The office of Attorney General Lynn Fitch is asking the full U.S. 5th Circuit Court of Appeals to overturn an earlier decision that Mississippi’s lifetime ban on voting for people convicted of felonies is unconstitutional.

In a surprise decision, a three-judge panel of the Court of Appeals ruled earlier this month that Mississippi provisions preventing some people convicted of felonies from voting is cruel and unusual punishment.

Now Fitch, through a motion filed by Justin Matheny, an attorney in her office, is appealing to the entire 5th Circuit, which could result in consideration by as many as 20 judges.

Matheny argues in the motion that the felony ban on voting incorporated in the Mississippi Constitution “is a nonpunitive voting regulation … Even if disenfranchisement were a punishment, it is not cruel and unusual.”

Fitch’s court filing points out that in past rulings the U.S. Supreme Court has affirmed the authority of states to permanently disenfranchise people convicted of felonies.

The ruling by the three-judge panel finding Mississippi’s felony voting ban unconstitutional was a 2-1 decision. While there is court precedent allowing lifetime voting bans, the majority opinion of the three-judge panel said the nation is evolving on the issue just as it did on allowing minors to be executed, which is now prohibited.

The majority said Mississippi is among about 10 states still imposing a lifetime ban.

The majority said, “By severing former offenders from the body politic forever, Section 241 (the lifetime ban provision of the state Constitution) ensures that they will never be fully rehabilitated, continues to punish them beyond the terms their culpability requires and serves no protective function to society. It is thus a cruel and unusual punishment.”

The case eventually could be appealed to the U.S. Supreme Court. If so, it would be the second case dealing with felony suffrage in Mississippi to go before the Supreme court this year.

In June the U.S. Supreme Court refused to hear another case seeking to find Mississippi’s lifetime felony voting ban unconstitutional. That case sought to have the felony voting ban declared unconstitutional because it was originally adopted as part of the 1890 Constitution in an attempt to prevent Black Mississippians from voting.

The framers at the time admitted they placed the lifetime ban in the Mississippi Constitution as a tool to keep African Americans from voting. Those crimes placed in the 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.

Under the original language of the 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. Murder and rape now also are exclusionary.

In the 5th Circuit ruling, the majority pointed out that the state constitution granted the Legislature the authority to restore voting rights, presumably, to ensure that white Mississippians were not permanently banned from voting. In modern times, the Legislature usually restores voting rights to a handful (usually no more than five people) each session.

The lawsuit that was addressed by the three-judge panel was filed by the Southern Poverty Law Center, Simpson Thacher & Bartlett LLP and others on behalf of Mississippians who have lost their voting rights. 

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