United States Court of Appeals

for the Fifth Circuit

No. 19-60662

consolidated with

No. 19-60678

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,

versus

Secretary of State Delbert Hosemann, in his official capacity, 

Defendant—Appellant,

Appeal from the United States District Court 

for the Southern District of Mississippi

No: 3:18-CV-188

Before King, Jones, and Dennis, Circuit Judges.

James L. Dennis, Circuit Judge:

United States Court of Appeals

Fifth Circuit

FILED

August 4, 2023

Lyle W. Cayce

Clerk
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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

1 The Mississippi Secretary of State, the defendant here, is required by statute to 

treat additional crimes that the Mississippi Attorney General deems to be a species of the 

common law crimes listed in Section 241. See Miss. Code. § 23-15-151. For instance, 

timber larceny, armed robbery, and larceny under a lease agreement are all deemed by the 

Attorney General as disenfranchising crimes though they are not expressly listed in Section 

241. 
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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 (1974).

Additionally, Plaintiffs lack standing to challenge the legislative process embodied in Section 253 through this action.

I. Factual and Procedural Background

A. Mississippi’s 1890 Constitution and Sections 241 and 253

Sections 241 and 253 of the Mississippi Constitution are, with the exception of several amendments to Section 241, original to the state’s 1890 
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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 requirementsthat 

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, 20 So. 865, 868–69 (Miss. 1896) (explaining that 
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in enacting Section 241 the Convention aimed to “obstruct the exercise of 

the franchise by the negro race” by including as disenfranchising offenses 

only those “to which its weaker”—by which the court meant “black”—

“members were prone.”).

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 ClarionLedger (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

individuals.
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Mississippi’s 1890 Constitution was adopted by a vote of the delegates 

on November 1, 1890, without ratification by the people of Mississippi. Other 

Southern states took notice of Mississippi’s “success” in disenfranchising

its black electorate and used the State’s 1890 Constitution as a model when

adopting their own racial disenfranchisement provisions. See Franita Tolson,

What Is Abridgment? A Critique of Two Section Twos, 67 Ala. L. Rev. 433, 

469–71 (2015) (noting that South Carolina and North Carolina adopted constitutional disenfranchisement provisions in an effort to limit the black electorate).

Since its enactment, Section 241 has been amended twice. Harness, 47 

F.4th at 300. In 1950, “burglary” was removed from the list of disenfranchising crimes, and in 1968, “murder” and “rape” were added—the latter offenses having been historically excluded because they were not considered 

crimes a black person was prone to commit. See Ratliff, 20 So. at 868. Under 

Section 241, an individual who is convicted of a crime as minor as writing a 

bad check for $100 or stealing less than $250 worth of timber is permanently 

disenfranchised. Miss. Code § 97-19-67(1)(d); § 97-17-59.

Section 253 has never been amended, and, with the exception of gubernatorial pardon and the limited restoration for certain World War I and II 

veterans, it remains the only means for disenfranchised individuals to regain 

the right to vote. In the mid-1980s, an election law task force appointed by 

the Mississippi Secretary of State and two separate panels convened by the 

Mississippi Legislature proposed repealing Section 253 and replacing it with

an amendment that would automatically restore the right to vote to individuals convicted of disenfranchising crimes upon completion of their sentences. The Legislature, however, ultimately did not adopt this proposal as 

part of an election law reform bill enacted in 1986.
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Sections 241 and 253 continue to be part of the Mississippi Constitution and over the years they have been remarkably effective in achieving their 

original, racially discriminatory aim. In 2017, 36% of voting-age citizens in 

Mississippi were black. Yet, according to data provided by the Mississippi 

Administrative Office of the Courts, of the nearly 29,000 Mississippians who 

were convicted of disenfranchising offenses and have completed all terms of 

their sentences between 1994 and 2017, 58%—or more than 17,000 individuals—were black. Only 36% were white. The discretionary legislative re-enfranchisement permitted by Section 253 does little to alleviate this disproportionate burden, and, as a practical matter, legislative suffrage is exceedingly

rare: between 2013 and 2018, the Mississippi Legislature restored the right 

to vote to only eighteen individuals.

B. The Secretary’s Role in Enforcement of Sections 241 and 253

Federal law requires that each state designate a chief election official

who is “responsible for coordination” of the state’s duties under the National Voter Registration Act (“NVRA”). 52 U.S.C. § 20509; see also Voluntary Guidance on Implementation of Statewide Voter Registration Lists, 

Election Assistance Comm’n, 70 Fed. Reg. 44593-02, 44594 (Aug. 3, 

2005) (“The chief State election official is the highest ranking State official 

who has, as a primary duty, the responsibility to ensure the lawful administration of voter registration in Federal elections.”). In Mississippi, the Secretary 

of State performs this role. Miss. Code § 23-15-211.1(1). The Secretary is 

charged by state law with establishing the instructions and application form 

for voter registration. Id. §§ 23-15-39(1), 23-15-47(3). Each municipality’s 

clerk, in her capacity as the local registrar of voters, is in turn required to “use 

[the] voter registration applications . . . prescribed by the Secretary of State” 

when registering voters. Id.§ 23-15-35(1).
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The current Mississippi voter registration application form, as 

adopted by the Secretary, states that individuals convicted of certain crimes

in a Mississippi state court are not eligible to register to vote. The form requires an applicant to affirm, on penalty of perjury, that he or she has either 

“never been convicted of voter fraud or any other disenfranchising crime” 

or has had their voting rights restored. The Secretary is also tasked by state 

statute with “implement[ing] and maintain[ing]” an electronic information 

processing system containing a “centralized database of all registered voters 

in the state.” Id. § 23-15-165(1). This system, referred to as the Statewide 

Elections Management System (“SEMS”), is updated by each county’s circuit clerk on a quarterly basis with a list of persons convicted of any disenfranchising crime under Section 241; these persons are then purged from the 

voter rolls in the database. Id. § 23-15-151.

Finally, the Secretary serves on the State Board of Election Commissioners and is responsible in that capacity for training county election commissioners on voter roll maintenance, including the use of SEMS to remove 

disqualified electors from voting rolls. Id. § 23-15-211(4). After an elections

commissioner completes annual training, the Secretary provides the commissioner with a certificate that is required for the commissioner to maintain office. Id. §§ 23-15-211(4)–(5) (providing that election commissioners are required to attend the Secretary’s elections seminars, upon completion of 

which they are to receive a certificate that must be renewed yearly). 

In sum, the Secretary is Mississippi’s “chief election officer” and performs key functions in administering and enforcing state election laws, including by (1) establishing voter registration instructions and application

forms, which state that a person convicted of any disenfranchising crime is

ineligible to vote; (2) administering the SEMS registered voter database; and 

(3) training county election officials through mandatory seminars on their obligation to purge SEMS of ineligible voters and then certifying these officials.
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C. Proceedings Below

In 2018, six permanently disenfranchised Mississippi citizens filed 

this putative class-action lawsuit in federal district court, asserting five federal constitutional challenges to Sections 241 and 253. Plaintiffs, who were 

convicted of various crimes and have completed all terms of their sentences,

sued the Secretary in his official capacity, requesting declaratory and injunctive relief for claimed violations of the First, Eighth, and Fourteenth Amendments of the United States Constitution. Dennis Hopkins, a grandfather and 

founder of a local peewee football team, has been disenfranchised since 1998 

when he was convicted of grand larceny. Herman Parker Jr., a public employee with over a decade of service working for the Vicksburg Housing Authority, is disenfranchised for life because he was convicted of grand larceny

at the age of nineteen. And Byron Demond Coleman lost his right to vote in 

1997 when he was convicted of receiving stolen property after buying some 

refurbished appliances. The district court certified Plaintiffs’ proposed class, 

allowing Plaintiffs to represent persons in the state who have been convicted 

of a Section 241 disenfranchising offense and who have completed all terms 

of their sentences.

Plaintiffs and the Secretary filed cross-motions for summary 

judgment. The Secretary contended that Plaintiffs lacked standing, that their 

suit was barred by sovereign immunity, and that the claims failed on their 

merits. The district court rejected the Secretary’s jurisdictional arguments, 

holding that Plaintiffs had standing to bring each of their claims and that the 

Secretary was amenable to a suit seeking equitable relief under Ex parte 

Young. But, on the merits, the district court granted summary judgment to

the Secretary except as to Plaintiffs’ Section 253 race-based equal protection 

claim. On this latter claim only, the court ruled that “questions of fact” 

remained as to whether Plaintiffs “met their burden” under controlling 

precedent. The court then certified its order for interlocutory appeal.
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The parties filed timely cross-petitions with this court seeking permission to file an interlocutory appeal. This court granted both petitions and consolidated the appeals.

II. Legal Standard

We review an order on summary judgment de novo, applying the same 

standard as applicable to the district court. Castellanos-Contreras v. Decatur 

Hotels, LLC, 622 F.3d 393, 397 (5th Cir. 2010). Summary judgment is appropriate where “the movant shows that there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a).

III. Discussion

On appeal, Plaintiffs argue that: (1) the district court properly held 

that Article III standing was satisfied as to all claims, (2) the Ex parte Young

exception to sovereign immunity allows all claims to be brought against the 

Secretary; (3) Section 241’s lifetime voting ban infringes on the fundamental 

right to vote, is therefore subject to strict scrutiny, and cannot satisfy such

demanding review; (4) Section 241’s lifetime disenfranchisement violates 

the Eighth Amendment’s prohibition on cruel and unusual punishment because it is punitive and contrary to contemporary standards of decency; (5) 

Section 253, the suffrage restoration provision, violates the Equal Protection 

Clause because it authorizes legislators to arbitrarily restore (or not restore)

the right to vote to some citizens rather than others, its enactment in 1890 

was motivated by racial animus, and it disproportionately impacts black Mississippians today; and (6) Section 253 violates the First Amendment because 

legislators are given the power to exercise “unfettered discretion” in 
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determining who can express their constitutionally-protected political views 

by voting.2

In response, the Secretary contends that (1) Plaintiffs lack Article III 

standing and sovereign immunity bars their claims; (2) the Supreme Court’s

decision in Richardson v. Ramirez,which upheld California’s permanent felon 

disenfranchisement scheme against an equal protection challenge, forecloses 

Plaintiffs’ equal protection claim; (3) Section 241 cannot violate the Eighth 

Amendment because Richardson precludes an Eighth Amendment challenge 

to permanent disenfranchisement and because Section 241 does not impose

“punishment” within the meaning of the Eighth Amendment; (4) Section 

253’s discretionary procedures for restoration of the franchise do not violate 

equal protection under Supreme Court precedent because Plaintiffs failed to 

demonstrate that Section 253 was enacted with a discriminatory motive and 

currently has a racially disproportionate impact; and (5) Section 253 does not 

run afoul of the First Amendment because the First Amendment does not 

afford greater protection for voting rights than that already provided by the 

Fourteenth Amendment.

