Full Fifth Circuit considers if Mississippi’s lifetime felony voting ban violates 8th Amendment

An unusually close case at the conservative appeals court.

On Tuesday morning, 19 judges of the U.S. Court of Appeals for the Fifth Circuit heard arguments over whether Mississippi can, consistent with the Eighth Amendment’s ban on cruel and unusual punishments, bar people convicted of any of a number of felonies from voting for the rest of their lives.

Jonathan Youngwood, the lawyer for the individuals challenging the ban, told the judges that only Virginia has as extreme a felony disenfranchisement law as does Mississippi.

It was a ban passed for explicitly racist purposes — the subject of earlier litigation — but Tuesday’s arguments came out of an Eighth Amendment challenge. In August 2023, two judges on a three-judge panel sided with those challenging the ban, holding that the Mississippi provision, Section 241, violated the Eighth Amendment.

“By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society,” Judge James Dennis wrote for himself and Judge Carolyn King, both Democratic appointees. “It is thus a cruel and unusual punishment.”

The next month, though, the full — and far more conservative — court announced that it would be rehearing the case, an en banc rehearing. As such, the panel opinion was vacated. The en banc hearing took place Tuesday in New Orleans.

In the arguments, Mississippi Solicitor General Scott Stewart — from Republican Attorney General Lynn Fitch’s office — argued that “[p]ermanent disenfranchisement is not punitive,” though, and thus should not be considered under the Eighth Amendment at all. The people of Mississippi, he said, can decide that they “don’t want to be governed by a thief.” It is, Stewart kept insisting, a “legislative judgment” about the “qualifications” for electors and the right to vote — and not a punishment.

The court — which hears cases out of Louisiana, Mississippi, and Texas — is viewed as the most conservative appeals court in the nation. And yet, the extreme nature of Mississippi’s law and argument in its defense, as well as a quirk of who is sitting on this particular en banc court, led to a real argument on Tuesday.

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Under the circuit court’s rules, all active judges participate in en banc arguments. Since Judge Irma Ramirez, a Biden appointee, was confirmed after the court agreed to hear the case en banc and took her seat on the bench in December 2023, that meant 17 judges. Of those, though, 12 were appointed by a Republican president. As such, a position backed by the 5 Democratic appointees would need support from 4 of the Republican appointees in a normal en banc argument to have the majority position.

But, there is another rule: Any senior judge of the appeals court who was on the initial three-judge panel in a case is allowed to sit en banc if they wish. Here, both of the judges in the panel majority, Dennis and King, are senior judges and the dissenting judge on the panel, Judge Edith Jones, is an active judge.

That changed the math on Tuesday. With a 19-judge panel, 7 of the judges are Democratic appointees. Thus, if all of those appointees side with the challengers, they now need 3 — and not 4 — Republican appointee judges to join them to craft a majority.

What’s more, this case does not come to the court on a clean slate — not even in terms of recent history. Just two years ago, a different en banc panel (of 17 judges) considered whether Section 241 violated equal protection guarantees — and held 10-7 that it did not. Then, two Republican appointees — Judges Catharina Haynes and Jennifer Walker Elrod — dissented. All five judges on the court then who were Democratic appointees also dissented, in an opinion by Judge James Graves Jr.

Haynes was more conclusive in her agreement: “I agree with the conclusion reached in Judge Graves's dissenting opinion as to what the decision in this case should be.” Elrod, on the other hand, believed that the case should be sent back to the district court “to address whether plaintiffs have demonstrated § 241's discriminatory effect.”

Tuesday’s arguments were not about the equal protection claim — the Supreme Court denied review of that Fifth Circuit decision in June 2023, over the dissent of Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor — but, rather, the Eighth Amendment claim. The underlying ban, though, is the same.

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At arguments on Tuesday, both Haynes and Elrod were members of the en banc court and a third Republican appointee, Judge Leslie Southwick, pressed Stewart on how many states have bans that do three things: (1) permanently disenfranchise, (2) don’t have an exception for first-time offenders, and (3) disenfranchise for more crimes than murder and rape.

Stewart had no full answer, only being able to quantify that around 1/3 of states have some permanent disenfranchisement. He could not, however, answer the full question.

Youngwood, meanwhile, was asked how common felon disenfranchisement was at the founding and at the passage of the Fourteenth Amendment — under which the Eighth Amendment is applied to the states.

“I do not dispute that felon disenfranchisement was common in the past,” he said, countering that there has been a stark change in states’ views of the appropriateness of it that now makes Mississippi’s policy an outlier. There is, he said, a “huge trend” toward allowing people to vote again in most circumstances once they have completed their sentence that changes the way the court should judge this case.

Youngwood was also asked about felon disarmament. Given the explicit protections of the Second Amendment, he was asked whether a decision that Section 241 violates the Eighth Amendment would have implications for laws banning firearm possession by people previously convicted of felonies.

In response, he argued that voting is such a foundational right — “the center of what we are” — that this case provides a stronger argument, even though the underlying principle of this case could be argued in other contexts.

The appeals court has no timeline by when it needs to issue a decision.