mississippi legislature section two hundred and fifty three dollars does not detract from the gubernatorial pardon instead it provides an additional avenue for a restoration even though under federal law no avenue is required at all the mississippi constitution constitutionally commits the enforcement of section two hundred and sixty three to the mississippi legislature because of this the secretary of state as an executive branch court did not consider the plaintiff's injury in the court put do not consider causation addressability in the context of the plaintiff's injury and did not consider standing in the context of the quote form of the relief salt which is a requirement by the supreme court in cases like daimler chrysler it's also a requirement of discord if you look at k p to special important forty nine dollars of that decision where the court talks about how standing is not dispensed in gross so you do have to look at the claim separately and so if you look at what the district court said the district court sounds dnieper to thirty three because the secretary of state in really a clerical way keeps electronic custody enjoying to act in a way which is outside that officials authority to act in the st place so here because there is no standing for purposes of the section two hundred and fifty three claims the district court should have dismissed on  right to vote it's a constitutional provision that authorizes but does not mandate the mississippi legislature to exercise its discretionary authority to grant a suffrage bill of the plaintiffs allege that the court's order so the district court sounds that questions as to the original intent of the law because it was originally interacted in one thousand nine hundred and eighty but the district court never either analyzed who let along sound that there was any present day unconstitutional facts from section two hundred and fifty three or to your point judge jones that there was any unconstitutional application of the law in present day but one of vs underwood was not just concerned about the original an act of the law in fact if you look at pages two hundred and twenty seven dollars to thirty three dollars of hunter it talks about the present day effects of the law and it talks about the present day operation of the law and in fact judge jones in your opinion in cotton this court did as well if you look at footnote nine of the cotton decision this court says quote hunter requires unconstitutional effects as well as motive plaintiffs here basically admit that they don't have any present day proof of any unconstitutional effects of the law and because of this they try to circumvent their burden and they say that as convicted felons they are quote unquote convicted felons who have already lost their right to vote pursuant to a state's valid exercise of the affirmative sanction in section two of the th amendment do not still have a constitutionally protected right to vote under the more general terms of the force but that doesn't mean in no constitutional imitation applies that's why we have cases like cotton that's why we have cases like hunter but it does mean that section two of the th amendment affirmatively sanctions permanent had committed a wide variety felonies which you can see in footnote nine the argument there was that those felons could not be disenfranchised the supreme court rejected that claim and it said quote the exclusion of felons from the vote has state properly has an interest in excluding from the franchise persons who have manifested a fundamental antipathy to the criminal laws of the state or the nation by violating those laws sufficiently important to be classified as  richardson or maris actually in richardson versus ramirez actually cited favorably to the beach on decision you can see this in connecticut board of pardons versus dumb shall as well they are a clemency applicant challenge to a statute that gave to the point of which is to curb discretion you clearly don't have the right to challenge the decision as discretionary in fact there is broad discretion to grant clemency even when life is at stake you can see that me the eleven circuits decision smith versus no you can also see that this court's decision in garcia vs jones from two thousand and eighteen does dennis which is a decision that you were on the panel and think about that for a moment quite literally every single right conceivable is at stake for that clemency applicant but a purely discretionary clemency regime even when life is at stake doesn't violate the th amendment the last point i'll make about this because i see i'm running out of time is plain to say that that the decision making is different here because it's very legislative officials appoint this court to footnote two of the jumpshot decision in that case the district court had been a little critical of of connecticut because connecticut there actually placed their clemency decisions in a board of pardons as opposed to the governor and the board of pardons was actually legislative create legislatively created that did not matter for the supreme court's decision instead the focus is on the fact that it is a clemency type decision or a species of a claim and see type decision that is the focus is not on the official making the decision it is  good morning on your honor inmate pleads to court i'm here on behalf of twenty nine thousand mississippi citizens who are permanently barred from voting because they were previously convicted of felonies notwithstanding the fact that many of them completed their sentences long ago their jail time is over their probation is over the parole is over but their punishment continues their disenfranchisement enforced d at every step by the secretary of state let me clarif just one thing are you talking about all felons including those currently incarcerated or all felons who have served their sentences whether for murder or for theft the  case a plot does not apply to incarcerated felons so even if they committed murder and rape and so on would serve their sentence you're trying to re enfranchise well your honor i'm not sure there are that many who've been convicted of murder who finished their parole and i think what the standards actually line up is that the length of the sentence when you couple in probation and parole is the state's judgment as to what the pro proper punishment is and  ends it ends what what you get to though is a point that's made in the state's summary judgment papers and in their papers on appeal which is effectively perhaps it is cruel and unusual punishment for some crimes and not for others i will tell you that the six plaintiffs were the name plaintiffs in this case none of them are convicted of crimes of the nature that you just outlined most of them are valued still throwing on behalf of the class so you're all right and i  i don't want to waste