We address these arguments in turn, starting as we must with the 

question of standing.

A. Article III Standing

The district court denied the Secretary’s motion for summary judgment based on lack of standing, concluding that Plaintiffs have standing to 

bring all their claims—the equal protection and Eighth Amendment 

2 Plaintiffs did not offensively petition this Court for permission to appeal the 

question of whether a standardless re-enfranchisement law violates the First Amendment.

Plaintiffs included defensive argument on this issue because it was raised by the Secretary 

in his briefing and in the event it is reached by the Court.
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challenges to Section 241, as well as the equal protection and First Amendment challenges to Section 253.

Article III of the Constitution limits the exercise of federal judicial 

power to “Cases” and “Controversies.” See Spokeo, Inc. v. Robins, 578 U.S. 

330, 337 (2016) (citing U.S. Const. art. III, § 2). The doctrine of standing

“is an essential and unchanging part of the case-or-controversy requirement 

of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

To establish Article III standing, (1) Plaintiffs must have suffered an 

“injury in fact” that is “concrete and particularized” and “actual or imminent”; (2) “the injury has to be fairly traceable to the challenged action of 

the defendant”; and (3) “it must be likely . . . that the injury will be redressed 

by a favorable decision.” Id. at 560–61 (cleaned up). Plaintiffs, as the party 

invoking federal jurisdiction, “bear[] the burden of establishing these elements.” Id. at 561. Furthermore, “‘a plaintiff must demonstrate standing for 

each claim he seeks to press’ and ‘for each form of relief’ that is sought.”

Davis v. Fed. Election Comm’n, 554 U.S. 724, 734 (2008) (quoting DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). We review questions of 

standing de novo. Nat’l Rifle Ass’n of Am., Inc. v. McCraw, 719 F.3d 338, 343 

(5th Cir. 2013).

Considering Plaintiffs’ standing to assert their various challenges to 

each of the provisions at issue, we hold that Plaintiffs have demonstrated 

their standing to pursue their Section 241 claims but not their Section 253 

claims. 

1. Section 241

Plaintiffs challenge the permanent disenfranchisement provision of 

Section 241 on the grounds that it violates the Equal Protection Clause of the 

Fourteenth Amendment and the Eighth Amendment’s prohibition of cruel

and unusual punishment. The district court concluded that the Secretary’s 
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statutory duties managing a statewide computerized election management 

system and his designation as the state’s chief elections officer established

that “Plaintiffs’ injuries are sufficiently traceable to and redressable by” the 

Secretary. The Secretary disagrees, arguing that because he merely provides 

information to local officials who administer elections regarding disqualified 

voters, Plaintiffs’ injuries cannot be traced to nor redressed by him.

The district court disagreed, as do we. Plaintiffs’ injuries stemming 

from Section 241 are fairly traceable to the Secretary. Designated by federal 

law as Mississippi’s chief election officer, the Secretary is tasked with developing mail voter application forms, 52 U.S.C. § 20508(a)(2), and, under Mississippi law, is responsible for establishing the instructions and application 

form for voter registration. See Miss. Code §§ 23-15-39(1), 23-15-47(3).

The current Mississippi voter registration application and form, as established by the Secretary, states that a person convicted of any disenfranchising 

crime in a Mississippi court is ineligible to vote and requires that an applicant 

affirm that they have never been convicted of such a crime on penalty of perjury. Municipal clerks are statutorily required to use an application form evidencing a disenfranchising conviction to deny registration as “prescribed by 

the Secretary.” Id. § 23-15-35(1). 

On this basis alone, Plaintiffs’ injuries are fairly traceable to the Secretary’s actions. By requiring individuals to declare, on penalty of perjury, 

that they have not been convicted of disenfranchising crimes, the voter registration application that the Secretary developed prohibits individuals convicted of disenfranchising crimes from lawfully completing the application 

form that is needed in order to vote. See Tex. Democratic Party v. Abbott, 978 

F.3d 168, 178 (5th Cir. 2020) (Secretary’s duty to design mail-in-ballot sufficient to confer standing on voters denied the right to vote by mail because of 

age).
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But the Secretary’s duties do not end there. The Secretary is also 

tasked with “implementing and maintaining” the SEMS database. Miss. 

Code § 23-15-165(1). SEMS “constitute[s] the official record of registered 

voters in every county of the state,” and therefore plays an essential component in purging from the voter rolls individuals convicted of a disenfranchising crime. Id. For example, SEMS is updated quarterly with a list of individuals convicted of disenfranchising offenses. Id. § 23-15-151. And the Secretary has the statutory responsibility to train local elections officials to use 

SEMS to filter out disenfranchised individuals from the SEMS voter database. Id. § 23-15-211(4). Indeed, local elections commissioners can only be 

certified as such after attending the Secretary’s annual training, in which he 

instructs them to purge the voter rolls. Id. §§ 23-15-211(4)-(5). Though local 

officials may be the ones to ultimately remove ineligible voters from their 

voter rolls, they do so based on an eligibility determination made by the Secretary and in accordance with training from his office. The Secretary’s conduct need not be the proximate cause of a voter’s disenfranchisement in order for the denial of the right to vote to be fairly traceable to him. Bennett v. 

Spear, 520 U.S. 154, 168–69 (1997). When a voter is removed from the voter 

rolls by a local official acting on information and instructions provided by the 

Secretary and in accordance with training from his office, the voter’s injury 

is fairly traceable to the Secretary.

Because of these duties, the Secretary is also in a position to redress 

Plaintiffs’ alleged injuries. Were the Secretary enjoined from enforcing Section 241, as Plaintiffs seek, he could amend Mississippi’s voter registration 

form to allow disenfranchised class members to register, cease entering the 

names of citizens disqualified under Section 241 into SEMS or, alternatively, 

train local election officials to disregard that information in SEMS in maintaining their local voter rolls.
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In sum, “the Secretary of State ha[s] a role in causing the claimed injury and is in a position to redress it at least in part. That is enough to confer 

standing to the voter plaintiffs to sue the Secretary.” Tex. Democratic Party, 

978 F.3d at 178. See also Harness v. Hosemann, 988 F.3d 818, 821 (5th Cir.

2021) (finding standing to sue the Secretary for enforcing Section 241), reh’g 

en banc granted, opinion vacated, 2 F.4th 501 (5th Cir. 2021), and on reh’g en 

banc affirmed sub nom. Harness v. Watson, 47 F.4th 296 (5th Cir. 2022).

2. Section 253

Plaintiffs also challenge Section 253 of Mississippi’s Constitution, 

contending that that provision violates the First Amendment and the Fourteenth Amendment’s Equal Protection Clause. The district court stated that 

the Secretary’s role in Section 253 is “slight,” but nevertheless found that 

Plaintiffs “minimally demonstrated standing” with respect to these claims 

because the Secretary is Mississippi’s “chief election officer and maintains 

SEMS, which would presumably be involved in one of the final steps in returning a convicted felon to the voting rolls after he or she successfully files 

a section 253 petition.” Since the Secretary had “some connection with the 

enforcement of the act,” the district court concluded that Plaintiffs had 

standing to sue.

We observe that Plaintiffs characterize their injury not as the Secretary’s implementation and enforcement of Section 253 but instead as the 

“unconstitutional burden” the provision places on individuals seeking to regain the right to vote through the passage of a suffrage bill. More specifically, 

this burden is having to petition the Legislature for a suffrage bill and then 

navigate the standardless and arbitrary process to pass the bill. This legislative process that Plaintiffs challenge begins and ends without the Secretary’s 

involvement. The Secretary, in his official capacity, does not sponsor, draft, 

debate, vote on, or otherwise officially impact the passage or denial of a 
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suffrage restoration bill under Section 253. True, the Secretary will enforce 

any suffrage bill the Legislature happens to pass. But Plaintiffs’ issue is not 

with the enforcement of any particular suffrage bill or suffrage bills generally, 

but with the Legislature’s caprice in failing to enact them in the first place.

Thus, the injury Plaintiffs complain of—thelegislative process for restoration 

of the franchise—is not fairly traceable to the Secretary but instead is “the 

result of the independent action of some third party not before the court.”

Lujan, 504 U.S. at 560 (cleaned up). Accordingly, although Plaintiffs have 

established standing as to their claims against Section 241, they lack standing 

as to their claims against Section 253.

B. Sovereign Immunity

There is one final jurisdictional matter: Eleventh Amendment sovereign immunity, which the Secretary contends bars Plaintiffs’ challenge to 

Section 241. The Eleventh Amendment generally precludes private suits 

against nonconsenting states in federal court. City of Austin v. Paxton, 943 

F.3d 993, 997 (5th Cir. 2019). Sovereign immunity extends to suits against 

state officials that are, in effect, a suit against a state. Id. (citing Edelman v. 

