In the United States Court of Appeals for the Fifth Circuit
Case. No. 19-60662
Consolidated with Case No. 19-60678
Dennis Hopkins
v.
Mississippi Secretary of State Michael Watson
On Appeal From The United States District Court For the Southern District of Mississippi, Northern Division
In Case No.3:18-cv-188-dpj-fkb
Introduction and Summary of the Argument
Mississippi’s lifetime felon disenfranchisement scheme is unique.
The attributes that make it unique support the conclusion that this
particular scheme is cruel and unusual in violation of the Eighth
Amendment.
Mississippi’s lifetime disenfranchisement provision was instituted
in 1890 with the explicit purpose of excluding Black citizens from the political process and restricting their voting power. The taint of invidious racial discrimination, ingrained in Mississippi’s lifetime voting ban and reflected even today in its disparate effects and largely unchanged form, support the conclusion that this particular scheme is cruel and unusual.
The Eighth Amendment is centrally concerned with harms to human dignity, which include the dignitary harms to the individual and to society that flow from state-imposed discrimination.
Mississippi law also conspicuously lacks any non-arbitrary,
accessible process for citizens who have served their sentences to regain the franchise. Instead, it requires a super-majority vote of both houses of the legislature for re-enfranchisement. As a result, Mississippi’s voting ban is mandatory, permanent, and effectively irrevocable—even for certain minor offenses that require no period of incarceration.
Mandatory and irrevocable punishments are especially likely to violate the Eighth Amendment due to their inherent disproportionality. The severity, arbitrariness, and irrevocability of Mississippi’s particular lifetime voting ban also support the conclusion that it is cruel and unusual.
As a result of these features, Mississippi’s lifetime disenfranchisement scheme stands alone among the 50 states. No other state, in the South or elsewhere, still maintains a disenfranchisement scheme so openly originating in Jim Crow discrimination. Almost no other state has a scheme this severe and irrevocable. Indeed, the national consensus among the states—another salient Eighth Amendment consideration—is towards expanding and regularizing re-entry into civic life for those who have served their time, to the benefit of the individual and society.
Based on the unique elements of this particular irrevocable lifetime
voting ban, the Court can and should conclude that the challenged
scheme is cruel and unusual in violation of the Eighth Amendment.
…Mississippi’s mandatory, irrevocable, lifetime disenfranchisement
scheme, rooted in noxious racism, and unique in its arbitrariness and severity, is cruel and unusual.
Conclusion
Mississippi’s lifetime disenfranchisement scheme should be invalidated.
Full Brief of Reason Foundation, American Civil Liberties Union, and ACLU Mississippi as Amici Curiae In Support of Plaintiffs-Appellees