A provision of the 1890 Mississippi Constitution designed to prevent Black people voting was not meant to be punitive, the office of Attorney General Lynn Fitch argued Tuesday before a full panel of the U.S. 5th Circuit Court of Appeals.
The full panel of the New Orleans-based appeals court is hearing the second case in less than three years claiming a provision of the Mississippi Constitution that permanently prohibits some people convicted of felonies from voting is in violation of the U.S. Constitution.
In August a three-judge panel of the 5th Circuit in a 2-1 decision found that the lifetime voting ban violates the Eighth Amendment of the U.S. Constitution because it is cruel and unusual.
But the full panel of the court, known for its conservative rulings, vacated the decision of the three-judge panel and ordered Tuesday’s hearing. It is not known when the full panel – about 20 judges — will rule on the issue. But it is likely that the full panel’s ruling will be appealed to the U.S. Supreme Court.
Judge James Graves, who was the third Black member of the Mississippi Supreme Court in modern times before being appointed to the 5th Circuit, asked how the 1890 provision that inserted the lifetime ban in an effort to disenfranchise African Americans could not be considered punitive.
Scott Stewart of the state Attorney General’s office, responded that the lifetime ban was simply one of the regulations, such as a residency requirement, placed on voting. But the state had previously conceded that the original intent of the lifetime ban was to prohibit Black Mississippians from voting.
The framers at the time admitted they placed the lifetime ban in the Mississippi Constitution as a tool to keep Black people from voting. The framers said they believed Black Mississippians were more likely to commit some crimes. Those crimes placed in the state Constitution where conviction costs a person the right to vote are bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, bigamy and burglary. The list has since been modified to adhere to changes in how crimes are identified in state law.
But under the original language of the Mississippi Constitution, a person could be convicted of cattle rustling and lose the right to vote, but those convicted of murder or rape would still be able to vote — even while incarcerated. Those convicted of murder and rape are now also prohibited from voting.
“Permanent disenfranchisement is not punitive and does not fall under the Eighth Amendment at all,” Stewart told the judges.
The lawsuit was filed by the Southern Poverty Law Center, Simpson Thacher & Bartlett LLP and others on behalf of Mississippians who have lost their voting rights.
Jonathan Youngblood argued before the Court on Tuesday that Mississippi is among a handful of states that permanently banned people from voting. At one point in the 1960s more than 40 states imposed a lifetime ban, but now only a few do as policymakers recognize the punitive nature of preventing people from voting.
Youngblood conceded that a voting ban could be imposed for certain crimes, such as for murder or rape,
He pointed to the random nature of the Mississippi provision that imposed a lifetime voting ban on someone convicted of timber theft, but not for someone convicted of some assault charges on police officers.
Youngblood said voting “was the center of what we are … I think what other states do is relevant. It (voting) is the fabric of our American society.”
Some of the judges told Youngblood that lawmakers, not the courts, should be deciding what crimes merit a lifetime ban on voting.
In 2020 the full 5th Circuit heard oral argument and later ruled against an effort to say the voting ban was unconstitutional because of its racist beginnings. The 5th Circuit ruled that while the ban was imposed for racist reasons that it was no longer is racist because it had been revisited by legislators and amended since it originally was imposed in 1890.
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