Gov. Glenn Youngkin’s elections team has admitted in the run-up to pivotal General Assembly elections that it removed nearly 3,400 qualified voters from the state’s rolls, far higher than the administration’s previous estimate of 270.
Elections officials under Youngkin (R) acknowledged what it called the mistaken removal of about 3,400 voters in a news release Friday — five weeks after early voting began for Nov. 7 General Assembly elections. The outcome will determine the viability of Youngkin’s last-minute presidential prospects and the fate of his conservative legislative agenda, which includes banning most abortions after 15 weeks.
The news release claimed that local registrars had already reinstated all but “approximately 100” of the voters, all of whom had been convicted of felonies, had their voting rights restored and then went on to violate the terms of their probation. The state’s computer software had erroneously counted the probation violations as new felonies that disqualified them from voting, administration officials have said.
Paloma Wu allowed herself a moment of celebration in August, when a panel of three federal judges on the Fifth Circuit Court of Appeals issued a shock decision to strike down Mississippi’s longstanding practice of permanently stripping voting rights from people convicted of certain felonies. By disenfranchising people “forever,” the panel ruled, the state was violating constitutional protections against cruel and unusual punishment.
Wu, who helped file the case as an attorney at the Southern Poverty Law Center and now works at the Mississippi Center for Justice, told Bolts the ruling was “one of the most meaningful things in our community of many, many, many people who are fighting like hell in Mississippi.”
“The people of Mississippi, in their struggle, felt recognized for a glimmer of a moment by the judicial system,” she added.
The moment lasted just eight weeks. After Mississippi’s Republican officials appealed the panel’s decision, the full Fifth Circuit in late September agreed to hear the case en banc. That means its entire bench of judges, a famously conservative lot, will issue a new decision at an undetermined time in the future.
The announcement vacated the August panel ruling. And it shut the door on the tens of thousands of Mississippians who could have benefited from the August ruling and taken part in the state’s Nov. 7 elections for governor, lawmakers, all prosecutors, and many other offices….
Mississippi has one of the nation’s harshest disenfranchisement systems. Nearly all states take away voting rights for some period of time after a felony, but the vast majority restore them when people are released from prison or complete their sentence. In Mississippi, though, people who are convicted of any of 23 categories of charges lose their voting rights for life. (People convicted of felonies that aren’t on that list don’t lose their rights.)
According to an analysis conducted by the Sentencing Project, a national research and advocacy organization, roughly 240,000 Mississippians were barred from voting as of the 2022 midterms; that’s nearly 11 percent of the state’s voting-age population, the highest rate in the nation. Estimates vary as to the exact number of people who are disenfranchised, with the plaintiffs behind the lawsuit saying the figure may be lower; the state has no transparent record and the list of disenfranchising felonies has evolved over time, making the task of identifying—and reaching out to—affected Mississippians tricky.
The state technically allows people to regain their rights if they receive a pardon from the governor, or if the state adopts a law with the specific purpose of enfranchising them, but such acts are vanishingly rare. Only seven individuals regained their voting rights this way in 2021 and 2022, and zero this year, Mississippi Today reported.
Bolts Magazine: While Virginia officials have admitted to improperly removing some people from voter rolls, they are taking their sweet time in fixing their mistake. This despite the fact that the next election is just THREE WEEKS away. The purge occurred after Virginia erroneously coded felons, whose voting rights had been restored , as having new felonies. Republican Governor Glenn Youngkin’s administration acknowledges the error, but appears to be taking the position that it is not significant because only about 270 voters were purged. Voting rights advocates in Virginia are less sanguine, saying “they don’t even know how many people the state has reinstated so far and how many remain improperly purged, since the state is sharing little information.”
By way of context, Governor Youngkin rescinded his predecessor’s policy of automatically restoring people’s voting rights when they leave prison, a decision that is currently the subject of litigation.
N.Y. Times explores potential implications of excising two relics of the state’s 1890 disenfranchising constitution. The 2023 election will proceed without a geographic support threshold for statewide offices and with the votes of felons, if they can be registered and encouraged to vote. These changes are making Mississippi’s governor’s race “improbably competitive.”
“Black leaders and civil rights groups in Mississippi see the Nov. 7 election as a chance for a more level playing field and an opportunity for Black voters to exercise their sway: Roughly 40 percent of voters are Black, a greater share than in any other state.”