all your time i just wanted to get that straight we are suing on behalf of the class of anyone who's completed their sentence that is correct not incarcerated but it does include all all folks who have completed what regardless of what the crime is it's a disenfranchising crime what the remedy is and what the result is can be something for the district court if there are some crimes that are deemed to be cruel or unusual and some that are not let's just cut to the quick here because you know despite the length of the circuit courts that herein stewart sent in the fifty years almost fifty years since it was issued is something that we deal with directly and we think properly and the analysis begins i think with the th circuit's decision  harvey written by justice o'connor where in that case there was a challenge to richardson on the ground that richardson didn't consider the argument that felonies of that were not  a common law were covered by the other crimes exception justice o'connor properly and in keeping with many other commentaries and decisions addressing matters that the supreme court has looked at  decided with the panel that because the arguments presented had not been presented that that panel would would look at them again and they did and they did not change the holding and richardson the argument that we have on richardson is looked everywhere in the papers it was not presented and therefore just as the harvey court considered it we think this court is empowered to consider a certain supreme court would be empowered but this court in the st instance you know i mean i  realize that there's a lot of discussion nowadays about the extent of precedent and so on but it does concern me if and court justice o'connor was certainly entitled to do whatever she chose in richardson along with that panel but when you come out of direct tolling of the court which is that disenfranchisement of felons is permitted by the th amendment and then you say oh but they didn't argue such and such that sounds to me very much like the cases where the court says we may not have discussed an issue of jurisdiction in a previous case but that means we didn't decide it but that is a separate completely separate issue that doesn't go to the fundamental interpretation of the text and same argument was made in harvey and the panel and justice o'connor not obviously sitting as the supreme court justice but sitting by designation on the th circuit thought consistent with many other authorities in our briefs that the court at the circuit level the power to look at that argument is the power to contradict the holding of richardson i don't think would be a contradiction of the holding if the argument was not considered and i think harvey is that case and what other cases have you you have any supreme court authority for that one second dollars on each of them go to the power of the courts to look and those are supreme court cases the best circuit court case i think i can give you is harvey which is directly on point given that it's the exact same provision i'm happy to go on to the merits of the bridge perhaps time permitting but i i do want to go to the th amendment which is not a challenge to richardson as counsel i think acknowledge there is nothing in richardson that bars consideration of other provisions of the constitution and richardson itself was remanded back to the district court for consideration of equal protection type claims the claim there was that some areas of california were enforcing these laws and some warrant and they were all doing it differently in the interim california changed its law and removed effectively felon disenfranchisement but there's that case i think green case the nd circuit you noted that at that time forty one jurisdictions or sorry forty two states had permanent felon disenfranchisement laws and that court ruled that at that time there was no national consensus against permanent disenfranchisement the numbers today are more than reverse in the fifty years since richardson the trend has been overwhelmingly toward what we are seeking here which is that completion of sentence felons former felons are given the right to vote and participate in society there are some  differences of power the two parties have presented the state of the law we think it quite clear that more than forty on states plus d c now do not permit lifetime  disenfranchisement for any offenses with some exception in a limited number of states frankly not in most for government related or election related on fraud vote stealing or the like you can go through all the numbers  and go back and forth but while the states presented several charts the most useful i think actually to look at is just to take it on their chart which is at fifty three of their reply brief before this court filed on november  and if you go through their chart although they do point out that there are some states like vermont and maine that even allow for voting while incarcerated if you go through when you look at the st five boxes on their chart they to conclude that it at least forty states restore the right to vote once a convicted felon has completed his or her sentence and in many of them before even the expiration of parole or probation which is not something that we're somebody for the rest of their life for a crime that they might have committed at a very young age and again mississippi has a wide swath of crimes that they cover they range from passing a bad check when you're eighteen years old to something called which is stealing some couple one hundred dollars worth of wood all of those are treated with lifetime disenfranchisement and all of those if you look through the history of the enactment i can talk about the readmission activist discussed in depth in our brief as well as other cases histories passages but the notion that that losing the right to vote for the majority of your life after you've completed otherwise mendoza martinez case which we walk through in their briefs and our colleagues respond to but any way you slice it this severe eight penalty this severe punishment  is punishment and should be treated as such and therefore comes under the guise of the th amendment addressing very quickly the very very limited supreme court authority on this which i think is the trop case that's discussed in the briefs there is no way to read the passage on the other than that the discussion of whether or not a bank robber who is barred from voting is being punished or not punished is in the form of a hypothetical in facts not whatever the actual intent was of removing the right to vote to the hypothetical back bank robbers so trop or trope itself on is not a bar on this there is significant history  in the supreme court in the recent supreme court of the court considering th amendment challenges again we don't believe richardson even thought about