Jordan, 415 U.S. 651, 663–69 (1974)). However, under the equitable exception to Eleventh Amendment immunity established in Ex parte Young, 209 

U.S. 123, 155–56 (1908), a plaintiff may bring suit for injunctive or declaratory 

relief against a state official, in her official capacity, to “enjoin enforcement 

of a state law that conflicts with federal law.” Air Evac EMS, Inc. v. Tex. Dep’t 

of Ins., 851 F.3d 507, 515 (5th Cir. 2017). Our court has observed that there is 

a “significant[] overlap” between the “Article III standing analysis and Ex 

parte Young analysis.” City of Austin, 943 F.3d at 1002 (quoting Air Evac 

EMS, Inc., 851 F.3d at 520).

Whether the Secretary is subject to suit under the Ex parte Young exceptions first depends upon whether the “complaint alleges an ongoing 
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violation of federal law and seeks relief properly characterized as prospective.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 

(2002). Plaintiffs’ complaint alleges that the enforcement of Section 241 continues to wrongfully deprive them of the franchise in violation of the Eighth 

and Fourteenth Amendments and prays for declaratory and injunctive relief 

to stop the ongoing violation of their rights. Plaintiffs’ complaint thus requests relief that is permissible under Ex parte Young. 

The next inquiry concerns whether the defendant, “by virtue of his 

office, has some connection with the enforcement” of Section 241. Ex parte 

Young, 209 U.S. at 157. Without this requisite connection, the suit “is merely 

making [the state officer] a party as a representative of the state, and thereby 

attempting to make the state a party.” Id. Although “[t]his circuit has not 

spoken with conviction” regarding the precise scope of the connection required under Ex parte Young, a sufficient connection certainly exists when 

there exists a “‘special relationship’ between the state actor and the challenged” provision. Tex. Democratic Party, 978 F.3d at 179 (quoting K.P. v. LeBlanc, 627 F.3d 115, 123 (5th Cir. 2010)). This standard is met here.

As explained in our standing analysis regarding Section 241 supra, the 

Secretary is charged under state law with establishing the instructions and 

application form for voter registration, and the form that the Secretary has 

developed specifically states that persons convicted of disenfranchising offenses are ineligible to vote. Further, state law requires the Secretary to develop and implement SEMS, which is “the official record of registered voters 

in every county of the state,” Miss. Code § 23-15-165(1), and to train local 

elections officials to use SEMS to purge disenfranchised persons from the 

SEMS voter database. Id. § 23-15-211(4). Although local elections officials 

may also play a role in the disenfranchisement process, this does not alter or 

reduce the Secretary’s clear connection to the enforcement of Section 241.
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Because Plaintiffs have standing to pursue their Section 241 claims

and because the Ex parte Young exception to state sovereign immunity applies, we have jurisdiction over Plaintiffs’ appeal. We therefore proceed to 

the merits of their challenges to Section 241. 

C. Equal Protection Challenge to Section 241

Plaintiffs contend that permanent disenfranchisement under Section 

241 of the Mississippi Constitution violates the Equal Protection Clause of 

the Fourteenth Amendment. This claim, Plaintiffs acknowledge, must be 

reconciled with the Supreme Court’s decision in Richardson v. Ramirez. 418 

U.S. 24 (1974). 

In Richardson, former felons who had completed all terms of their 

court-imposed sentences challenged a set of California laws that permanently 

disenfranchised any person convicted of an “infamous crime” unless and until the person obtained a court order or executive pardon that restored the 

franchise. Id. at 26–27. The plaintiffs argued that, when applied to a class of 

felons whose terms of incarceration and parole had expired, California’s permanent disenfranchisement scheme violated the Equal Protection Clause by 

burdening a fundamental right without a compelling state interest. Id. at 27.

In considering the plaintiffs’ claim, the Supreme Court looked not only to 

Section 1 of the Fourteenth Amendment, where the Equal Protection Clause 

is located, but also to the “less familiar” Section 2 of that Amendment. Id. at 

42. Section 2 provides, in relevant part: 

[W]hen the right to vote . . . is denied . . . or in any way abridged, 

except for participation in rebellion, or other crime, the basis of 

[a State’s] representation [in Congress] . . . shall be reduced in 

the proportion which the number of such [disenfranchised] citizens shall bear to whole number of [citizens eligible to vote in 

that state].
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U.S. Const. amend. XIV, § 2. Thus, Section 2 of the Fourteenth Amendment imposes a penalty of reduced congressional representation on states 

that deny or abridge the right to vote for reasons other than “participation in 

rebellion, or other crime.” Id.

The Court ultimately rejected the plaintiffs’ challenge, relying primarily on Section 2. The Court pointed out that the phrase “except for participation in rebellion, or other crime” (the “other crime” exception) exempted states like California that disenfranchised their citizens because of 

felony convictions from the amendment’s sanction of reduced representation. Id. at 55. From this observation, the Court posited that “those who 

framed and adopted the Fourteenth Amendment could not have intended to 

prohibit outright in [the Equal Protection Clause of Section] 1 of that Amendment, that which was expressly exempted from the lesser sanction of reduced 

representation by [Section] 2 of the Amendment.” Id. at 43. In light of the 

“affirmative sanction” for “the exclusion of felons from the vote in [Section]

2 of the Fourteenth Amendment,” the Court held that California laws permanently disenfranchising “convicted felons who have completed their sentences and paroles” did not violate the Equal Protection Clause. Id. at 56.

Under binding Supreme Court precedent, then, state laws that permanently 

disenfranchise convicted felons are not per se unconstitutional on equal protection grounds.3

3 Although we are bound by the Supreme Court’s holding in Richardson, we do not 

contend here that the Richardson majority’s reading of Section 2 is the only plausible 

interpretation of the provision. Justice Marshall, dissenting in Richardson, forcefully argued 

that the disenfranchisement of ex-felons must withstand the requirements of the Equal 

Protection Clause because neither the fact that multiple States “had felon 

disenfranchisement laws at the time of the adoption of the Fourteenth Amendment, nor 

that such disenfranchisement was specifically excepted from the special remedy of [Section 

2], can serve to insulate such disenfranchisement from equal protection scrutiny.”
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Despite Richardson’s holding, Plaintiffs urge that it does not foreclose

their equal protection claim. They advance what they characterize as a novel 

textualist argument that was not raised in Richardson—that Section 2’s 

“other crime” exception to reduced representation applies only when laws 

temporarily “abridge” the right to vote and does not apply when laws, like 

Section 241 of Mississippi’s Constitution, permanently “deny” the franchise.

Plaintiffs thus argue that permanent felon disenfranchisement is not “expressly exempted” from Section 2’s representation penalty, and, therefore, 

Richardson’s determination that the Equal Protection Clause in Section 1 

does not prohibit felon disenfranchisement laws is inapplicable. Id. at 43.

Though Plaintiffs do not expressly ask us to overrule Richardson—a 

power we undoubtedly lack, Ballew v. Cont’l Airlines, Inc., 668 F.3d 777, 782 

(5th Cir. 2012)—their argument calls for us to invalidate on equal protection 

grounds a state law authorizing permanent disenfranchisement of persons 

convicted of certain crimes. But that is precisely the type of law the Richardson Court expressly upheld against an equal protection attack. The California 

laws the Richardson plaintiffs challenged were not temporarily abridging disenfranchisement laws, but permanent ones like the Mississippi law challenged here. See Richardson, 418 U.S. at 27–28 (“At the time respondents 

were refused registration” . . . the California Constitution provided that no 

person convicted of an infamous crime “shall ever exercise the privileges of 

an elector in this State.”) (emphasis added). Richardson, therefore, applied 

Section 2’s “other crime” exception to permanent disenfranchisement.

Whether the Supreme Court majority thought California’s permanent disenfranchisement was a “denial” of the right to vote or an “abridgment” is 

Richardson, 418 U.S. at 74, 77 (Marshall, J., dissenting, joined by Brennan, J.) (concluding 

that Section 2 “was not intended and should not be construed to be a limitation on the other 

sections of the Fourteenth Amendment”).
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immaterial. The Court clearly was of the opinion that California’s constitutional and statutory scheme—which permanently disenfranchised individuals convicted of “infamous crimes”—fell within the “other crime” exception found in Section 2 of the Fourteenth Amendment. See id. at 54–55. The 

Court thus necessarily rejected an argument that the “other crime” exception applied only to temporary disenfranchisement.

In sum, as an “inferior court,” U.S. Const. art. III, § 1, we are 

bound by the Supreme Court’s decision in Richardson, see Ballew, 668 F.3d at 

782, and therefore must conclude that Section 241 of Mississippi’s Constitution does not violate the Equal Protection Clause by burdening this fundamental right.

4 The district court thus correctly granted summary judgment 

to the Secretary on this claim.

4 Plaintiffs cite to several cases to support their contention that “[e]ven if the Richardson Court had assumed that the ‘other crime’ exception modifies the words ‘is denied’ 

as well as the phrase ‘or in any way abridged,’ the Supreme Court’s unstated assumption 

does not foreclose consideration of this question.” We find this argument unavailing. The 

cases cited by Plaintiffs stand for the proposition that legal questions neither raised before 

nor considered by a prior court do not constitute binding precedent. See, e.g., Cooper Indus., 

Inc. v. Aviall Servs., Inc., 543 U.S. 157, 170 (2004) (refusing to rely on dictum in another 

case to resolve the plaintiff’s alternative argument, which was not briefed by the plaintiff 

and which would have required the court to decide a question that was “a significant issue 

in its own right”); Webster v. Fall, 266 U.S. 507, 511 (1925) (explaining in a case where an 

indispensable party was not joined or added as a litigant that earlier decisions in which the 

Court reached the merits of a dispute despite the absence of an arguably necessary party 

could not serve as binding precedent on the requirement of such a party’s presence because 

that issue had not been “suggested or decided” in the earlier cases); Brecht v. Abrahamson, 

507 US. 619, 631 (1993) (in considering whether the harmless-error standard of review applied in federal habeas cases, the Supreme Court reasoned that even though it was applied 

in such a manner in the past, its application “had never squarely addressed the issue,” and 

therefore was “free to address [that] issue on the merits”). In the instant case, the legal 

question of whether state laws providing for permanent disenfranchisement of convicted 

felons violate equal protection has already been squarely passed upon by the Supreme 

Court. See Richardson, 418 U.S. at 24.
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D. Eighth Amendment Challenge to Section 241

Plaintiffs contend that permanent disenfranchisement by Section 241 

is cruel and unusual punishment that violates the Eighth Amendment.

