Lifetime Voting Ban For Felons Will Be Weighed By Full 5th Circuit Court

In nearby Mississippi, a provision in the states’ 1890-post reconstruction Constitution outright bans convicted felons from participating in elections— for life. However, with a full en banc hearing now upcoming all twenty judges of the Fifth Circuit Court will rule on whether the law is Constitutional or represents as alleged by the previous three-judge ruling “cruel and unusual punishment.”

According to The Louisiana Illuminator, the case will most likely find its way to the U.S. Supreme Court regardless of the Fifth Circuit’s ruling. Bobby Harrison, writing for the outlet added “It will mark the second time the state constitutional provision on felony suffrage will be considered by the full 5th Circuit. The current lawsuit contends that the lifetime ban on voting imposed by Mississippi is unconstitutional because it is cruel and unusual punishment.”

In the court’s previous 2-1 decision reached in August, the panel of judges determined,

“By severing former offenders from the body politic forever, Section 241 (the lifetime ban provision of the Mississippi Constitution) ensures that they will never be fully rehabilitated, continues to punish them beyond the terms their culpability requires and serves no protective function to society. It is thus a cruel and unusual punishment.”

The ruling seemed largely framed around historical reports indicating the Section was adopted expressly to prevent Black Mississippians from qualifying to vote.

Harrison explained, “The framers at the time admitted they placed the lifetime ban in the Mississippi Constitution as a tool to keep African Americans from voting. The framers said they believed Black Mississippians were more likely to commit some crimes. Those crimes placed in the constitution where conviction costs a person the right to vote are bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement, bigamy and burglary.”

Sociologist James W. Loewen wrote for History News Network that the President of the 1890 Constitutional Convention said, “We came here to exclude the negro. Nothing short of this will answer.” MS History Now indicates that this man was Sol S. Calhoun. However, according to the outlet, “The key provision to do so was Section 244, requiring that voters must be able to give a ‘reasonable interpretation’ of any section of the state constitution. White registrars would judge ‘reasonable.’,” NOT Section 241. The methodology of excluding black voters wasn’t reportedly the felony disqualification, but a poll test which was subsequently outlawed by the Voting Rights Act of 1965.

So is this a case where the felony disqualification happened to occur adjacent to a blatantly racist law? Or that the entire 1890 Constitution of Mississippi should be thrown out for its’ alleged purpose of disenfranchising Black voters?

In the text of the complaint, Roy Harness; Kamal Karriem v. Michael Watson, Secretary of the State of Mississippi, the petitioners observed that in a ruling in 1998 found that, “Mississippi had “removed the discriminatory taint associated with the original version” when it amended Section 241 to remove burglary in 1950 and to add rape and murder as disfranchising crimes in 1968.”

So the question is no longer, was the provision racist and discriminatory when written. The question is whether the existing statute is discriminatory today on its own merits.

At the end of the day, we have to ask: What does claiming a prohibition against felons voting is inherently discriminatory against Black people? Isn’t that assertion discriminatory unto itself by suggesting that Black Mississippians are and will continue to be disproportionately felonious criminals? This is one of those situations where we genuinely can throw out the original intent of the framers because the law has been progressively altered to the extent that it barely resembles the original draft. We truly have to ask: what makes this Section of the Mississippi Constitution racially discriminatory? And what does this do to prohibitions in other states like Louisiana where a more limited prohibition exists?