the th amendment the argument wasn't presented when was the last time an th amendment challenge succeeded in the applied to to death cases and who might be subject to the death penalty it's been applied to the length of confinement for juveniles and whether or not juveniles can be given life sentences  operative decisions and as it relates to the conditions of confinement it relates to methods of death penalty and it all relates to all of that matters of punishment but but again for felons without the understanding that it was a punishment that is what the readmission access as and it's not just that it says it that's a reflection of what everyone at the time believed disenfranchis or whatever it is which is the only one that i think might pertain to these kinds of post conviction type situations and it certainly is a sliding scale and again it may be that there are which i think the state concedes that i have a stronger argument on some crimes than other crimes are cases brought on behalf of the whole class the classes represented by individuals the class includes individuals who've committed in the past a range of crimes but the district courts error here was not even substantively looking at any of what we're discussing the district court error by ruling that the th amendment as interpreted by richardson barred an  amendment claim and that was clear error there is an th and then the clear claim here we believe it is a successful one we believe for the whole class but again even by i think the state's admission in their papers before this court and below there are crimes here to couple with lifetime disenfranchisement can only be particularly in the context of what the other forty nine dollars states have done there there are two that are like mississippi saw say the other forty seven plus plus the district i'm just for the sake of rhetoric are we going to decriminalize marijuana on the same basis there's a trend within the state to decriminalize marijuana and therefore the controlled substances act is hear your honor and mitt let me address it because counsel may address it on on rebuttal but there is this slippery slope argument and i'm well aware of it and they say well if if if these former these citizens who happen to be form with felons or restore the right to vote how about guns how about serving on a jury and what i would say to you there is there is no national consensus so there is no argument for guns or dory i'd also say just on the simple facts of it losing your right to vote is a very different nature than certainly jury and so i hear the slippery slope it's why courts just decide what's in front of them but the the circumstances here are just overwhelming in terms of what the other forty seven states have done and even during the pendency of this case both florida and nevada have moved from one column to the other in t final order with all the parameters of it which i think was simply an oversight we've all been moving forward under the assumption that it's a fully certified class he was he had some questions over the harness case for the hopkins case which had been consolidated and how that affected everything i think the case is actually now been separated in front of this court and so those issues are no longer present what do you say to the standing argument on section two hundred and fifty three so that the the secretary of state's involvement in all aspects of the disenfranchisement rebut isn't it correct i mean isn't it absolutely correct that when he granted declaratory judgment against the secretary or whether you and even in her official capacity or whether you and join the secretary those edicts have absolutely no effect with regard to the legislative or enfranchise my process i think it probably depends on what the order is your honor discord in k p and other cases of the knowledge that you don't have to find the sole person involved in a decision or an arson this person has certainly has responsibilities with respect to elections but this person secretary of state has no responsibility or authority with respect to remain franchising on your claim i don't believe that's correct your honor this secretary whoever he or she might be at the time there will be a change the secretary publishes all the laws if you're saying the secretaries are responsible for providing the lists and disenfranchise felons to the counties or whatever that's fine the secretary probably also this response of course for publishing the laws but that doesn't mean you can sue the secretary of state to attack the legislature that the secretary is responsible for maintaining the seams data the secretary is responsible for training the local that's what i'm telling you and that has nothing to do with the legislative function under two hundred and fifty three dollars the secretary is not the legislative or but the secretary f your class to challenge to fifty three via a lawsuit against the secretary of state that the secretary of state can be ordered that absent the implementation by the state of an appropriate replacement county election official and say that each county election official may not and force the felon disenfranchisement unless the state legislature act that is similar to the problem in the last case we had where the contention was made you can't order you can't have a reverse not imputation of knowledge likewise under ex parte young you can't have through the lowest person on the totem pole of state enforcement and get to the legislative decision we didn't sue the lowest person totem poll we sued the secretary of state who is the one who instructs throughout the state and trains  whether or not somebody is entitle to vote be it through disenfranchisement or properly in franchise meant to fifty three dollars is through out the secretary's material both training pamphlets the application of voter where that and and by changing that and saying that this cannot be enforced until standards or whichever of the claims is violated and i if i could i know my light is up but are you going to set say whatever you have not said before i'll say one thing  which is this discussion of the effects an application under cotton and hunter on the presentation by the state in the state's papers that is equal protection yes under under under the equal protection and the application of this courts and footnote nine of hunter the presentation ignores the fact that the impact of to fifty three dollars which is essentially no one gets re enfranchise eighteen people in six years that's effectively as zero disproportionately in a huge manner affects the black citizens of mississippi and that is the effect currently of to fifty amendment or felonious enfranchise and it has always been considered a collateral consequence to a felony conviction the conviction just like the exclusion of felons from the jury box and just like the