Section 241 disenfranchisement begins upon a person’s conviction of a 

Section 241 offense and continues for the rest of his life. The Eighth 

Amendment provides: “Excessive bail shall not be required, nor excessive 

fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const. 

amend. VIII. “To determine whether a punishment is cruel and unusual, 

courts must look beyond historical conceptions to ‘the evolving standards of 

decency that mark the progress of a maturing society’ . . . ‘The standard itself 

remains the same, but its applicability must change as the basic mores of 

society change.’” Graham v. Florida, 560 U.S. 48, 58 (2010) (first quoting

Estelle v. Gamble, 429 U.S. 97, 102 (1976); then quoting Kennedy v. Louisiana, 

554 U.S. 407, 418 (2008)). The district court failed to apply this standard to 

Section 241, concluding in error that Section 2 of the Fourteenth 

Amendment placed the practice of permanent felon disenfranchisement 

Plaintiffs also point to the Ninth Circuit’s treatment of felon disenfranchisement

in Harvey v. Brewer, 605 F.3d 1067 (9th Cir. 2010), in which the plaintiffs challenged an 

Arizona statute that permanently disenfranchised convicted felons. The plaintiffs sought 

to “escap[e] Richardson’s long shadow” by contending that the “other crime” exception 

in Section 2 “only permit[ted] disenfranchisement for common-law felonies” and did not 

apply to statutory felonies. Id. at 1071, 1073–74 (9th Cir. 2010) (O’Connor, J., sitting by 

designation). The Ninth Circuit acknowledged that the plaintiffs’ proposed reading of 

Section 2 was “in extreme tension with Richardson” given that the Supreme Court upheld 

a permanent felon disenfranchisement scheme without evincing any “concern with

whether any particular felony was one recognized at common law.” Id. at 1074, 1078

(quoting Richardson, 418 U.S. at 56). Nevertheless, since neither the Ninth Circuit nor the 

Supreme Court “ha[d] directly addressed this precise question”—the types of crimes 

within the ambit of Section 2’s “other crime” exception—the court considered (and 

rejected) the merits of plaintiffs’ argument. Id. at 1074. By contrast, Plaintiffs here ask this 

court to adopt a construction of Section 2 that is not merely in tension with Richardson but 

instead directly conflicts with that decision’s holding. That we cannot do.
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beyond the reach of the Eighth Amendment. We reverse the district court’s 

entry of summary judgment for the Secretary. For the reasons hereinafter 

assigned, we instead render judgment for the plaintiffs declaring that 

permanent disenfranchisement inflicted by Section 241 of Article XII of the 

Mississippi Constitution is cruel and unusual punishment in violation of the 

Eighth Amendment.

1. Richardson Applied Only Equal Protection Precepts and Therefore

Does Not Foreclose Plaintiffs’ Eighth Amendment Claim

Before engaging in the Eighth Amendment analysis, we point out that

the district court erred by omitting entirely to perform that assessment in the 

present case. Relying on the Supreme Court’s decision in Richardson, the 

district court concluded that Plaintiffs’ Eighth Amendment claim failed 

because it would be “internally inconsistent for the Eighth Amendment to 

prohibit criminal disenfranchisement while § 2 of the Fourteenth 

Amendment permits it.” Harness v. Hosemann, No. 3:17-CV-791, 2019 WL 

8113392, at *11 (S.D. Miss. Aug. 7, 2019). That was error. Richardson held 

only that permanent disenfranchisement did not violate the Equal Protection 

Clause of the Fourteenth Amendment by burdening a fundamental right 

without adequate justification. The Court did not consider or decide whether 

a permanent ban on felons’ voting after they completely served their 

sentences violates the Eighth Amendment’s prohibition on cruel and unusual 

punishment.

The Supreme Court has “rejected the view that the applicability of

one constitutional amendment pre-empts the guarantees of another . . . The

proper question is not which Amendment controls but whether either

Amendment is violated.” United States v. James Daniel Good Real Prop., 510 

U.S. 43, 49–50 (1993). Though Richardson contemplated that felon 

disenfranchisement was implicitly authorized by Section 2 of the Fourteenth 
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Amendment, “provisions that grant Congress or the States specific power to 

legislate in certain areas . . . are always subject to the limitation that they must 

not be exercised in a way that violates other specific provisions of the 

Constitution.” Williams v. Rhodes, 393 U.S. 23, 29 (1968); see also Soldal v.

Cook Cnty., Ill., 506 U.S. 56, 70 (1992) (“Certain wrongs affect more than a

single right and, accordingly, can implicate more than one of the

Constitution’s commands.”). Indeed, this fundamental principle of 

constitutional construction has been applied by the Supreme Court in 

circumstances squarely analogous to the case at bar. In Hunter v. Underwood,

471 U.S. 222, 227–29 (1985), the Court held that a provision of Alabama’s 

Constitution that disenfranchised persons convicted of crimes “involving 

moral turpitude” violated the Equal Protection Clause in Section 1 of the 

Fourteenth Amendment because of the provision’s racially discriminatory

origins and impact. The Court explained that, despite the “implicit 

authorization of § 2 [of the Fourteenth Amendment] to deny the vote to 

citizens for ‘participation in rebellion, or other crime,’” Section 2 did not 

“permit . . . purposeful racial discrimination” that “violates § 1 of the 

Fourteenth Amendment.” Id. at 233 (internal citation omitted). “[W]e are 

confident that § 2 was not designed to permit the purposeful racial 

discrimination . . . which otherwise violates § 1 of the Fourteenth 

Amendment,” the Court explained. Id. “Nothing in our opinion in 

Richardson v. Ramirez, supra, suggests the contrary.” Id.

Further, there is no reason to think the Eighth Amendment’s 

protections may, for some special reason, be nullified by the Constitution’s 

countenancing a particular type of punishment. Courts, including ours, have 

recognized that the Eighth Amendment constrains states’ power to impose 

“cruel and unusual” conditions of involuntary servitude on prisoners, 

despite the fact that the Thirteenth Amendment “specifically allows 

involuntary servitude as punishment after conviction of a crime.” Murray v. 
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Miss. Dep’t of Corr., 911 F.2d 1167, 1168 (5th Cir. 1990). Although the 

Thirteenth Amendment may authorize the state to impose work obligations 

on prisoners, “there are circumstances in which prison work requirements 

can constitute cruel and unusual punishment” in violation of the Eighth 

Amendment. Ray v. Mabry, 556 F.2d 881, 882 (8th Cir. 1977) (holding that 

prisoner stated an Eighth Amendment claim when he alleged that he was 

forced to work “90 to 120 hours per week;” “that he cannot do the hard labor 

assigned to him because he is physically disabled;” and “that he is constantly 

cursed and threatened by prison supervisors”); see also Williams v. Henagan, 

595 F.3d 610, 622 n.18 (5th Cir. 2010) (“Prison work conditions may 

however, amount to cruel and unusual punishment.”).

The district court erred in concluding that Section 2 of the Fourteenth 

Amendment’s implicit authorization of permanent disenfranchisement 

settles all constitutional questions about the practice. Fundamental tenets of 

constitutional jurisprudence and on-point Supreme Court precedent makes

clear that Section 2 does not override all other constitutional protections.

Although the Fourteenth Amendment has been interpreted to implicitly 

authorize felon disenfranchisement, disenfranchisement schemes 

established under this authority must still be consonant with other 

constitutional commands, including those embodied in the Eighth 

Amendment. The protections to individual liberty and dignity afforded by 

each provision of the Constitution do not evaporate when one provision 

permits states to legislate in a certain field. “Obviously we must reject the 

notion that [Section 2], gives the States power to impose burdens on the right 

to vote, where such burdens are expressly prohibited in other constitutional 

provisions.” Rhodes, 393 U.S. at 29.

Furthermore, Richardson only addressed an equal protection 

challenge to permanent disenfranchisement. It did not examine or rule upon

an Eighth Amendment claim, as the present case requires. Whether a 
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punishment is “cruel and unusual” within the meaning of the Eighth 

Amendment requires ascertaining society’s “evolving standards of 

decency,” which, in turn, are determined by “evidence of contemporary 

values.” Graham, 560 U.S. at 58, 62. Neither Richardson, which was decided 

nearly half a century ago, nor the 19th century history of Section 2 that the 

opinion recounted appear obviously relevant to the “evolving standards of 

decency” of today that the Eighth Amendment embodies. Id. at 58. We 

therefore see no way in which Section 2, as interpreted by Richardson, 

precludes an Eighth Amendment challenge to permanent criminal 

disenfranchisement today. 

Our dissenting colleague contends that Richardson forecloses nearly 

all constitutional challenges to felon disenfranchisement. The argument 

goes: Because the Eighth Amendment’s protection from cruel and unusual 

punishment is incorporated against the states through the Due Process 

Clause in Section One of the Fourteenth Amendment, and because 

Richardson held that California’s permanent felon disenfranchisement did 

not violate Section One’s Equal Protection Clause (a different clause than 

the Due Process Clause in Section One), Mississippi’s law cannot violate the 

Eighth Amendment through Section One’s Due Process Clause. One need 

not do more than restate the dissent’s argument to demonstrate its lack of 

merit. As an initial matter, Richardson decided an Equal Protection challenge 

to permanent felon disenfranchisement, not a challenge based on a 

substantive right incorporated through the Due Process Clause. Richardson’s 

reading of how the Equal Protection Clause in Section One is limited by the 

representation reduction mechanism in Section Two says nothing about 

narrowing the scope of substantive rights incorporated through the Due 

Process Clause. The Supreme Court has made clear that the substantive 

rights contained in the Bill of Rights—including those of the Eighth 

Amendment—are not diluted or somehow lesser in content by virtue of their 
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being incorporated through the Fourteenth Amendment. To the contrary, 

“incorporated Bill of Rights protections ‘are all to be enforced against the 

States under the Fourteenth Amendment according to the same standards 

that protect those personal rights against federal encroachment.’” McDonald 

v. City of Chicago, 561 U.S. 742, 765 (2010) (quoting Malloy v. Hogan, 378 

U.S. 1, 10 (1964)); see also Timbs v. Indiana, 139 S. Ct. 682, 687 (2019) 

(“Thus, if a Bill of Rights protection is incorporated, there is no daylight 

between the federal and state conduct it prohibits or requires.”); Kennedy v. 

