The US Court of Appeals for the Fifth Circuit has consented to reconsider its prior ruling that a provision of the Mississippi Constitution — one that permanently disallows people with certain felony convictions from voting — is unconstitutional. This development came about last Thursday.
The reconsideration of the case, which pertains to Section 241 of the Mississippi Constitution, arises upon a petition from Secretary of State Delbert Hosemann. Under the Federal Rule of Appellate Procedure 35, Hosemann argues that the initial decision contradicts precedent from both the US Supreme Court and federal appellate courts. He further asserted that the case raises questions of exceptional importance, leading the court to vacate its prior decision pending resolution of the matter.
In its earlier August decision, the court ruled that Section 241 went against the US Constitution’s Eighth Amendment clause that prohibits “cruel and unusual punishment.” Judge Edith Jones, however, dissented from the court’s decision. Hosemann aligned himself with Jones’s standpoint in his petition to the court, stating:
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.
Rule 35 permits a federal appellate court to revisit a previous decision if a majority of its judges agree to a rehearing en banc. An en banc proceeding comprises of all judges from a given court, such as the Fifth Circuit, hearing a case dealing with matters of exceptional complexity or importance. The involved parties will submit fresh briefs and oral arguments for the court’s consideration at a future date.