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Felony Voting Disenfranchisement: Debriefing the 5th Circuit Court of Appeals August Ruling

This summer in a 2-1 decision, the 5th U.S. Circuit Court of Appeals declared a portion of the Mississippi constitution imposing lifetime voting bans on certain felons to be cruel and unusual punishment. This declaration has overturned the long-standing, anti-democratic tradition of the ex-confederate state to disenfranchise former felons. Apart from this decision being a revolutionary step towards ridding the country of its Confederate roots, the court’s ruling puts pressure on the other 10 states in the USA that levy lifelong voting bans for offences that do not pertain to elections. Earlier this summer, the Supreme Court had declined to hear an appeal against Mississippi’s voter laws on the basis of anti discrimination laws. However, this case to the 5th Circuit instead relied on the Supreme Court’s eighth amendment definition of cruel and unusual punishment.


Given this ruling, ​​​​it seems an appropriate time to explore the history of the disenfranchisement policies in ex-confederate states like Mississippi. The constitution purported that people convicted of one of 23 felonies in the state–some as obscure as timber larceny or as innocuous as writing a bad check for 100 USD–would be banned from voting for life. Over 8% of felons in Mississippi were unable to vote for the foreseeable future. Though there were measures put in place to revisit the ruling, they were unrealistic and unattainable in the eyes of an ordinary citizen, requiring either a gubernatorial pardon or a two-thirds vote of both the state senate and house. In their decision, the appeals court reasoned that there was a “national consensus,” considering that of the 27 states that had lifetime voting bans 50 years ago, only 16 remain.


Kentucky was the first U.S. state to engage in criminal disenfranchisement in 1792, where they established in section 145 of their constitution that “Persons convicted in any court of competent jurisdiction of treason, or felony, or bribery in an election, or of such high misdemeanour as the General Assembly may declare shall operate as an exclusion from the right of suffrage.” Then, through the 1800s, 25 additional states, including Mississippi in 1817, wrote similar voter disenfranchising prerogatives in their constitutions. It is important to note that during the late 1800s the U.S. was in a civil war that centred largely around the rights of African American slaves particularly in southern territories. Since there were already voter suppression laws in effect that targeted felons, and black Americans were disproportionately convicted of crimes, white supremists were faced with a perfect storm, and took advantage of it. In 1910, Alabama’s constitution convention, which was comprised of entirely white citizens, “reconfigured preexisting laws to handicap newly enfranchised black citizens.” These aggressive and racist laws have persisted. Now, over a century later, judicial branches are beginning to rewrite these racist and anti-human policies.


There is also something to be said about the development of a rehabilitative justice system in America. In a 2013 study of Texas voters, when asked if they would prefer to see “first-time nonviolent offenders” in prison or “probation and treatment programs,” 77% of those surveyed selected the treatment programs. This embrace of rehabilitative practices over strictly punitive ones demonstrates that Americans, even those in southern, conservative strongholds, believe in a criminal's ability to change. Though these individuals surveyed may have different opinions if asked how they would like to see a felon disciplined by the law, the faith they have in a prisoner to be rehabilitated into society is inherently tied with a belief that ex-convicts should be reintegrated into society.


Though this ruling is an exciting and promising step forward for American democracy and serves as an encouraging revelation about American opinions, there is still much to be done. Of the 10 states that maintain lifetime voting bans for felons, three have recently taken measures to make regaining voter status more difficult for felons: Florida, Tennessee and Virginia. Governor Ron DeSantis of Florida signed a senate bill declaring that all citizens returning from a felony conviction must pay off all legal financial obligations before being granted their eligibility to vote. In a state where 83% of these obligations go uncollected due to inability to pay, this essentially bars felons from another potential avenue to regain their voting rights. If the Governor’s presidential platform serves as a jarring premonition for what is to come in Florida’s future with regards to voting rights, he lays a frightening foundation down for the world to see.


While at a glance, this Mississippi ruling appears to be a major breakthrough in the fight against voter disenfranchisement, there will likely not be a domino effect of southern states following suit. Though it is certainly a big win to have voting rights restored to over 8% of felons in the state, this decision brings further awareness to the lengths conservative American states have to go in order to pursue fairer democratic practices in future elections.


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