Louisiana, 554 U.S. 407, 419 (2008) (applying the Eighth Amendment 

through the Fourteenth by looking to the “norms that currently prevail,” not 

“the standards that prevailed when the Eighth Amendment was adopted in 

1791”). The dissent’s novel theory of constitutional law is unsupportable.

The dissent’s citations to generic canons of statutory interpretation 

are also meritless. The dissent argues that we allow the Eighth Amendment’s 

“general” prohibition on cruel and unusual punishment to override Section 

Two’s “specific” authorization of felon disenfranchisement as punishment. 

As an initial matter, we do not adopt the dissent’s characterization of the 

Eighth Amendment as a “general” provision that must yield to the implicit 

authorization of felon disenfranchisement in Section 2 of the Fourteenth 

Amendment. Were that true, then no constitutional challenge to a state’s 

felon disenfranchisement law would be possible, a result that is plainly 

incompatible with the Supreme Court’s decision in Hunter. The dissent 

acknowledges that constitutional grants of power to legislate in a certain area 

“are always subject to the limitation that they may not be exercised in a way 

that violates other specific provisions of the Constitution.” Post at 57

(quoting Williams v. Rhodes, 393 U.S. 23, 29 (1968)). Our reading employs 

this canon of constitutional interpretation. It is the interpretive method that 

the Supreme Court has expressly instructed the lower courts to follow. And 

it is the one the Court has applied to an analogous question of whether felon 
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disenfranchisement may violate a substantive constitutional right. The 

answer to that question is clear: a state’s felon disenfranchisement law may 

violate the Constitution, Section Two notwithstanding. See Hunter, 471 U.S. 

at 233.

We consider, then, whether Mississippi’s permanent 

disenfranchisement scheme is supportable today under the Eighth 

Amendment.

2. Permanent Disenfranchisement Under Section 241 is Punishment

As is self-evident from its text, the Eighth Amendment’s Cruel and 

Unusual Punishment Clause applies only to punishments. The threshold 

Eighth Amendment issue therefore is whether Section 241 constitutes a 

punishment or, instead, a non-punitive regulation of the electoral franchise.

Our court has adopted “an intents-effects test” to help determine 

whether a statute constitutes punishment under various constitutional 

provisions, including the Eighth Amendment. Does 1-7 v. Abbott, 945 F.3d 

307, 314 (5th Cir. 2019). Under this test, “[i]f the intention of the legislature 

was to impose punishment, that ends the inquiry[.]” Id. (quoting Smith v.

Doe, 538 U.S. 84, 92 (2003)). In reviewing the legal context in which the

Mississippi Constitutional Convention of 1890 enacted Section 241, we find 

strong evidence that the body’s intent was to establish a punitive law,

punishing and disenfranchising the targeted convicts without any legitimate

penological goals.

As one of the “fundamental conditions” of Mississippi’s reentry to

the Union following the Civil War, Congress forbade “the constitution of

Mississippi” from ever being “amended or changed [so] as to deprive any

citizen or class of citizens of the United States of the right to vote . . . except

as a punishment for such crimes as are now felonies at common law, whereof
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they shall have been duly convicted.” Act of February 23, 1870, ch. 19, 16

Stat. 67 (“Readmission Act”) (emphasis added). This condition on

readmission, also imposed on other formerly Confederate states, was meant

to address the nefarious tactics to restrict black suffrage already emerging in

the Southern states despite the Fifteenth Amendment’s recent passage. See

Oregon v. Mitchell, 400 U.S. 112, 167 n.18 (1970). Under the plain language of

the Readmission Act, Mississippi may only alter its constitution to authorize

disenfranchisement if it does so as a punishment for a common law felony

offense. This fundamental condition on Mississippi’s power to enact a

disenfranchisement scheme cannot be ignored: “the manner of [Section

241’s] codification . . . [is] probative of the legislature’s intent.” Smith, 538

U.S. at 94. Therefore, Section 241 of Mississippi’s 1890 Constitution—a 

post-Readmission Act felon disenfranchisement provision—must be 

construed as a punitive measure for felony convictions in order for the 

provision to comply with binding federal law. See Jones v. Governor of Fla., 

950 F.3d 795, 819 (11th Cir. 2020) (concluding that “[d]isenfranchisement is 

punishment,” based in part on the fact that “the Readmission Act of Florida 

authorized felon disenfranchisement only as punishment.”) (emphasis in 

original).5

5 The dissent points out that the Eleventh Circuit reached a contrary conclusion in 

a different case, one involving whether an amendment to Alabama’s voter 

disenfranchisement law was retroactive punishment that violated the Ex Post Facto clause. 

Post at 62 (discussing Thompson v. Alabama, 65 F.4th 1288, 1300 (11th Cir. 2023). True, the 

Eleventh Circuit did conclude that Alabama’s new law—ratified by the state’s voters in 

1996—did not constitute punishment. Id. at 1303–1308. But, contrary to the dissent’s 

claim, the Eleventh Circuit did not reach this conclusion despite the terms of the 

Readmission Act. The court never once mentioned the Readmission Act, let alone analyzed 

whether Alabama’s modern law was punitive in light of the limitations the Readmission 

Act placed on the state’s ability to disenfranchise its citizens. This case provides no support 

for the dissent’s decision to ignore the plain terms of Mississippi’s Readmission Act. 
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Though there is historical evidence that some members of the 1890

Mississippi Constitutional Convention viewed the Mississippi Readmission 

Act generally as an unconstitutional intrusion into Mississippi’s power to 

regulate elections,6there is no evidence that the Convention viewed the

Act’s limitation of disenfranchisement to cases of criminal punishment as 

invalid. More importantly, to conclude that Section 241 was not intended to 

impose punishment would require us to also conclude that Mississippi has 

been, and continues to be, in violation of the Readmission Act. Such a 

dramatic holding is not only unwarranted given the complete lack of evidence 

that Section 241 was intended to contravene the Readmission Act, but it 

would also expose Mississippi to broad liability for this violation. See Williams 

ex rel. J.E. v. Reeves, 954 F.3d 729, 739 (5th Cir. 2020) (allowing a claim that 

Mississippi violated the education provisions of the Readmission Act to 

proceed). Faced with the choice between reading Section 241 to comply with 

applicable federal law or reading it to violate the Readmission Act, we should 

“choose the interpretation . . . that has a chance of avoiding federal 

Indeed, as the Thompson court itself noted, “disenfranchisement can be penal or 

nonpenal.” Id. at 1303. “Accordingly, courts must determine the legislative intent behind 

the felon disenfranchisement statute or constitutional provision under consideration before 

holding that it is penal or nonpenal for constitutional purposes.” Id. And here in this case, 

we have strong evidence of intent that the Eleventh Circuit never considered—the plain 

text of Mississippi’s Readmission Act which prohibits disenfranchisement “except as a

punishment for such crimes as are now felonies at common law.” It is no wonder the cases 

reach different conclusions.

6 The Convention’s Judiciary Committee produced a report implying that the

“fundamental conditions” of readmission that the Act purported to impose on the State

exceeded Congress’s constitutional powers. Proceedings of the 

Constitutional Convention at 83-87; see also William Alexander Mabry, 

Disenfranchisement of the Negro in Mississippi Vol 4. No. 3 Journal of Southern 

History 318, 325 (1938). Notably, this report concluded that franchise regulations like 

poll taxes and residency requirements were permitted under the Readmission Act. It was 

silent on the Act’s limitation of felon disenfranchisement to punishment.
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preemption.” Planned Parenthood of Houston and Se. Tex. v. Sanchez, 403 F.3d 

324, 342 (5th Cir. 2005).

7

Neither the Secretary nor the dissent seriously engage with Plaintiffs’ 

argument that the Readmission Act determines Section 241’s purpose. The 

Secretary asserts that Plaintiffs’ reliance on the Readmission Act to 

determine the Convention’s intent is “self-defeating” and “illogical” 

because the Act permits disenfranchisement as punishment, and therefore 

ultimately undermines Plaintiffs’ Eighth Amendment claim—an argument 

the dissent echoes. This argument attacks the wrong part of the analysis,

failing to address the threshold question: whether Section 241’s 

disenfranchisement inflicts a punishment in the first place. As to that 

question, the Readmission Act’s authorization of disenfranchisement as 

punishment that the Secretary relies on supports Plaintiffs’ position that the 

law is punishment. The Secretary and dissent also argue that the plain text of 

Section 241’s criminal disenfranchisement provisions evinces no intention to 

punish and appears alongside nonpunitive regulations like age, competency, 

and residency requirements. We are unconvinced, however, that the 

disenfranchisement provisions’ mere placement alongside regulatory 

franchise provisions is strong evidence that the former were not intended as 

punishment. “The location and labels of a statutory provision do not by 

themselves transform a [criminal] remedy into a [civil] one.” Smith, 538 U.S. 

at 94 (2003); see also Babbitt v. Sweet Home Chapter of Communities for a Great 

Oregon, 515 U.S. 687, 702 (1995) (legislators can intend one provision of a law 

7 The dissent wishes to ignore the Readmission Act, declaring that the question 

whether Mississippi would violate the Act by passing non-punitive disenfranchisement 

regulations “is not before us.” Post at 62. With respect, we fail to see how the dissent’s 

conclusion—that Mississippi’s disenfranchisement scheme is not punitive—would not 

immediately raise the question (and likely answer it) of whether the state had violated the 

terms of its readmission.
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to have “a character of its own not to be submerged by its association” with 

neighboring provisions). Finally, the Secretary argues in a footnote that 

reading the Readmission Act to impose limits on Mississippi’s power to 

disenfranchise—to read the Act to mean what it says—would violate the 

principle of “equal sovereignty,” citing to Shelby County v. Holder, 570 U.S. 

