Commentary: Punishment after the punishment – Lifetime bans on voting rights for ex-felons in Mississippi is morally backward

By Christopher Young,
Contributing Writer,

For some it was the unthinkable happening when in early August 2023, a three-Judge panel of the Fifth Circuit Court of Appeals “struck down a white supremacist law that had persisted in Mississippi since it was first enacted by the state’s neo-Confederate government in 1890 to deny Black people the vote. The panel held 2-1 that a provision in the Mississippi state constitution that requires a lifetime ban on voting for people convicted of certain crimes violates the federal bar against “cruel and unusual” punishments,” contained in the U.S. Constitution’s 8th Amendment,” per Thompson Reuters, Attorney Hassan Kanu.
Justice James L. Dennis, a white man, on the Court for the past twenty-eight years, wrote in the 67-page decision… “Washington, D.C., and 39 states don’t impose lifetime disenfranchisement for offenses unrelated to election integrity, and 16 states have stopped the practice since 1974. There is sufficient evidence that evolving social standards have rejected laws like Mississippi’s. Mississippi’s law was adopted to ensure the political supremacy of the white race.” The judge said the law violated society’s evolving standards of decency and otherwise served no legitimate social purpose.
Per Hassan Kanu, “the court’s well-reasoned ruling establishes important precedent for other states to follow to eliminate all-too-common felon disenfranchisement policies that are fundamentally anti-democratic and unjust. Mississippi is one of 11 states that still permanently disenfranchises felons for offenses that don’t pertain to elections.”
The initial lawsuit, Hopkins v. Hosemann, was filed by The Southern Poverty Law Center and the law firm Simpson, Thatcher & Bartlett, LLP in 2018, on behalf of Mississippians who couldn’t vote even though they had completed their sentences – punishment after the punishment.
According to Patrick Berry, Counsel at the Brennan Center for Justice’s Democracy Program, writes, “the ban excluded over 10% of Mississippi’s voting age population from voting…the Reconstruction-era ban also disproportionately burdens the state’s Black population, disenfranchising one in every six Black adults – and that is not a coincidence.” Mississippi first adopted its lifetime voting ban as part of the state’s 1890 constitution, “in reaction to the expansion of Black suffrage and other political rights during Reconstruction,” the appeals court noted.
This decision pitted the mindset of the drafters of Mississippi’s 1890 constitution with the national consensus for turning away from inequitable punishments like this one. Ten other states have very similar bans: Alabama, Arizona, Delaware, Florida, Iowa, Kentucky, Nebraska, Tennessee, Virginia, and Wyoming. Delaware and Virginia are Blue states, per the Cook Partisan Voting Index – all the others and Mississippi are Red states.
The restoring decision by the Fifth Circuit panel is not final. As the old Southern expression goes, “faster than a cat lapping chain lightning,” Mississippi’s Attorney General Lynn Fitch requested that the case be reheard by the entire membership of the Fifth Circuit – en banc – and the case will be argued January 23, 2024, per the Thompson Reuters article, updated on December 6, 2023.
So, what is the government of the State of Mississippi fighting by appealing the decision of the three-Judge panel? They are fighting change. Everything in Mississippi is about race, and this fight is no exception. Per numerous sources including the Sothern Poverty Law Center, The Clarion-Ledger, and Mississippi Today, over 200,000 Mississippians are being disenfranchised. with this issue. 16% or one out of every six Black Mississippians – felons who have completed their sentences – are denied the right to vote. Black Mississippians represent 38% of the state’s population but 59.2% of the disenfranchised population.
This oppression in the full light of day, currently wielded by Attorney General Fitch, is an enduring extension of comments made by Senator James K. Vardaman, another drafter of the
1890 Mississippi Constitution – “‘There is no use to equivocate or lie about the matter . . . Mississippi’s constitutional convention of 1890 was held for no other purpose than to eliminate the [African American] from politics. Not the ‘ignorant and vicious,’ as some of the apologists would have you believe, but the [African American],” as reported by www.mississippifreepress.org.
Despite the political rhetoric of this being Mississippi’s time (implying movement away from the bottom), whenever the 100% White statewide elected officials or their 94% White agency heads encounter the intersection of change and status quo, they push back just exactly like Fitch is doing now. Pushing back against change with a glowing hot poker as if change is the devil. Pushing back against national trends, policies, and norms rooted in fairness and justice.
There is a painful disconnect far deeper than politics that keeps discrimination booming in Mississippi – a disconnection from liberty and justice for all. These modern-day Confederates often say the right thing, wrap it in nationalism and religion, then do just the opposite. Last week Fitch posted a tweet on X centered on the Pledge of Allegiance, “…I encourage you to carefully reread these words. It is my hope that we will be reminded of the important truth that we are a nation under God and ignite a renewed commitment to pursue unity, liberty and justice for all.”
Plainly, her words do not match her actions, and that seems unlikely to change. So let us focus our hopes on the active judges of the Fifth Circuit Court of Appeals, men and women who have devoted much of their lives to justice – in their rehearing of Hopkins v. Hosemann. May they find, as their panel did last August, that justice must be more than a word – especially in Mississippi.