Court says Jim Crow-era felony voting ban in Mississippi can be altered by lawmakers, not judges

JACKSON, Miss. (AP) — Mississippi legislators, not the courts, must decide whether to change the state’s practice of stripping voting rights from people convicted of certain felonies, including nonviolent crimes such as forgery and timber theft, a federal appeals court ruled Thursday.

The state’s original list of disenfranchising crimes springs from the Jim Crow era, and attorneys who sued to challenge the list say authors of the Mississippi Constitution removed voting rights for crimes they thought Black people were more likely to commit.

A majority of judges on the 5th Circuit Court of Appeals wrote that the Supreme Court in 1974 reaffirmed constitutional law allowing states to disenfranchise felons.

“Do the hard work of persuading your fellow citizens that the law should change,” the majority wrote.

Nineteen judges of the appeals court heard arguments in January, months after vacating a ruling issued last August by a three-judge panel of the same court. The panel had said Mississippi’s ban on voting after certain crimes violates the U.S. Constitution’s prohibition against cruel and unusual punishment.

In the ruling Thursday, dissenting judges wrote that the majority stretched the previous Supreme Court ruling “beyond all recognition.” The dissenting judges wrote that Mississippi’s practice of disenfranchising people who have completed their sentences is cruel and unusual.

Tens of thousands of Mississippi residents are disenfranchised under a part of the state constitution that says those convicted of 10 specific felonies, including bribery, theft, arson and bigamy, lose the right to vote. Under a previous state attorney general, who was a Democrat, the list was expanded to 22 crimes, including timber larceny — felling and stealing trees from someone else’s property — and carjacking.

About 38% of Mississippi residents are Black, according to the Census Bureau. Nearly 50,000 people were disenfranchised under Mississippi’s felony voting ban between 1994 and 2017, and about 59% of them were Black, according to an expert who analyzed data for plaintiffs in a lawsuit challenging the ban.

To have their voting rights restored, people convicted of any of the crimes must get a pardon from the governor, which rarely happens, or persuade lawmakers to pass individual bills just for them with two-thirds approval. Lawmakers in recent years have passed few of those bills. They passed 17 this year and none in 2023.

In March, a Mississippi Senate committee leader killed a proposal that would have allowed automatic restoration of voting rights five years after a person is convicted or released from prison for some nonviolent felonies. The bill passed the Republican-controlled House 99-9, but Senate Constitution Committee Chairwoman Angela Hill said she blocked it because “we already have some processes in place” to restore voting rights person by person.

In 1950, Mississippi dropped burglary from the list of disenfranchising crimes. Murder and rape were added in 1968. Two lawsuits in recent years have challenged Mississippi’s felony disenfranchisement.

Attorneys representing the state in one lawsuit argued that the changes in 1950 and 1968 “cured any discriminatory taint.” The 5th Circuit Court of Appeals court agreed in 2022, and the Supreme Court said in June 2023 that it would not reconsider the appeals court’s decision.

People who challenged Mississippi’s felony voting ban are “exploring next steps” after Thursday’s ruling, said Jon Youngwood, co-chairman of the litigation department at the Simpson Thacher & Bartlett law firm.

“We are heartened by the opinion of the six dissenting judges, which encapsulates the importance of this case,” Youngwood said in a statement. “As they write, voting is ‘the lifeblood of our democracy.’ Denying broad groups of our citizens, for life, the ability to have a role in determining who governs them diminishes our society and deprives individuals of the full rights of representative government.”

The 5th Circuit is one of the most conservative appeals courts. It is based in New Orleans and handles cases from Louisiana, Mississippi and Texas.

The 19 judges who heard the arguments in January include 17 on active, full-time status, and two on senior status with limited caseloads and responsibilities.

The majority opinion was written by Judge Edith Jones, who was nominated by Republican former President Ronald Reagan and is still on active status. The result was agreed to by the 11 other active judges appointed by GOP presidents. A nominee of Democratic President Joe Biden, Judge Irma Ramirez, voted with the majority to reject the earlier panel decision.

The dissent was written by Judge James Dennis, who was nominated by former President Bill Clinton and now is on senior status. He was joined by Senior Judge Carolyn Dineen King, nominated by former President Jimmy Carter, and five other Democratic nominees on active service with the court.

Dennis, King and Jones made up the three-member panel whose 2-1 decision was reversed.

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Kevin McGill reported from New Orleans.