529 (2013). Shelby County, though, held no such thing. It expressly 

recognized that Congress “may draft” a law imposing burdens and 

limitations on some states and not others, and held merely that the method 

by which the Voting Rights Act did so was no longer justified given political 

and social changes since its formulation. 570 U.S. at 557.

We think that Section 241 must be read in light of the explicit

requirements of the Readmission Act that Mississippi may only

disenfranchise persons as punishment for conviction of a common lawfelony.

Considered in this light, there is clear proof that Section 241 was intended as

punishment—indeed, there can be no other permissible intention under the

Readmission Act.

3. Section 241 Violates Society’s Evolving Standards of Decency

Having determined that Section 241 inflicts punishment, our next task

is to determine whether its permanent denial of the franchise for conviction

of an enumerated crime is “cruel and unusual” punishment underthe Eighth

Amendment as applied to Plaintiffs and their class. That is, we must decide

whether this practice is in accord with “the evolving standards of decency

that mark the progress of a maturing society.” Graham, 560 U.S. at 58. In

undertaking this inquiry, we first consider whether “there is a national

consensus” against the challenged punishment. Id. at 61. The Supreme

Court has instructed that this determination “should be informed by

objective factors to the maximum possible extent.” Atkins v. Virginia, 536

U.S. 304, 312 (2002) (internal quotation marks omitted). The “clearest and
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most reliable objective evidence of contemporary values is the legislation

enacted by the country’s legislatures.” Id. (internal quotation marks

omitted); see also Graham, 560 U.S. at 61 (“The Court first considers

objective indicia of society’s standards, as expressed in legislative

enactments and state practice, to determine whether there is a national

consensus against the . . . practice at issue.”) (internal quotation marks

omitted). These benchmarks, however, are not completely dispositive of the

matter. “[T]he Constitution contemplates that in the end our own judgment

will be brought to bear on the question of the acceptability of [Mississippi’s

voter disenfranchisement scheme] under the Eighth Amendment.” Coker v.

Georgia, 433 U.S. 584, 597 (1977); see also Graham, 560 U.S. at 61 (same).

8

8

In Graham v. Florida, the Supreme Court explained that the two-step analysis 

outlined above applies when a “case implicates a particular type of [punishment] as it 

applies to an entire class of offenders who have committed a range of crimes.” 560 U.S. at 

61. The Court uses this “categorical approach” in order to craft “categorical rules to define 

Eighth Amendment standards.” Id. at 60, 62. By contrast, in cases where the Court 

considers “a gross proportionality challenge to a particular defendant’s sentence,” its 

analysis “begin[s] by comparing the gravity of the offense and the severity of the sentence.”

Id. at 60. In this case, it is not a particular defendant’s sentence but rather a punishment 

“itself [that] is in question.” Id. at 61. In other words, this case involves a “particular type 

of [punishment]”—permanent disenfranchisement—“as it applies to an entire class of 

offenders who have committed a range of crimes”—felons convicted of Section 241 

disenfranchising offenses who have completed all terms of their court-imposed sentences.

Id. Accordingly, and in light of the fact that no party suggests otherwise, we follow the 

Court’s categorical approach to assessing this claim. Id.

The dissent argues that the categorical approach is inapplicable because the 

Supreme Court hasso far only applied that analysis to sentences of death and of life without 

parole. That is true, but all it proves is that this case presents a res nova question. Having 

concluded that Section 241 exacts a punishment, we must ascertain whether that 

punishment exceeds the limits of the Eighth Amendment. As discussed above, the 

Supreme Court has instructed that, when examining the constitutionality of a particular 

practice of punishment applied to a range of offenses, rather than a specific defendant’s 

sentence, courts should employ the categorical approach. Graham, 560 U.S. at 60–61. Such 

is the inquiry here, and so we follow the Supreme Court’s instruction. The dissent offers 
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i. National Consensus Against Permanent Disenfranchisement as a 

Punishment for Offenders Who Have Completed Their Sentences

To assess whether there is a “national consensus” against the

challenged punishment, we consider “objective indicia of society’s

standards” as embodied in legislation, including not only the aggregate

number of jurisdictions rejecting the punishment but also any consistent

legislative trends in that direction. Graham, 560 U.S. at 62.

Turning first to legislation, an exhaustive review of state laws shows

that the overwhelming majority of states oppose the punishment of

permanently disenfranchising felons who have completed all terms of their

sentences. Currently, thirty-five states and the District of Columbia do not

permanently disenfranchise felons. See Appendix infra. And four otherstates

only permit permanent disenfranchisement for corrupt practices in elections

or governance. Id. For example, Maryland permanently disenfranchises

felons convicted for buying or selling votes, while Missouri does so only as a

result of a conviction for an offense “connected with right of suffrage.” Md.

Code, Elec. Law § 3-102(b); Mo. Rev. Stat. § 115.133.2. Mississippi

is one of only eleven states that still permanently disenfranchises felons for

offenses otherthan those pertaining to elections. Put another way, thirty-nine

states plus the District of Columbia do not impose lifetime

disenfranchisement as a punishment for offenses unrelated to protecting the

honest administration of elections.

Significantly, the Supreme Court has found a national consensus

against a punishment when far fewer states than here opposed it. For

no alternative other than to forgo the Eighth Amendment analysis completely. That we 

cannot do. “The Judiciary has the duty of implementing the constitutional safeguards that 

protect individual rights.” Trop v. Dulles, 356 U.S. 86, 103 (1958).
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example, in Atkins v. Virginia, the Court determined that a “national

consensus ha[d] developed against” executing the “mentally retarded”9

when thirty states had legislatively proscribed the practice. 536 U.S. at 321,

326 (holding that executing members of this class of offenders is cruel and

unusual). And the same number of states, thirty, had opposed the death

penalty for juvenile offenders—either by “express provision [in legislation]

orjudicial interpretation”—when theCourt held that practice to be cruel and

unusual. See Roper v. Virginia, 543 U.S. 551, 564 (2005). Indeed, that only

eleven states authorize the punishment challenged here closely resemblesthe

statistics considered in Enmund v. Florida, in which the Court emphasized

that the fact that only eight jurisdictions authorized the death penalty for

participation in a robbery during which an accomplice commits murder

“weigh[ed] on the side of rejecting capital punishment” for that offense. 458

U.S. 782, 793 (1982); see also Kennedy v. Louisiana, 554 U.S. 407, 426 as

modified (Oct. 1, 2008) (holding that capital punishment for the crime of child 

rape violates the Eighth Amendment and observing that, “[t]hough our

review of national consensus is not confined to tallying the number of States

with applicable death penalty legislation, it is of significance that, in 45

jurisdictions, petitioner could not be executed for child rape of any kind”).

A national consensus that a punishment is cruel and unusual may be 

further evidenced by a clear and consistent trend in state legislatures to 

abandon the punishment, particularly in response to a court decision 

upholding the punishment’s validity. Roper, 543 U.S. 566–67 (explaining

that, besidesthe sheer number ofstatesrejecting a practice, the “consistency

of the direction of change” is a significant factor in determining whether

9 The contemporary preferred terminology for such persons is people with 

intellectual or cognitive disabilities. See Hall v. Florida, 572 U.S. 701, 704 (2014).
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there is a national consensus against a practice). In Penry v. Lynaugh, for

example, the Court held that the execution of the “mentally retarded” did

not violate the Eighth Amendment. 492 U.S. 302, 334 (1989). The Court

reasoned that the laws of sixteen states and the federal government10

precluding the execution of this vulnerable class of persons were insufficient

to show a national consensus against this practice. Id. at 334. Thirteen years

after Penry, the Court revisited that decision in Atkins. Again, the Court

considered whether a national consensus existed against capital punishment

forthe “mentally retarded,” thistime focusing primarily on the development

of any consistent trends since Penry opposing this practice. What “was

significant,” the Court explained, was “not so much the [total] number of

these States” that had acted since Penry to ban executing members of this

class of offenders—sixteen had done so—“but the consistency of the

direction of change.” Atkins, 536 U.S. at 315. As the Court succinctly put it,

“[m]uch ha[d] changed since” Penry, and, indeed, “a national consensus

ha[d] developed” against the challenged practice in response to the earlier

decision. Id. at 314, 316.

Similarly, in Roper, which struck down the juvenile death penalty, the

Court stressed the consistency of the direction of change in rejecting that

practice. 543 U.S. at 568. Though only five states had abandoned juvenile

executions in the fifteen years since the Supreme Court upheld the

punishment in Stanford v. Kentucky, 492 U.S. 361, 370–71 (1989), the Roper

Court followed Atkins’s admonition that what matters under the Eighth

Amendment is “not so much” the absolute number of states that have

abandoned a particular practice or the pace of that abandonment, but instead

10 Only two states and the federal government specifically prohibited executing the 

cognitively disabled, while fourteen other states prohibited the death penalty categorically. 

Penry, 492 U.S. at 334.
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the “consistency of the direction of change.” Id. at 566. Thus, the shift in

state laws between Stanford and Roper, though smaller in number, was

nonetheless “significant” because, as in Atkins, “the same consistency of

direction of change ha[d] been demonstrated.” Id. at 565, 566.

With regard to lifetime felon disenfranchisement, at the time the

Supreme Court decided Richardson in 1974, twenty-seven states permitted

the practice as applied to felons whose offenses were unrelated to elections

or good governance and who had completed all terms of their sentences. See

Appendix. Currently, only eleven do. Since Richardson, sixteen states have

stopped the practice of imposing lifetime disenfranchisement on felons who

have served theirsentencesfor offenses unrelated to elections or governance.

See Appendix. That is the exact number of states that changed their laws to

reject the execution of the “mentally retarded” between Penry and Atkins.