Medicaid expansion is central to the race, but for a Democrat to win, Black voters will need to be mobilized and White Democrats will need to be persuaded to vote with them. Given the state’s long history of low voter turnout and racially polarized voting, this is no small hurdle.
Under the 1890 constitution, “candidates for statewide office had to win both the popular vote and a majority of State House districts.” This provision was overturned by voters in 2020. In addition, a constitutional provision barring individuals convicted of specified felonies from voting disenfranchised about one in six Black voters, according to the Brennan Center for Justice. The latter provision may be reinstated on appeal but not before this fall’s election.
Michael Moore has spent two years trying to regain the right to vote. He has worked to meet Tennessee’s byzantine list of criteria for having voting rights restored and filed extensive paperwork only to be denied because he still owes thousands of dollars in court obligations, more than he can afford.
Then late last month, Tennessee’s elections director effectively shut down the process for restoring voting rights to Moore and hundreds of thousands of others in the state stripped of voting rights due to past felony convictions.
In a July 21 memo, Tennessee Coordinator of Elections Mark Goins, a former Republican lawmaker, told local election offices that, on top of showing they’ve checked off all the boxes listed in state law, formerly incarcerated people must now also complete a separate process: persuade the governor to issue a pardon, or a local judge to issue an order restoring their rights. These officials can reject a request at their sole discretion, regardless of the criteria a petitioner has met.
It costs $159.50 to ask a judge for such an order in Davidson County, home to Nashville, where Moore resides, adding another financial hurdle to what was already a nearly impassable process.
Moore says he remains determined to work his way through the new process. “I feel like it’d make me a whole citizen again, getting my voting rights,” he told Bolts. Still, he says it felt particularly painful to pass by people at the polls during last week’s mayoral election in Nashville, knowing the state had just made it harder for him to ever again participate. “I’m hurt looking at the people voting, and I wish I could make a local difference in my community,” he said.
“They’re making it near impossible,” he added. “I think it’s by design. Once they open a door, they put out another block.”
Mississippi is violating the U.S. Constitution’s ban on cruel and unusual punishment by permanently stripping voting rights from people convicted of some felonies, a federal appeals court panel ruled in a split decision Friday.
Two judges on the 5th U.S. Circuit Court of Appeals panel ordered the Mississippi secretary of state to stop enforcing a provision in the state constitution that disenfranchises people convicted of specific crimes, including murder, forgery and bigamy.
If the ruling stands, thousands of people could regain voting rights, possibly in time for the Nov. 7 general election for governor and other statewide offices.
Mississippi Republican Attorney General Lynn Fitch expects to ask the full appeals court to reconsider the panel’s 2-1 ruling, her spokesperson, Debbee Hancock, said Friday.
From the majority opinion:
For the reasons explained below, we hold that Plaintiffs are entitled to prevail on their claim that, as applied to their class, disenfranchisement for life under Section 241 is unconstitutional cruel and unusual punishment within the meaning of the Eighth Amendment. In the last fifty years, a national consensus has emerged among the state legislatures against permanently disenfranchising those who have satisfied their judicially imposed sentences and thus repaid their debts to society. Today, thirty-five states plus the District of Columbia disavow the practice embodied in Section 241, a supermajority whose size is dispositive under controlling Supreme Court precedent. Mississippi stands as an outlier among its sister states, bucking a clear and consistent trend in our Nation against permanent disenfranchisement.
And in our independent judgment—a judgment under the Eighth Amendment that the Supreme Court requires we make—Section 241’s permanent disenfranchisement serves no legitimate penological purpose. By severing former offenders from the body politic forever, Section 241 ensures that they will never be fully rehabilitated, continues to punish them beyond the term their culpability requires, and serves no protective function to society. It is
thus a cruel and unusual punishment.
From Judge Edith Jones’s dissent:
Laws like this one have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection Clause does not bar states from permanently disenfranchising felons, it dispensed some advice to the losing parties:
We would by no means discount these arguments if addressed to the legislative forum which may properly weigh and balance them. . . . But it is not for us to choose one set of values over the other. If respondents are correct, and the view which they advocate is indeed the more enlightened and sensible one, presumably the people . . . will ultimately come around to that view. And if they do not do so, their failure is some evidence, at least, of the fact that there are two sides to the argument.
