A provision of the 1890 Mississippi Constitution designed to prevent Black people voting was not meant to be punitive, the office of Attorney General Lynn Fitch argued Tuesday before a full panel of the U.S. 5th Circuit Court of Appeals. The full panel of the New Orleans-based appeals court is hearing the second case in less than three years claiming a provision of the Mississippi Constitution that permanently prohibits some people convicted of felonies from voting is in violation of the U.S. Constitution, Mississippi Today reports. In August a three-judge panel of the 5th Circuit in a 2-1 decision found that the lifetime voting ban violates the Eighth Amendment of the U.S. Constitution because it is cruel and unusual. But the full panel of the court, known for its conservative rulings, vacated that decision and ordered Tuesday’s hearing. It is not known when the full panel – about 20 judges — will rule on the issue. But it is likely that the full panel’s ruling will be appealed to the U.S. Supreme Court. Judge James Graves, who was the third Black member of the Mississippi Supreme Court in modern times before being appointed to the 5th Circuit, asked how the 1890 provision that inserted the lifetime ban in an effort to disenfranchise African Americans could not be considered punitive.
Scott Stewart of the state Attorney General’s office, responded that the lifetime ban was simply one of the regulations, such as a residency requirement, placed on voting. But the state had previously conceded that the original intent of the lifetime ban was to prohibit Black Mississippians from voting. The framers at the time admitted they placed the lifetime ban in the Mississippi Constitution as a tool to keep Black people from voting. The framers said they believed Black Mississippians were more likely to commit some crimes. Those crimes placed in the state 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. The list has since been modified to adhere to changes in how crimes are identified in state law. But under the original language of the Mississippi Constitution, a person could be convicted of cattle rustling and lose the right to vote, but those convicted of murder or rape would still be able to vote — even while incarcerated. Those convicted of murder and rape are now also prohibited from voting. “Permanent disenfranchisement is not punitive and does not fall under the Eighth Amendment at all,” Stewart told the judges. The lawsuit was filed by the Southern Poverty Law Center, Simpson Thacher & Bartlett LLP and others on behalf of Mississippians who have lost their voting rights.