Now less than a month out from the beginning of the 2025 state legislative session, the question of whether Mississippi's lifetime felon voting ban is constitutional has never been more politically pressing.
Attorneys from the Southern Poverty Law Center, as well as the private firm Simpson, Thacher and Bartlett, have recently appealed their case to the United States Supreme Court, arguing the law represents cruel and unusual punishment and is thus in violation of Eighth Amendment protections.
Their appeal to the nation’s high court comes only months after the full slate of judges on the Fifth Circuit Court of Appeals ruled that Mississippi lawmakers, not federal courts, should decide whether or not to change the state’s laws.
Jon Youngwood, Global Co-Chair of Simpson Thacher’s Litigation Department, sayswhat’s ultimately at stake is a matter of democracy.
“Wrongfully denying access to the voting booth to broad groups of citizens, such as those who have completed their sentences for past convictions, is inconsistent with the United States Constitution. In filing a petition with the U.S. Supreme Court, we remain confident in this case, and our clients remain committed to ensuring that their right to vote – and the right of their fellow citizens to do the same – is restored,” Youngwood said in a statement exclusive to MPB News.
At question for SCOTUS, should it decide to hear the appeal, is Section 241 of the state’s 1890 constitution, which when written enumerated several crimes considered to be disenfranchising for life – included among them timber theft, forgery and other non-violent offenses.
State lawmakers have only added to the list of crimes since, now totaling more than twenty.
Between 1994 and 2017, according to an expert contracted by the SPLC, nearly 50,000 Mississippians were disenfranchised under the law.
Nearly 30,000 of those have completed their sentences but remain disenfranchised, and roughly 60% are African American.
Zakiya Summers, a Democratic House member representing much of West Jackson, Pearl and Richland, says understanding the historical context of Section 241 is imperative to understanding its impact today – and why it must be struck down.
“In the Senate, what we keep hearing is that the constitution speaks for itself. We know that we are operating from the 1890 constitution, and the portion in there that speaks to disenfranchisement was inserted in that document because of racism. The framers of that time felt that these crimes were more likely to be committed by black folk,” said Summers.
“The goal was to make sure that newly freed slaves could still be in the prison system and not be able to exercise their political power. So that's going to be a huge challenge as we move forward.”
A separate, yet similar federal lawsuit was also appealed to the U.S. Supreme Court in 2023, arguing the law was both written and carried out with the racist intention Summers mentioned above.
In that case, attorneys with the Mississippi Center for Justice and MacArthur Justice Center argued the law’s origins were in clear violation of the 14th Amendment’s equal protection clause, which requires states to treat people equally.
But justices in that case declined to hear the appeal, siding with the Fifth Circuit, which said Mississippi lawmakers had done enough through amendments to cleanse the law of its initial racist intent.
Matt Steffey, a professor at the Mississippi College School of Law, disagrees – and says the law remains a tool that achieves the pretextual exclusion of Black voters.
“The unquestioned purpose of the Mississippi constitution was to roll back reconstruction and return to a form of racial apartheid in this state. Given how many people are incarcerated, and given how many more of those are Black, the idea that there is no remediation that allows you to become a member of society, fully participate and vote... it's very hard to justify,” Steffey told MPB News.
“If one were to have an open debate on this issue, it's very difficult to argue why a lifetime ban serves the basic purposes of deterrence or rehabilitation, so long that's what the criminal justice system is designed to serve.”
‘Not what we’re going to do, but what we can prevent from happening’
The 2024 state legislative session in Jackson, like many before it, ended in disappointment for those attempting to overturn Mississippi’s lifetime felon voting ban.
House Bill 1609, co-sponsored by several Democrats as well as Republicans Price Wallace and Fred Shanks, sought to restore voting rights to those convicted of nonviolent felonies – but the effort was killed in the Senate’s notoriously steadfast constitution committee.
13 individual suffrage bills – one of the few mechanisms formerly incarcerated Mississippians can explore to have their voting rights restored – managed to pass, but four were swiftly vetoed by Gov. Tate Reeves at the end of the session.
