Full Fifth Circuit upholds Mississippi's lifetime voting ban for some felony convictions

Also: The Sixth Circuit tosses challenge to Tennessee's anti-drag law on standing grounds.

On Thursday, the full U.S. Court of Appeals for the Fifth Circuit upheld the constitutionality of a provision in Mississippi’s Constitution that is rooted in racism and bars those convicted of certain felonies from voting for life.

On a 13-6 vote, the conservative appeals court rejected the three-judge panel’s decision from last year holding that the ban violated the Eighth Amendment’s ban on cruel and unusual punishments.

Such lifetime bans have receded from the law, but they do remain. Mississippi is one of 15 states with some lifetime ban — although four of those states only have permanent bans for election-related offenses.

In Mississippi, convictions for “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy” all lead to lifetime disenfranchisement under Section 241 of the state’s Constitution. The only exceptions to the ban are if a covered individual is pardoned or if a bill is passed by a super-majority of both chambers re-enfranchising that person.

In addressing the constitutionality of such bans, Judge Edith Jones, a Reagan appointee, declared for 11 members of the conservative court what should be seen as a shocking admission of the shallow value the judges place on the protection of voting rights.

“An apt comparison may be drawn between disenfranchisement and occupational disbarment, which the Supreme Court has repeatedly upheld as a nonpunitive consequence of criminal convictions,” Jones wrote — equating losing a job with losing the right to vote.

This would be a horrifying statement from any judge. It is all the more appalling coming from a judge whose court’s jurisdiction includes Louisiana, Mississippi, and Texas — and whose historical jurisdiction during the 1960s Civil Rights movement included much of the deep South.

Compare that with a statement from the dissent, written by Judge James Dennis, a Clinton appointee, on behalf of 6 members of the court.

“Voting is the lifeblood of our democracy and the deprivation of the right to vote saps citizens of the ability to have a say in how and by whom they are governed,” he wrote. “Permanent denial of the franchise, then, is an exceptionally severe penalty, constituting nothing short of the denial of the democratic core of American citizenship.”

And yet, on Thursday, more than two-thirds of the Fifth Circuit — including one Biden appointee, Judge Irma Ramirez — OK’ed such a denial in Mississippi.

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Going deeper

Jones wrote for the court that the Fifth Circuit’s decision was largely controlled by a 1974 U.S. Supreme Court case, Richardson v. Ramirez, which Jones called a “formidable obstacle” to plaintiffs’ challenge. In that case, then-Justice William Rehnquist upheld California’s disenfranchisement of three individuals who had completed serving prison sentences and parole for certain felony offenses in an equal protection challenge to the law. “Richardson cannot be minimized by these Plaintiffs and controls this case,” Jones declared, calling arguments to the contrary “feeble.”

Further, Jones — again, for the full court — asserted that Richardson was not even necessary to its conclusion.

“[F]elon disenfranchisement is not a punishment, much less cruel or unusual,” Jones wrote for the Fifth Circuit, comparing the argument for barring it under the Eighth Amendment to the “avant-garde interpretation” of the Eighth Amendment that had been adopted by the U.S. Court of Appeals for the Ninth Circuit in addressing jurisdictions taking action to criminalize homelessness. Equating the arguments, Jones then noted that the Supreme Court “squarely rejected” that position in the Grants Pass decision this term.

Instead, she concluded, the solution for those subjected to this racist provision — which, full disclosure, the Fifth Circuit sitting en banc in 2022 held, on a 10-7 vote, is not racist any longer — is for them to “go and convince the State legislatures. Do the hard work of persuading your fellow citizens that the law should change.”

Ramirez did not join Jones’s opinion and wrote nothing, so we do not know her thinking, but she did join the judgment — affirming the district court’s ruling denying relief to the individuals suing to strike down the ban. Judge Catharina Haynes, a George W. Bush appointee, took the same step, concurring solely in the judgment.

In dissent, Judge James Dennis, a Clinton appointee, noted the fundamental failure of the majority, writing, “[T]he majority largely conflates the Plaintiffs’ challenge to the punishment at issue in this case—permanent disenfranchisement of free persons who have completed all terms of their sentences—with a challenge to felon disenfranchisement in general.”

As to Richardson, Dennis’s description — though a bit of a complex maze to read — is effective at showing how poor the majority’s treatment of it is:

To Jones’s claim that felon disenfranchisement is not punishment, Dennis was indignant. “Even a cursory review of Section 241’s legislative history reveals that the delegates of the Mississippi Constitutional Convention of 1890 intended Section 241 to be nothing else but punitive,” he wrote.

When the Supreme Court denied certiorari of the 2022 ruling that Mississippi’s ban is no longer racist, Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented.