Richardson v. Ramirez, 418 U.S. 24, 55, 94 S. Ct. 2655, 2671 (1974). In other words: go and convince the state legislatures. Do the hard work of persuading your fellow citizens that the law should change. Today, the court turns that advice on its head. No need to change the law through a laborious political process. The court will do it for you, so long as you rely on the Due Process Clause, rather than the Equal Protection Clause. With respect, this is not a road that the Constitution—or precedent—allows us to travel. I dissent
Bolts: “At issue is an executive order Democratic Governor Andy Beshear issued in 2019, on his third day in office, that has restored the voting rights of at least about 180,000 people, or five percent of Kentucky’s adult population…. The fate of that order rests on the next governor’s goodwill, and each of the state’s last three governors have used their executive power to flip their predecessor’s policy on this issue. Beshear, a Democrat, is now running for re-election in this typically-red state against Republican Attorney General Daniel Cameron.”
Bolts: “Roughly 6,000 people are held inside the massive jail on the edge of downtown Dallas. The vast majority are incarcerated pretrial and many are likely eligible to vote, but few actually do. Only two people voted by mail from the jail in the 2016 presidential election. That number rose in the 2020 presidential election but remained a tiny share of the jail population, with 34 people returning a mail ballot.”
Center for Public Integrity has this story, part of its series on state high courts, tracing the state’s long-running fights over voting. Spoiler alert: “The North Carolina Supreme Court released its opinions in the redistricting, voter ID and felony disenfranchisement cases on the same day: April 28. In each case, the new majority handed a victory to Republicans in the legislature in a 5-2 ruling split along party lines.”
Tennessee has begun requiring felons who want their voting rights back to first get their full citizenship rights restored by a judge or show they were pardoned.
Election officials say the step is required after a June court ruling. But attorneys representing the state’s disenfranchised felons accuse officials of searching for ways to suppress Black voters….
The Campaign Legal Center is already suing Tennessee in federal court over the way it implements that law. They argue, among other things, that the state has failed to make clear which officials can sign the necessary forms, provides no criteria for denial, and offers no avenue for appeal. The class action lawsuit is scheduled to go to trial in November.
Tampa Bay Times reports: “Nearly five years after Floridians voted to allow people with felony convictions to restore their voting rights, the coalition that pushed for the change is suing the state, arguing Florida created a system that impedes the will of the voters.” You can find the complaint on behalf of the Florida Rights Restoration Coalition and four individuals here, and more coverage in WaPo and Axios.
From today’s final order list of the term, this dissent from Justice Jackson from a cert denial in Harness v. Watson:
The President of the 1890 Mississippi Constitutional Convention said it plain: “Let us tell the truth if it bursts the bottom of the Universe . . . We came here to exclude the negro. Nothing short of this will answer.” To further that agenda, the Convention placed nine crimes in §241 of the State’s Constitution as bases for disenfranchisement, believing that more Black people would be convicted of those crimes than White people. See Williams v. Mississippi, 170 U. S. 213, 222–223 (1898) (acknowledging that purpose, but expressing “no concern” regarding the Conventioneers’ objective); Ratliff v. Beale, 74 Miss. 247, 265, 20 So. 865, 868 (1896) (similar); 47 F. 4th 296, 300 (CA5 2022) (per curiam) (en banc) (case below) (recognizing §241’s discriminatory aim).
Eight of those crimes have remained in §241 since 1890, without interruption. Thus, the Convention’s avowed goals continue to be realized via its chosen mechanism: Today (just as in the Convention’s aftermath), thousands of Black Mississippians cannot vote due to §241’s operation. Petitioners brought this legal action to challenge §241’s continued use of the eight crimes as bases for felon disenfranchisement. 47 F. 4th, at 302.
The Court of Appeals for the Fifth Circuit properly recognized that, under this Court’s settled precedent, the mere passage of time cannot insulate from constitutional challenge a law that was invidious at its inception. See id., at 300, 304. That court could not escape acknowledging the similarities between this case and Hunter v. Underwood, 471 U. S. 222 (1985) (Rehnquist, J., for the Court), in which this Court unanimously invalidated an Alabama constitutional provision passed in 1901 because its “enactment was motivated by a desire to discriminate against blacks on account of race” and it “continue[d] to th[at] day to have that effect.” Id., at 233. But en route to affirming the District Court’s grant of summary judgment against petitioners, the Fifth Circuit proceeded to make two egregious analytical errors that ought to be corrected….