals court says revocation of felons' voting rights is 'cruel and unusual' punishment

In a noteworthy turn of events, a federal appeals court last month struck down a Mississippi state constitutional provision that strips certain felons of their voting rights, seemingly running afoul of applicable Supreme Court precedent, as the Daily Wire reports.

According to the Fifth Circuit Court of Appeals, the ban at issue constitutes a violation of the U.S. Constitution's Eight Amendment prohibiting “cruel and unusual punishment.”

Mississippi ban struck down

Prior to the ruling, the Mississippi Constitution effected a permanent revocation of voting rights anytime an individual was convicted of certain types of felonies.

Among the offenses covered by the provision were arson, embezzlement, bigamy, bribery, murder, perjury, rape, theft, obtaining goods or money under false pretenses, and other crimes deemed by the state attorney general to qualify for the ban.

Explaining the court's rationale, Judge James Dennis said that for Mississippi to continue enforcing the provision at issue, officials would be “bucking a clear and consistent trend” among other jurisdictions that have abandoned the concept of permanent bans in recent years and would not be serving any important societal purpose.

“By severing former offenders from the body politic forever, [Mississippi] 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,” Dennis declared.

Dissent, explained

However, Judge Edith Jones of the appeals panel disagreed, arguing that the decision was contrary to the U.S. Constitution and was a prime example of improper activism from the bench.

Jones cited Section Two of the Fourteenth Amendment in support of the notion that states may revoke the right to vote for “participation in rebellion, or other crime.”

“The carve-out reflects a long tradition in this country, and before that, in British law, and before that, in the Western world,” she continued. “This tradition can be summed up in Lockean terms: if a person breaks a law, he has forfeited the right to participate in making them.”

Jones also referenced U.S. Supreme Court precedent stating that voting bans for felons were indeed constitutional, and she suggested that the matter was one not for the courts, but for the electorate, through their chosen representatives.

Rehearing sought

In light of the appeals court's decision, Mississippi Attorney General Lynn Fitch has sought a rehearing on the issue, this time before the full 5th Circuit Court of Appeals.

As ABC News explains, the court has one vacant seat at present, and if the panel is indeed willing to entertain the case anew, the matter will come before 16 currently “active” judges, 12 of whom were appointed by Republicans, though whether that tilt would prove determinative in the AG's quest for reversal, only time will tell.

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