“Constitutional wrongs do not right themselves,” Jackson concluded. “With its failure to take action, the Court has missed yet another opportunity to learn from its mistakes.”

On Thursday, the Fifth Circuit did the same. Again.

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Sixth Circuit tosses challenge to Tennessee anti-drag law

Continuing with a string of an anti-LGBTQ decisions, the U.S. Court of Appeals for the Sixth Circuit on Thursday held, on a 2-1 vote, that the group challenging Tennessee’s anti-drag law lacks standing to bring the lawsuit because what they do doesn’t violate the law.

In reality, though, Judge John Nalbandian, a Trump appointee, made challenges to the law almost an impossibility by simply changing the law. Once he made those changes to narrow the reach of the law, he declared that if the group — Friends of George’s — would be violating the law with its drag shows, then their shows wouldn’t be protected under the First Amendment.

After arguments were held in the case earlier this year, I wrote here that these two principles “go to show quite clearly how the ambiguity in these sorts of laws can be used as a shield when the laws are challenged even if that same ambiguity could be used as a sword in a prosecution (or even arrest).”

Although I’ll go through the opinion — and the dissent from Judge Andre Mathis, a Biden appointee (who also dissented in Wednesday’s Title IX ruling) — let me just take a moment to explain the big-picture problem here.

When these anti-drag laws were being considered in legislatures, many of us discussed how a significant issue with these measures was that they were vague enough — and subjective enough — that they would chill otherwise legal speech by people fearing prosecution. That is, in fact, part of their purpose.

Tennessee passed one such law, the Adult Entertainment Act, and two federal judges blocked enforcement of the law in two different parts of the state — in part for that reason.

As detailed in Mathis’s dissent, the law states:

Mathis also detailed how Tennessee law defines “harmful to minors”:

Looking at those provisions, U.S. District Judge Thomas Parker, a Trump appointee, saw the constitutional problems clearly — ruling after trial that the law set up content-based and viewpoint-based restrictions on speech and that the law was unconstitutionally vague and overbroad.

Nalbandian turned all of that on its head on Thursday, setting a trap for virtually any would-be challenger to the law. In doing so, he was joined by Judge Eugene Siler, a George H.W. Bush appointee. (To show how long the 87-year-old Siler has held on to his seat, he took senior status in 2001 and was replaced by Judge John Rogers, who has himself also already taken senior status. Rogers, in turn, was replaced by … Nalbandian.)

To upend that challenge and protect the law from further challenges, he simply removed the law from the context in which it was implemented and potential enforcement efforts. He then applied a 1993 Tennessee case involving a different law altogether to the AEA to establish standards limiting the law that are not present within the law. As such, he wrote, “the crux of this case is whether FOG has met its burden to demonstrate that its shows are arguably adult-oriented performances that lack serious value for a reasonable 17-year-old.”

That’s not what the law — see above — says. With that narrowing accomplished, however, Nalbandian concluded that Friends of George’s lacked standing because it did not show “an intention to arguably violate the AEA.”

Then, going further, Nalbandian noted that even if Friends of George’s could show that, it wouldn’t have a case if it didn’t show that the action at question “arguably affected with a constitutional interest.” Here — and, again, this is so only because of his narrowing of the law — Friends of George’s couldn’t do so because “there is no constitutional interest in exhibiting indecent material to minors.”

What?

In short, because Nalbandian already interpreted the Tennessee law as being more limited than it was written, he was then able to conclude that the law had a limited (and constitutional) reach and any violation would be due to unprotected speech. It’s completely circular reasoning.

What’s more, his interpretation of the law is not binding on the state or local prosecutors, who remains free to enforce it as they wish. It’s a farce of a ruling, that completely undermines the entire purpose of constitutional protections against vague and overbroad laws.

In dissent, Mathis explained that both “Supreme Court and Sixth Circuit precedent dictate a different result.” Additionally, he wrote, the law is an “unconstitutional content-based restriction on speech.”

Simply looking at relevant precedent and the Tennessee law, Mathis wrote:

That is clearly all correct under the text of the AEA. Thursday’s ruling is only possible due to Nalbandian’s narrowing.

To that, Mathis explained, “To be sure, we have relied on a state court’s narrowing construction of a state statute in determining whether a plaintiff has sustained an injury in fact. But Tennessee courts have not adopted a narrowing construction of the AEA.”

Mathis also went on to say that he would have found the law unconstitutional had the court found standing.

Melissa Stewart, one of the lawyers for Friends of George’s, announced already that they will be seeking en banc review from the full Sixth Circuit — which is certainly not a sure thing, but Mathis’s dissenting opinion lays out quite clearly how Nalbandian’s opinion improperly applied standing precedent and made a strong argument on the merits.