A follow-up to my post two weeks ago about the wacky Fifth Circuit decision holding that a Mississippi law that disenfranchises individuals who have been convicted of a felony violates the Eighth Amendment’s bar on cruel and unusual punishments.
Not surprisingly, the state of Mississippi has asked the Fifth Circuit to rehear Hopkins v. Hosemann en banc. Here is an excerpt from Mississippi’s summary statement of why en banc rehearing is warranted:
A divided panel in this case held—for the first time in our Nation’s history—that a law disqualifying felons from voting is a cruel and unusual punishment. The panel’s sweeping invalidation of a decades-old state constitutional provision is irreconcilable with Supreme Court and Fifth Circuit precedent, conflicts with decisions of other circuits, and—if left to stand—will inflict profound damage and sow widespread confusion. This Court should grant rehearing en banc to maintain uniformity of decision and address issues of exceptional importance.
The panel decision conflicts with binding precedent. The panel ruled that it could invalidate a category of felon disenfranchisement, that Mississippi’s disenfranchisement law imposes “punishment” under the U.S. Constitution, and that that law is cruel and unusual. As Judge Jones explained in dissent, all those conclusions are wrong.
First, the panel did not have the option of stripping Mississippi of its power to disenfranchise felons indefinitely. Longstanding Supreme Court precedent rejects the view that a State is barred from indefinitely disenfranchising an entire category of felons.
Second, even if that were not so, the panel was wrong to conclude that Mississippi’s disenfranchisement of felons is a “punishment” subject to the Eighth Amendment. Under Supreme Court precedent, Section 241 of the Mississippi Constitution is a nonpunitive voting regulation.
Third, even if disenfranchisement were a punishment, it is not cruel and unusual. The Constitution recognizes that States may disenfranchise felons, it places no temporal limits on that power, nearly every State disenfranchises some felons, and many States still permanently disenfranchise some felons.
The panel decision also conflicts with decisions of other circuits. Over 50 years ago, the Second Circuit—in a decision by Judge Friendly—rejected an Eighth Amendment challenge to a felon-disenfranchisement law. That court held that felon disenfranchisement is not a punishment and, even if it were, it is not cruel and unusual. The panel here reached the opposite conclusions. The panel decision also conflicts with Eleventh Circuit precedent upholding a disenfranchisement law like Mississippi’s.
The panel decision raises questions of exceptional importance. The panel invalidated a longstanding constitutional provision that this Court recently upheld en banc. The decision strips Mississippi of a power that federal law recognizes that it possesses. That power is important: it concerns who is eligible to participate in making the State’s laws. The decision opens to question other disenfranchisement laws and many laws imposing collateral consequences on those convicted of crimes.
(I’ve added some paragraph breaks and omitted a citation.)