And it is more than threefold the total number of states that abolished the

juvenile death penalty in the timespan between Stanford and Roper. The

evidence clearly demonstrates “consistency [in] the direction of change,”

and a repudiation of permanent felon disenfranchisement. Roper, 543 U.S. at

566 (quoting Atkins, 536 U.S. at 315); see also Amicus Brief of the District of

Columbia, et al., Community Success Initiative v. Moore, No. 331PA21 at 4–9

(N.C. Aug. 17, 2022) (discussing the “clear and growing consensus among

states” against permanent disenfranchisement). That a trend in abandoning

a punishment has proven so durable and long-lasting demonstrates that

society has truly turned away from that punishment. In this way, the steady

rejection of permanent felon disenfranchisement over nearly half a century is

as much, or even more, consistent than the change in the punishment laws

considered in Atkins and Roper.

In sum, the objective barometers of society’s standards—namely, the

rejection of permanent felon disenfranchisement for offenses unrelated to

elections and good governance by a clear majority of states and the
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consistency in the trend toward abolition of the practice—provide sufficient

evidence of a national consensus against punishing felons by permanently

barring them from the ballot box even when they have completed all terms of

their sentences.

The Secretary counters that there can be no national consensus

against permanent felon disenfranchisement because many states

disenfranchise felons for some period of time, such as during their period of

incarceration or until completion of parole or probation. It is true that almost

all states disqualify felons from voting at least while they are incarcerated or

under supervision, Maine and Vermont being the exceptions. The dissent

makes the same argument, asserting that there can be no national consensus

when the states disenfranchise felonsin such diverse ways. But this case does

not concern the validity of temporary felon disenfranchisement laws, or the

disenfranchisement of the incarcerated, or any other particular mode of

disenfranchisement not contained in Section 241. In the present case, we are

concerned solely with Mississippi’s practice of punishing felons who have

completed all terms of their sentences by permanently disenfranchising them

for life. And objective evidence makes clear that a supermajority of states

reject this practice.

The Secretary also emphasizes that Section 241 only permanently

disenfranchises for the categories of felonies enumerated therein and that

therefore individuals who commit felonies not included under Section 241

are not disqualified from voting. But, having already determined that the state

permanently disenfranchises as punishment, see supra part III.D.2, the fact

that the state chooses not to exact this punishment against all felons is

immaterial to our current analysis of whether a national consensus against

this punishment exists. We need not, as the Secretary apparently invites us

to do, go felony-by-felony, asking whether there is a national consensus

against permanent disenfranchisement as a punishment for each specific
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felony offense.11 Rather, the objective indicia of society’s standards

demonstrate that a consensus exists against meting out this sanction as a

punishment, and the Secretary’s arguments to the contrary are unavailing.

Based on the evidence before us, we conclude that our society has set its face

against permanent disenfranchisement as a punishment.

ii. Independent Judicial Determination that Section 241 is Cruel and 

Unusual

We must next “determine, in the exercise of our own independent

judgment, whether [permanent disenfranchisement under Section 241] is a

disproportionate punishment for” those Mississippians who have completed

their sentences but remain permanently disenfranchised. Roper, 543 U.S. at

564. This assessment requires usto consider “the severity of the punishment

in question,” “the culpability of the offenders at issue in light of their crimes

and characteristics,” and “whether the challenged . . . practice serves

legitimate penological goals.” Graham, 560 U.S. at 67.

Before undertaking this inquiry, we emphasize that the issue here is 

not, of course, whether the offenses listed in Section 241 warrant criminal 

sanction. Rather, the question is whether punishing an individual who has 

served the terms of his sentence by forever withholding from him the right to 

11 If we were to accept the invitation to investigate Mississippi’s 

disenfranchisement scheme felony-by-felony, it would not stand the state in good stead. 

Section 241 lists a fraction of the hundreds of crimes on Mississippi’s books. That means 

that Mississippi citizens who are convicted of non-Section 241 offenses are not 

disenfranchised for life. Consequently, the Mississippi felons who remain permanently 

disenfranchised after serving all of their sentences are subjected to an especially cruel and 

unusual punishment as compared to Mississippi felons not convicted of Section 241 crimes 

and felons in states that do not engage in permanent disenfranchisement. And the Secretary 

has presented no evidence that any penological or other goals are furthered or justified by 

permanently disenfranchising only the felons convicted of the crimes encompassed in 

Section 241’s list.
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vote constitutes cruel and unusual punishment under the Supreme Court’s 

precedents and our own reasoning. And to determine whether this 

punishment is proportional to Plaintiffs’ offenses, it is first necessary to 

assess the importance of the right that Plaintiffs are denied. See Atkins, 563 

U.S. at 311 (“It is a precept of justice that punishment for crime should be 

graduated and proportioned to the offense.”) (cleaned up) (quoting Weems 

v. United States, 217 U.S. 349, 367 (1910)).

In a democracy, the right to vote is a “fundamental political right” 

because it is “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 

370 (1886); see also Burson v. Freeman, 504 U.S. 191, 198 (1992) (plurality 

opinion) (observing that the right to vote is “a right at the heart of our 

democracy”). “No right is more precious in a free country” than the right to 

vote. Reynolds v. Sims, 377 U.S. 533, 560 (1964). “Other rights, even the most 

basic, are illusory if the right to vote is undermined.” Id. “A citizen without 

a vote is to a large extent one without a voice in decisions which may 

profoundly affect him and his family.” Rosario v. Rockefeller, 410 U.S. 752, 

764 (1973) (Powell, J., dissenting).

The Supreme Court’s soaring language on the right to vote makes 

clear two fundamental and interrelated points: (1) voting is the lifeblood of 

our democracy and (2) the deprivation of the right to vote saps citizens of 

their essential right to have a say in how and by whom they are governed.

Permanent denial of the franchise, then, is an exceptionally severe penalty, 

constituting nothing short of the denial of the democratic core of American 

citizenship. It is an especially cruel penalty as applied to those whom the 

justice system has already deemed to have completed all terms of their 

sentences. These individuals, despite having satisfied their debt to society, 

are precluded from ever fully participating in civic life. Indeed, they are 

excluded from the most essential feature and expression of citizenship in a 

democracy—voting.
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Turning to the culpability of Plaintiffs’ class, we observe that Section 

241’s punishment applies equally to all members of the class, regardless of 

their underlying crime or the class member’s individual mental state during 

the commission of the crime. Section 241 disenfranchises murderers and 

timber thieves alike; it does not distinguish between mature adults and 

juveniles, accomplices, or the intellectually disabled—the latter three being

classes of persons the Supreme Court has recognized as categorically less 

culpable. Roper, 543 U.S. at 570; Enmund, 458 U.S. at 800–801; Atkins, 536 

U.S. at 317–18. It is clear, then, that Section 241 does not reflect society’s 

measured response to a felon’s moral guilt. Rather, as the provision’s odious 

origins make clear, Section 241’s infliction of disenfranchisement on only 

certain offenders has nothing to do with their heightened culpability.

Next, we consider whether the punishment of permanent 

disenfranchisement advances any legitimate penological goals. Graham, 560 

U.S. at 68. A punishment that “lack[s] any legitimate penological

justification is by its nature disproportionate to the offense.” Id. at 71. The 

traditional justifications for punishment are incapacitation, rehabilitation, 

deterrence, and retribution. Id. at 71–74.

Taking these in turn, incapacitation cannot support Section 241’s 

punishment because it does not incapacitate a convict from committing 

crimes; it only prevents him from voting. While felon disenfranchisement 

could potentially prevent recidivism if it were applied specifically to those 

convicted of voting-related offenses, Section 241, as discussed, applies to 

broad categories that are unrelated to elections crimes. And as to these 

categories of crimes, Section 241 does nothing to thwart a former felon from 

reoffending. Rather, the only conduct it incapacitates is voting. Further, 

there is evidence that disenfranchisement may actually increase recidivism. 

One comparative study found that “individuals who are released in states 

that permanently disenfranchise are roughly nineteen percent more likely to 
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be rearrested than those released in states that restore the franchise postrelease.” Guy Padraic Hamilton-Smith & Matt Vogel, The Violence of 

Voicelessness: The Impact of Felony Disenfranchisement on Recidivism, 22 

Berkeley La Raza L.J. 407, 426 (2012).

Section 241 does not further the goal of rehabilitation. Lifetime 

disenfranchisement does not contribute to reforming an offender. Quite to 

the contrary, it hinders reintegration into society by denying voting, a 

cherished marker and right of citizenship. See Reynolds, 377 U.S. at 560. The 

Secretary has not argued otherwise, claiming that felon disenfranchisement’s 

precise purpose is to exclude a former felon from participation in this aspect 

of our society. There is “no more certain way in which to make a man in 

whom, perhaps, rest the seeds of serious antisocial behavior more likely to 

pursue further a career of unlawful activity than to place on him the stigma 

of the derelict, uncertain of many of his basic rights.” Trop v. Dulles, 356 U.S. 

86, 111 (1958) (Brennan, J. concurring). This exclusion is not rehabilitative.

If anything, it can only reinforce the stigma that the disenfranchised are 

“beyond redemption.” Pamela S. Karlan, Convictions and Doubts: 

Retribution, Representation, and the Debate over Felon Disenfranchisement, 56 

Stan. L. Rev. 1147, 1166 (2004); see also Alec C. Ewald, “Civil Death”: 

The Ideological Paradox of Criminal Disenfranchisement Law in the United 

States, 2002 Wis. L. Rev. 1045, 1112–16 (2002) (discussing the republican 

case against disenfranchisement as anti-rehabilitative).

For its part, deterrence only works if an individual is aware that a 

particular punishment attends a particular offense. It is questionable—and 

we have been presented with no evidence to suggest otherwise—to what 

extent Mississippians, and specifically those who would consider committing 

a crime covered by Section 241, are aware they could permanently lose the 

right to vote by virtue of a conviction. Moreover, it is unclear—and again we 

have been presented with no evidence that makes it clear—what marginal 
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deterrent effect the prospect of losing the franchise has when a person 

committing a felony already faces the more immediate sanction of criminal 

confinement. Similarly, there is no reason to believe that the punishment of 

disenfranchisement will deter recidivism because the felon who has lost the 

franchise under Section 241 has lost it forever, regardless of his future 

conduct.

