Hopkins v. Hosemann

November 6, 2019 • Legal Briefs
By Andrew Tutt, Clark Neily, and Jay Schweikert

In Mississippi, conviction of numerous crimes means the lifelong loss of the right to vote. Murder and rape are on the list. But so is passing a “bad check” (i.e. writing a check you know will bounce). Miss. Code. Ann. § 97–19-55(1)(a). As is timber larceny (i.e. taking “from the lands of another” more than $250 in “merchantable timber”). Miss. Code. Ann. § 97–17-59(2). And felony shoplifting (i.e. shoplifting three or more times). Miss. Code. Ann. § 97–23-93.

And for every crime on the list there is a similar or even worse crime not on the list.1 Check fraud means permanent disenfranchisement. But credit card fraud carries no similar penalty. Robbery (yes); burglary (no); statutory rape (yes); sexual battery (no); bribery (yes); aggravated assault (no); perjury (yes); controlled substance offenses (no). By disenfranchising individuals for minor crimes, Mississippi drastically departs from the States that understand permanent disenfranchisement for what it is—among the most severe penalties our society can inflict. And Mississippi rubs salt in the wound by choosing those crimes arbitrarily as well.

Mississippi has limited power to disenfranchise its people because § 2 of the Fourteenth Amendment authorizes States to restrict citizens’ right to vote “for participation in rebellion, or other crime.” But Mississippi’s system has ventured far beyond the bounds of that limited authority. To the Framers of that Amendment, and for generations thereafter, the meaning of “other crime” was absolutely clear. It meant a crime of similar wrongfulness to the act of engaging in rebellion. Lifelong disenfranchisement is proportionate only for commission of the most serious crimes. Indeed, the entire premise of permanent disenfranchisement is that an offender’s actions are so egregious that he deserves to be permanently severed from the political process.

Over the last century, however, Mississippi has lost sight of that fundamental Fourteenth Amendment requirement and has been disenfranchising people for minor crimes. Mississippi’s system of disfranchisement has now resulted in mass disenfranchisement. And Mississippi’s approach is particularly punitive. Mississippi is one of the few States that disenfranchises for life. It offers only a handful of people the opportunity for re‐​enfranchisement through an arcane legislative procedure that is functionally unavailable to most of its citizens. Less than 1 percent of the people disenfranchised in Mississippi have been re‐​enfranchised in the last 20 years.

The harm of mass disenfranchisement is not just that it violates the original understanding of the Fourteenth Amendment (although it certainly does). It also has tremendous economic and political costs. For many ex‐​felons, the restoration of the right to vote provides a clear marker of civic reintegration and is a key component of changing the former offender’s identity and self‐​image. The refusal of the state to restore voting rights can stand as a major impediment to ex‐​felons who yearn to lead an upstanding life. Failing to re‐​enfranchise former offenders also increases recidivism rates, leading to a perverse and vicious cycle wherein disfranchisement leads to even more disenfranchisement. Disenfranchisement also erodes faith in the legitimacy of our democracy and its institutions. It is difficult to say that the government is “of, by, and for ‘the People’ ” when a substantial proportion of “the People” are legally ineligible to vote for the remainder of their lives on Earth.

Mass disenfranchisement for minor crimes is inconsistent with the original understanding of the Fourteenth Amendment. It imposes severe costs on our society and threatens our democracy. The Court should reverse the decision below.

About the Authors
Andrew Tutt