Written By: Sydney Whetstone
Earlier this month, the United States Court of Appeals for the Fifth Circuit overturned a Reconstruction-era voting law in Mississippi in a case called Hopkins v. Hosemann, potentially restoring the right to vote to tens of thousands in the state. The law in question, Section 241 of the Mississippi Constitution, bans anyone convicted of certain felonies from ever voting in an election in the state.
In a 2-1 decision, the Fifth Circuit ruled that Section 241 is cruel and unusual punishment and violates the Eighth Amendment of the United States Constitution. Mississippi’s permanent ban is not unique, and should an appeal of this decision reach the U.S. Supreme Court, there could be implications in at least eight other states with similar laws.
Felony Disenfranchisement Laws
It is estimated that in 2022, 4.6 million people could not vote due to a felony conviction. Most states have laws that suspend or revoke the right to vote based on criminal convictions, with variability from state to state. D.C., Maine, and Vermont are the only states without restrictions on felon voting, meaning people can vote from prison. Of the remaining forty-eight states, there currently are nine, including Mississippi, where those convicted of certain felonies may permanently lose the right to vote. Most states restore voting rights upon release from prison or after the completion of probation or parole.
But this patchwork of state laws is rooted in a shared history¬¬—many of these laws and policies date back to the post-Reconstruction era and were specifically designed to disenfranchise Black voters. These laws continue to impact Black voters disproportionately, and previous lawsuits have, at least in part, challenged the constitutionality of felon disenfranchisement laws in Mississippi and other states on such grounds, arguing that the laws discriminate against Black voters and are unconstitutional under the Equal Protection Clause of the Fourteenth Amendment.
The Plaintiffs in Hopkins made this very argument. And the Fifth Circuit devotes part of its opinion to unpacking the racist history of Mississippi’s Section 241. However, the court did not ultimately find that the law violated the Fourteenth Amendment. Instead, the court adopted a more novel argument: Mississippi’s ban amounts to cruel and unusual punishment.
Cruel and Unusual Punishment
Under the Eighth Amendment, no punishment for a crime can be cruel or unusual. But what exactly does “cruel and unusual punishment” look like?
First, the law or policy in question must be a “punishment.” While this may seem like a straightforward inquiry, the Hopkins majority and dissent disagreed on this point. The majority pointed to a federal law that forbids Mississippi’s constitution from depriving any citizen of voting rights except as punishment for a felony conviction. The court reasoned that if punishment is the only legally permissible purpose for the law, Section 241 must be intended as punishment. The dissent disagreed with the characterization and concluded that the law’s purpose is to designate who is eligible to vote in elections, not punish anyone.
Second, the punishment is considered “cruel and unusual” if it does not comport with “evolving standards of decency.” Basically, a form of punishment is “cruel and unusual” if it is not in line with what society deems acceptable. A court determines this by considering factors, including: 1) whether other states use the same form of punishment, 2) trends in legislation that signal rejection of the punishment, and 3) whether the punishment is proportional to the crime.
Here, the court looked to felon disenfranchisement laws in other states and found Mississippi to be an outlier. As I noted above, most states restore voting rights once someone is released from prison or has otherwise completed their sentence. Only nine states permanently strip those with felony convictions of the right to vote. Additionally, the legislative trend across the country is to expand voting rights for those with felony convictions, suggesting societal distaste for felon disenfranchisement. Finally, in considering the proportionality of the punishment, the court stated that the right to vote is the “democratic core of American citizenship” and that denying this fundamental right to people who have completed the terms of their sentences is particularly cruel.
The dissent critiqued the majority’s argument, in part, by noting that the Supreme Court has only ever done an Eighth Amendment analysis like this on a narrow category of cases involving the death penalty and life without parole for juvenile offenders, which they did not find analogous to deprivation of voting rights. They pointed to the odd result of finding that disenfranchisement is “cruel and unusual” when the death penalty and life without parole are not. Finally, the dissent deflated the majority’s argument that voting rights should necessarily be restored upon completion of a sentence, pointing to all the ways that people with a felony on their record have their freedoms limited outside of prison: sex offender registries, mandatory reporting to employers, it is illegal to own a gun, etc.
The court ultimately deemed Section 241 unconstitutional, which means that Mississippi will not be allowed to enforce the law. And thousands in the state may have their right to vote restored. The state has said it does intend to appeal the decision to the Supreme Court, so this may not be the final word. Just over a month ago, the Supreme Court declined to hear a case involving the same Mississippi law, but that case was decided on a Fourteenth Amendment argument, and the law was upheld. Based on a different argument, an appeal of the Hopkins case may very well reach the highest court. A decision there would likely have implications for voting rights beyond just the state of Mississippi and might provide more clarity on what we consider to be “cruel and unusual punishment.”
Christopher Uggen et al., Locked Out 2022: Estimates of People Denied Voting Rights, THE SENTENCING PROJECT (Oct. 25, 2022).
Emily Wagster Pettus, Supreme Court Won’t Hear Challenge to Mississippi’s Jim Crow-era Ban on Voting After Some Felonies, AP NEWS (June 30, 2023).
Hassan Kanu, Lifetime Felony Voting Bans Are Cruel and Unusual Punishment, REUTERS (Aug. 10, 2023).
History of Felon Voting, PROCON.ORG, (June 29, 2023).
Hopkins v. Hosemann, No. 19-60662, 2023 WL 4990543 (5th Cir. Aug. 4, 2023).
State Voting Laws & Policies for People With Felony Convictions, PROCON.ORG, (May 1, 2023).
Richardson v. Ramirez, 418 U.S. 24 (1974).