Hopkins v. Secretary of State Delbert Hosemann
| Docket Number | 19-60662,consolidated with No. 19-60678 |
| Decision Date | 04 August 2023 |
| Citation | 76 F.4th 378 |
| Parties | Dennis HOPKINS, individually and on behalf of a class of all others similarly situated; Herman Parker, Jr., individually and on behalf of a class of all others similarly situated; Walter Wayne Kuhn, Jr., individually and on behalf of a class of all others similarly situated; Bryon Demond Coleman, individually and on behalf of a class of all others similarly situated; Jon O'Neal, individually and on behalf of a class of all others similarly situated; Earnest Willhite, individually and on behalf of a class of all others similarly situated, Plaintiffs—Appellees, v. SECRETARY OF STATE DELBERT HOSEMANN, in his official capacity, Defendant—Appellant, |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeal from the United States District Court for the Southern District of Mississippi No: 3:18-CV-188, Daniel P. Jordan, III, Chief Judge
Jonathan K. Youngwood, Esq., Janet A. Gochman, Simpson, Thacher & Bartlett, L.L.P., New York, NY, Lisa S. Graybill, National Immigration Law Center, Austin, TX, Bradley E. Heard, Southern Poverty Law Center, Decatur, GA, Ahmed Soussi, Southern Poverty Law Center, New Orleans, LA, Paloma Wu, Esq., Mississippi Center for Justice, Jackson, MS, for Plaintiffs—Appellees.
Justin Lee Matheny, Esq., Mississippi Attorney General's Office, Jackson, MS, for Defendant—Appellant.
Carroll E. Rhodes, Esq., Attorney, Law Offices of Carroll Rhodes, Hazlehurst, MS, Joshua Tom, American Civil Liberties Union of Mississippi, Jackson, MS, for Amicus Curiae American Civil Liberties Union of Mississippi.
Carroll E. Rhodes, Esq., Attorney, Law Offices of Carroll Rhodes, Hazlehurst, MS, for Amicus Curiae Mississippi State Conference of the National Association for the Advancement of Colored People.
Louis Peter Petrich, Ballard Spahr, L.L.P., Los Angeles, CA, Joseph Patrick Sakai, Sheppard Mullin Richter & Hampton, L.L.P., Sheppard Mullin Richter & Hampton, L.L.P., for Amicus Curiae American Probation and Parole Association.
Andrew T. Tutt, Arnold & Porter Kaye Scholer, L.L.P., Washington, DC, for Amici Curiae Cato Institute, DKT Liberty Project, Due Process Institute.
Before King, Jones, and Dennis, Circuit Judges.
In this class action, Plaintiffs, representing persons who have been convicted of certain crimes and have completed the terms of their sentences, challenge their disenfranchisement by two provisions of Article XII of the Mississippi Constitution of 1890. The first provision, Section 241, mandates permanent, lifetime disenfranchisement of a person convicted of a crime of any one of "murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy."1 The second, Section 253, provides for a discretionary, standardless scheme for the Mississippi Legislature to restore the right to vote to disenfranchised persons on an individualized basis by a two-thirds vote of all members of each house of the Legislature.
Plaintiffs sued Mississippi's Secretary of State (the "Secretary"), contending that Section 241 violates the Eighth Amendment's prohibition on cruel and unusual punishment and the Fourteenth Amendment's guarantee of equal protection under the law. They also claim that Section 253 violates the Fourteenth Amendment's guarantee of equal protection of the laws and the First Amendment guarantee of freedom of speech. The Secretary responded that Plaintiffs lack Article III standing, that their claims are barred by the doctrine of state sovereign immunity, and that all of their claims fail on their merits.
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.
We accordingly reverse the district court's contrary ruling, render judgment for Plaintiffs on this claim, and remand the case with instructions that the district court grant relief declaring Section 241 unconstitutional and enjoining the Secretary from enforcing Section 241 against the Plaintiffs and the members of the class they represent. Plaintiffs' equal protection claim against the Secretary with respect to Section 241, however, is foreclosed by the Supreme Court's decision in Richardson v. Ramirez, 418 U.S. 24, 94 S.Ct. 2655, 41 L.Ed.2d 551 (1974). Additionally, Plaintiffs lack standing to challenge the legislative process embodied in Section 253 through this action.
Sections 241 and 253 of the Mississippi Constitution are, with the exception of several amendments to Section 241, original to the state's 1890 Constitution, which was adopted in reaction to the expansion of black suffrage and other political rights during Reconstruction. See Harness v. Watson, 47 F.4th 296, 300 (5th Cir. 2022) (en banc). After wresting control of state government from black leaders and their Republican allies through a campaign of violence and electoral fraud, Mississippi's white political leadership called for a new state constitution that would ensure "a home government, under the control of the white people of the State." Senator J. Z. George, He Addresses a Large Audience at His Old Home, THE CLARION-LEDGER (JACKSON) 1 (Oct. 24, 1889). In 1890, the state legislature voted to convene a constitutional convention in order to draft and adopt a new state constitution. From the outset, the object of the 1890 Mississippi Constitutional Convention was clear: to ensure the political supremacy of the white race. See Harness, 47 F.4th at 318 (Graves, J. dissenting). Key to accomplishing this end was a package of "voter qualifications and procedures" that delegates adopted "to exclude black citizens from participation in the electoral process." Miss. State Chapter, Operation Push v. Allain, 674 F. Supp. 1245, 1251 (N.D. Miss. 1987), aff'd, 932 F.2d 400 (5th Cir. 1991).
Although the delegates were explicit about their goal of white political control, they were careful to avoid provisions overtly violating the Fifteenth Amendment's ban on restricting voting based on race. Convention's Committee on the Elective Franchise (the "Franchise Committee") thus proposed voter qualification requirements that were facially race neutral. These included the kind of poll taxes, literacy tests, and residency requirements that were common in the American South during the post-Reconstruction era. Among these requirements was also a criminal disenfranchisement provision that remains today as Section 241 of the Mississippi Constitution. The measure was designed to target as disenfranchising offenses those that the white delegates thought were more often committed by black men. Harness, 47 F.4th at 300; Ratliff v. Beale, 74 Miss. 247, 20 So. 865, 868-69 (1896) ().
The possibility that the disenfranchisement provisions might ensnare not only black men but also poor white males caused concern at the Convention. So, in an effort to mitigate the fear that the disenfranchisement provisions would also affect whites, the Convention ratified several "escape" clauses. For example, to reduce the impact of literacy tests on poor white males, the Convention enacted the "Understanding Clause," a provision that allowed a voter to pass a "constitutional interpretation test" by giving a "reasonable interpretation" of the state constitution. The Franchise Committee justified this "Understanding Clause" on the grounds that it would "exclude . . . [n]o white man who has sense enough to go to the mill," and urged that the clause would "secure[ ] a white basis upon which to erect a permanent State government." Don't Like It But Takes It, THE CLARION-LEDGER (JACKSON) 1 (Oct. 9, 1890).
Another of the escape clauses was the suffrage restoration provision that is contained in Section 253. Section 253 allows the Mississippi Legislature to, by a two-thirds vote of the elected members of both houses, restore the voting rights of any person disenfranchised by Section 241. MISS. CONST. art. XII, § 253. While the record behind the enactment of Section 253 is scant, its timing and context suggest it was intended to limit the impact of Section 241's criminal disenfranchisement provision on white men, providing a limited "safety net" to allow any whites unintentionally disenfranchised by Section 241 to escape its effects. And, like the Understanding Clause, Section 253 includes no objective standards of any kind, allowing legislators unfettered discretion in restoring the franchise to...
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