Data compiled by Blake Feldman and Caleb Bedillion, an attorney working in criminal justice reform and reporter at the non-profit Marshall Project, respectively, shows that in the period between 1997 and 2024, 207 out of 494 individual suffrage bills were successful.
When combining that figure with those who were incarcerated for any one of the qualifying felonies over the same period, Mississippi’s re-enfranchisement system restores the voting rights to effectively 0.00014% of people each year.
Kabir Karriem, a House Democrat representing the city of Columbus, was the sponsor or co-sponsor – along with Rep. Zakiya Summers – on many of those suffrage bills. He describes the vetoes as a slap in the face, and says he expects their efforts in the 2025 session to be just as challenging, if not more-so.
“With this particular session, what we’re hearing is not what we’re going to do, but what we can prevent from happening. Something we have to put in the forefront of our discussions is that there is a pallet for broader restoration, but at what cost, and what will we have to give up to get it done?" Karriem asked a group of voting rights advocates earlier this month.
“At the Capitol, what starts out as a beautiful Clydesdale can end up as a Billy goat by the end of the session. [HB] 1609 had everything in it: automatic expungement, restoration of voting rights after five years for nonviolent offenses,” said Karriem.
“But that's how it started out; at the end, it was very watered down and we were really just trying to get it across the finish line. And of course, it got stuck over in the Senate when Senator [Angela] Hill wouldn't bring it out of committee.”
The repeated legislative hurdles to repealing Section 241 via constitutional amendment is why Amir Badat, voting special counsel at the NAACP's Legal Defense Fund (LDF), suggests approaching broad restoration from a different angle.
He also wants the coalition of voting rights groups, disenfranchised voters, lawmakers and re-entry advocates to devise the best strategy for achieving their goal during next year's session.
"We could do it through the suffrage process, but instead of doing a suffrage bill that would apply to only one person, it would be a suffrage bill that would apply to everyone who is currently disenfranchised and will be disenfranchised in the future under the disenfranchising laws."
"One thing that we've talked a lot about within the advocacy groups and with Representative Summers and Karriem is about the risks of doing it through a statutory mechanism, which could potentially result in a legal challenge, and that would make the actual restoration of rights not effective," said Badat. "It's important for us to be on the same page about the right ways to make it actually effective legally."
The Rule of Five
That could also happen if the Supreme Court were to hear the current appeal and rule in the plaintiffs favor, in this case a class of Mississippians who have completed their sentences but remain disenfranchised.
Appeals to the country's high court require four votes in favor to be heard by the nine justices, and five in favor to issue a majority opinion on the case.
But much like the Fifth Circuit Court of Appeals, thought to be one of the most conservative in the United States, the Supreme Court has also experienced a markedly conservative drift, although to a lesser degree.
For Matt Steffey, the Mississippi College law professor, that makes the chances of the Court hearing the Eighth Amendment appeal unlikely.
"One would guess perhaps that there is some interest by the three to the left of the Court's center, but saying you're to the left of the Court's center doesn't really put you very far-left. But the three most progressive justices on the court are what one would think would be a receptive audience," he said.
"When the Supreme Court looks at the map, most of the states that have lifetime bans are states of the former Confederacy or adjacent to the former Confederacy.The trend line is unambiguous. Whether it's enough here?It's very hard to say. It's difficult, but not impossible, for me to see five members of the U.S. Supreme Court say it's enough."
Even if the Supreme Court were to hear the appeal during the 2025 state legislative session, Steffey remains unsure it would convince key Mississippi lawmakers to reconsider Section 241, either in part or in its entirety.
"The great majority of people I talk to think this is unfair and a miscarriage of justice. It appears that the ruling governmental cadre of overwhelmingly, or exclusively, white Republicans -- with a supermajority in Mississippi -- feel that rather than a scarlet letter, it's a badge of honor that Mississippi is holding a long standing firm against this trend."