NEW ORLEANS – Whether permanently stripping voting rights from some Mississippi felons amounts to unconstitutionally cruel and unusual punishment is being weighed by 19 federal appellate judges, some of whom said during a hearing Tuesday that it should be decided by lawmakers, not a court.
At issue before the 5th U.S. Circuit Court of Appeals in New Orleans was Mississippi's prohibition on voting for those convicted of any of a list of various felonies, including nonviolent ones such as forgery or timber theft. The outcome could affect voting rights for tens of thousands.
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Criminal justice advocates won a major victory in August when a three-judge panel of the appeals court ruled that the ban violates the Constitution's prohibition against cruel and unusual punishment. But the full 17-member circuit court vacated that ruling weeks later and scheduled Tuesday's hearing.
Judge Kyle Duncan was among 5th Circuit judges who suggested during questioning that the Legislature, not judges, should prescribe punishment for a crime. “There is no judicial calculus to tell the difference between a rapist, and an armed robber and a car thief — and a timber thief, for that matter," Duncan told attorney Jon Youngwood, who was arguing against disenfranchisement.
Judge Stephen Higginson appeared to be more sympathetic to Youngwood's argument, noting that Mississippi is unusual in permanently disenfranchising people for lesser felonies. And he pushed back against Mississippi attorney Scott Stewart's contention that the voting ban is not a criminal punishment, but a regulation regarding fitness to vote.
Permanently disenfranchising someone, Higginson said, "sounds punitive."
The court's 17 full-time active judges heard arguments, along with two senior-status, part-time judges who sat on the panel that ruled against the ban in August. They gave no indication when they would rule.
Under the Mississippi Constitution, people convicted of 10 specific felonies, including bribery, theft and arson, lose the right to vote. Under a previous state attorney general, the list was expanded to 22 crimes, including timber larceny — felling and stealing trees from someone else's property — and carjacking.
To have their voting rights restored, people convicted of any of the crimes must get a pardon from the governor or persuade lawmakers to pass individual bills just for them with two-thirds approval. Lawmakers in recent years have passed few of those bills, and they passed none in 2023.
“Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement,” Senior Judge James Dennis wrote in the August opinion, joined by Senior Judge Carolyn Dineen King. Both judges were nominated to the court by Democratic presidents — King by Jimmy Carter and Dennis by Bill Clinton.
Also on the panel was Judge Edith Jones, still on full-time status nearly 40 years after she was nominated by former President Ronald Reagan. In a dissent to the August ruling, Jones cited a previous Supreme Court ruling regarding felons' disenfranchisement, saying it is up to legislatures to decide such matters.
Tuesday's hearing will include Jones and 16 other full-time members of the court. King and Dennis will also take part because they were members of the original ruling panel. The 5th Circuit is one of the most conservative circuit appeals courts, with 12 of its full-time posts filled by nominees of Republican presidents. Duncan was nominated by former President Donald Trump, Higginson by former President Barack Obama.
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This story has been corrected to show that an attorney's last name is Youngwood, not Youngblood, and that another attorney's last name is Stewart, not Stern.