Maybe the 5th U.S. Circuit Court of Appeals will surprise everyone by ruling that most of Mississippi’s felony voting prohibitions are unconstitutional. But this particular court, made up of judges from Mississippi, Louisiana and Texas, is a pretty conservative group, which reduces the likelihood of sweeping change.
On the surface, though, there are strong arguments that the writers of the Mississippi Constitution, approved in 1890, intended to discriminate against Black residents when they devised a list of felony crimes that would make anyone convicted of them permanently ineligible to vote.
The thinking at the time apparently was that Black residents were more likely to commit the crimes listed in the constitution as cause for losing the right to vote. If the writers wanted a backup plan in case poll taxes and literacy tests didn’t work, they guessed correctly.
The 1890 Constitution originally listed nine felonies for which a conviction resulted in the loss of the vote. In 1950, the Legislature removed burglary from the list, and in 1968 it added murder and rape. An attorney general’s opinion in 2009 expanded the list of disqualifying felonies to 22, where it stands today.
Plaintiffs in the case, which has already been rejected at the district court level, say the state constitution’s felony voting prohibition continues to unfairly affect Black people. An advocacy group has reported that Mississippi is one of seven states where more than 14% of Black residents have lost the right to vote.
But Mississippi’s deputy solicitor general told the 5th Circuit judges this past week that the ultimate question is whether the constitution’s felony disenfranchisement provision meets the requirements of the U.S. Constitution’s equal protection clause. He said it does, and if the law is applied equally to all races, the 5th Circuit probably will say that he’s correct.
It’s further worth noting that if the right to vote is important, there is a simple way to avoid losing it: Don’t commit felony crimes.
Assuming the 5th Circuit upholds the existing Mississippi provision, this issue seems destined for U.S. Supreme Court review. And deservedly so, because another question that should be asked is why 22 felony crimes should carry a penalty that lasts long after a convict has gotten out of prison or completed the terms of probation.
Mississippi has one of the highest incarceration rates in the country, thanks to a penchant in the past to use incarceration as the preferred form of punishment. More recently, though, the state has spent a great deal of time and money on alternative sentences to reduce costs by keeping nonviolent offenders out of prison, and to help them normalize their lives to be productive members of society.
These are admirable goals, and the state has had some success at it. But what message does it send if those who broke the law get their lives back together but still cannot vote?
The loss of voting rights should be reserved for the most serious crimes. Murder, rape and child sexual abuse come to mind. But generally, if we are willing to give felons a second chance, this ought to include voting rights. No court should have to tell Mississippi that.
