The U.S. Fifth Circuit Court of Appeals is often criticized, especially by Democrats, of being too conservative in its rulings.
Whether that be the case, it is hard to argue with the court’s decision this past week that puts the onus in Mississippi on restoring felon voting rights where it really belongs: the people and the representatives they elect.
Voting rights advocates, having been unable so far to convince the Republican-majority state Legislature to change the law that imposes a lifetime voting ban on those convicted on any of 22 specified felonies, hoped that the federal courts would intervene.
Those advocates tried to argue that the ban was unconstitutionally discriminatory because it originated in a deliberate effort by the white ruling class in the late 19th century to disenfranchise Blacks in Mississippi. The Fifth Circuit rejected that argument, though, saying that whatever racism was embedded in the original intent, subsequent revisions to the ban removed the taint. An appeal to the U.S. Supreme Court died without a hearing.
Advocates then tried an even weaker argument, that the voting ban constituted “cruel and unusual punishment” and was unconstitutional on those grounds. Although a three-judge panel of the Fifth Circuit initially agreed, the full panel blocked that decision from taking effect and this past week formally threw it out. The majority said, in effect, that it was a gross exaggeration to call a voting ban so severe a punishment that it would shock the conscience.
The majority on the court said that if such a ban is now considered undesirable, it should be fixed in the Legislature, not in the courts.
“Do the hard work of persuading your fellow citizens that the law should change,” the majority opinion challenged.
Fair enough. Here’s why the lifetime voting ban on felons is wrong.
First, it’s inconsistent in the crimes it deems worthy of the punishment. Some on the list are mundane nonviolent crimes, such as writing too many bad checks. Meanwhile, some felons, such as those accused of selling drugs, don’t lose their voting rights at all. They are eligible to vote even while behind bars.
Second, it’s inefficient. In order to have voting rights restored after completing their sentence, felons have to either depend on the mercy of a governor or the good graces of the Legislature to deal with their individual cases. Most recent governors have been disinclined to restore voting rights, and the Legislature deals at most with a few each year out of the thousands of former inmates who could be eligible.
And perhaps most importantly, a lifetime voting ban, even if it’s not cruel, is still unfair. The whole point of the criminal justice system should be to reform those who break the law and restore them to being productive, law-abiding citizens. Regaining the right to vote could be an important element in the restoration process. Withholding that right is like saying that society will never forgive them for the mistakes they made.
During the 2024 legislative session, the House of Representatives recognized that such an unforgiving attitude was a mistake. It passed a bill to automatically restore the voting rights of any nonviolent offender five years after the offender completed his or her sentence. The Senate killed the bill.
It’s going to take more hard work obviously to get the Senate on board, but it can be done.
Those who believe in second chances have a better case than those who don’t. They just have to keep working at it until they win more people over to their side.