That leaves retribution. While this is a “legitimate reason to punish,” 

Graham, 560 U.S. at 71, “the severity of the appropriate punishment 

necessarily depends on the culpability of the offender[.]” Atkins, 536 U.S. at 

319. We have explained that the continuing—indeed, unending—

punishment Section 241 inflicts is wholly unrelated to the moral culpability 

of the diverse class of felons it applies to. Moreover, because the sentences 

imposed on Plaintiffs are necessarily ones that are capable of being 

completed, the criminal justice system has implicitly determined that 

Plaintiffs who served their sentences are capable of being returned to a 

position within society. And the fact that Plaintiffs have actually completed 

all terms of their sentences means that they merit being restored to their basic 

rights as citizens. To permanently remove from them the most precious right 

of citizenship is thus disproportionate to their offenses and cannot stand as a 

permissible exercise of retribution. See Roper, 543 U.S. at 564; Reynolds, 377 

U.S. at 561.

For those adjudicated to have committed a crime enumerated in 

Section 241 and whose judicially imposed sentence has been completed, the 

provision tacks on an exceptionally severe penalty—one that is 

unconstitutional as to all it ensnares. Our nation has a tradition of fixing

punishment to meet the crime. After a sentence is complete, the individual is

said to have paid his debt to society. While some disabilities may attach to a

felony conviction that persist beyond the criminal sentence, in a democracy,

to deny the right to vote is to render one without a say in the manifold ways
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the government touches his life. That Mississippi denies this most precious

right permanently, despite the felon’s sentence having been served, is

disproportionate and inconsistent with the consensus against permanent

disenfranchisement among state legislatures. The punishment of permanent

disenfranchisement also contravenes the Eighth Amendment’s

proportionality principle because it lacks a nexus with any legitimate

penological justification. See Miller, 567 U.S. 460, 489 (2012); Graham, 560

U.S. at 71. Thus, insofar as it applies to those who have fulfilled all terms of

their sentences, Section 241 is proscribed by the Eighth Amendment’s

advancing standards of decency under the Constitution.

VII. Conclusion

“No right is more precious in a free country” than the right to vote.

Wesberry v. Sanders, 376 U.S. 1, 17 (1964). “Other rights, even the most basic,

are illusory if the right to vote is undermined.” Id. This right is not only

fundamental to the democratic ordering of our society, it is also expressive of

the dignity of American citizenship—that each person is an equal participant

in charting our nation’s course. Reynolds, 377 U.S. at 533; Bush v. Gore, 531

U.S. 98, 104 (2000) (“[O]ne source of [the right to vote’s] fundamental

nature lies in the equal weight accorded to each vote and the equal dignity

owed to each voter.”).

Mississippi denies this precious right to a large class of its citizens,

automatically, mechanically, and with no thought given to whether it is

proportionate as punishment for an amorphous and partial list of crimes. In

so excluding former offenders from a basic aspect of democratic life, often

long after their sentences have been served, Mississippi inflicts a

disproportionate punishment that has been rejected by a majority of the

states and, in the independent judgment of this court informed by our

precedents, is at odds with society’s evolving standards of decency. Section
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241 therefore exacts a cruel and unusual punishment on Plaintiffs.

Accordingly, we REVERSE the district court’s grant of summary judgment

to the Secretary on Plaintiffs’ Eighth Amendment claim and RENDER

judgment for Plaintiffs on that claim. The case is REMANDED 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.

APPENDIX

States with permanent criminal disenfranchisement penalties

1974 2000 2020

Alabama Alabama Alabama

Alaska Arizona Arizona

Arizona California Delaware

Arkansas Delaware Florida

California Florida Iowa

Connecticut Iowa Kentucky

Florida* Kentucky Maryland*

Georgia Maryland Massachusetts*

Idaho Massachusetts* Mississippi

Iowa Mississippi Missouri*

Kentucky Missouri Nebraska

Louisiana Nebraska New Jersey*

Maryland* New Hampshire Tennessee

Massachusetts* New Jersey* Virginia

Mississippi New Mexico Wyoming 
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Missouri New York

Nebraska Ohio*

Nevada Tennessee

New Hampshire Virginia

New Jersey* Washington

New Mexico Wyoming 

New York

North Dakota

Oklahoma

Rhode Island

South Carolina

Tennessee

Texas

Utah*

Virginia

Washington

Wyoming 

* Permanent disenfranchisement for election-related offenses only.

States with permanent disenfranchisement penalties (with citations)

1974 2000 2020

State Citation State Citation State Citation

Alabama Ala. Const. 

art. VIII, §

182; Ala. 

Code tit. 17 §

15 (1958)

Alabama Ala. Const. 

art. VIII sec. 

177 (see also 

Amendment 

579 (1996)); 

Ala. Code. 

Alabama Ala. Const. 

art. VIII § 

177; Ala. 

Code. § 15-

22-36.1.
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17-3-10 

(2000)

Alaska Ak. Const. 

art. V § 2; 

Ak. Code §

15.05.030 

(1960)

Arizona Ariz. Const. 

art. 7 sec. 2; 

Ariz. Stat. 

13-905, 13-

909-12 

(2000)

Arizona Ariz. Rev. 

Stat. § 13-

908(A); 

Ariz. Rev. 

Stat. 13-

907(A)

Arizona Ariz. Const. 

art. 7 § 2; 

Ariz. Rev. 

Stat. § 16-

101(5)

California Cal. Const. 

art. 2 sec. 4; 

Cal. Penal 

Code 

4852.01, 

4852.17, 

4853 (2000)

Delaware Del. Const. 

art. 5 sec. 2

Arkansas Ark. Const. 

art. 3 § 6 

(1947)

Delaware Del. Const. 

art. 5 sec. 2, 

7; 15 Del. 

Code sec. 

1701, 5104 

(2000)

Florida Fla. Const. 

art. VI, § 4; 

Fla. Stat. § 

944.292(1); 

Fla. Const. 

art. IV, § 8 

(a), (c)

California Cal. Const. 

art. 2 § 3 

(1972); Elec. 

Code §§ 310, 

321, 383, 

389, 390; 

Ramirez v. 

Brown, 507 

P.2d 1345, 

1347 (Cal. 

1973)

Florida Fla. Stat. 

97.041, 

944.292, 

944.293; 

Fla. Const. 

art. 6 sec. 4 

(2000)

Iowa Iowa Const. 

art. 2 sec. 5

Connecticut

Conn. Rev. 

Stat. 9-46 

(1973)

Iowa Iowa Const. 

art. 2 sec. 5; 

Iowa Code 

sec. 48A.6 

(2000)

Kentucky Ky. Const. 

sec. 145
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48

Florida* Fla. Const. 

art. VI §. 4 

(1973); Fla. 

Code 

97.041(5)

Kentucky Ky. Const. 

sec. 145; Ky. 

Stat. 

116.025 

(2000)

Maryland*

Md. Elec. 

Code sec 3-

102

Georgia Ga. Const. 

art. II § 2-

701 (1945)

Maryland Md. Const. 

art. 1 sec. 4; 

Md. Code 

art. 33, sec. 

3-102 

(2000)

Massachusetts*

Ma. Const. 

art 3; Ma. 

Gen. L. 51 

sec. 1

Idaho Idaho Const. 

art. 6 § 3 

(1947); 

Idaho Code 

34-402 

(1949)

Massachusetts*

Ma. Const. 

art 3; Ma. 

Gen. L. 51 

sec. 1 (2000)

Mississippi

Miss. Const. 

art. XII § 

241

Iowa Iowa Const. 

art. 2 § 2

Mississippi

Miss. Const. 

sec. 241; 

Miss Code 

23-5-35 

(1972)

Missouri* Mo. Rev. 

Stat. § 

115.133.2

Kentucky Ky. Const. 

art. 145 

(1955)

Missouri Mo. Stat. 

115.113 

(2000)

Nebraska Neb. Rev. 

Stat. § 29-

112; § 32-

313

Louisiana La. Const. 

art. 8 § 6 

(1968)

Nebraska Neb. Stat. 

32-313 

(2000); 

Ways v. 

Shively, 264 

Neb. 250 

(2002)

New Jersey*

N.J. Stat. 

19:4-1

Maryland*

Md. Const. 

art. I § 2 

(1972); Md. 

Code. Art. 

33 ¶ 3-4 

(1974)

New 

Hampshire

N.H. Const. 

Pt. 1 art. 11 

(2000)

Tennessee

Tenn. Code 

Ann. § 40-

29-204

Massachusetts*

Mass. Gen. 

Laws chp. 51 

§ 1 (1972)

New Jersey*

N.J. Stat. 

19:4-1 

(2000)

Virginia Va. Const. 

art. II, § 1; 

art. V, § 12.
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49

Mississippi

Miss. Const. 

§ 241; Miss 

Code 23-5-35 

(1972)

New 

Mexico

N.M. Stat. 

sec. 31-13-1 

(2000)

Wyoming W.S. Ann. 

6-10-106; 

W.S. 7-13-

105(a), (b); 

Wyo. Const. 

art. 4, § 5.

Missouri Mo. Rev. 

Stat. 

111.021 

(1969)

New York N.Y. Const. 

art. 2 sec. 3; 

N.Y. Code 

5-106 

(2000)

Nebraska Neb. Const. 

art. VI § 2; 

Neb. Rev. 

Stat. 29-

112, 29-113 

(1974)

Ohio* Ohio Stat. 

2961.01, 

3599.39 

(2000)

Nevada Nev. Const. 

art. 2 § 1; 

Nev. Rev. 

Stat. 

213.090, 

213.155

Tennessee

Tenn. Code 

40-29-105 

(2000)

New 

Hampshire

N.H. Const. 

art. 11 

(1970); 

N.H. Rev. 

Stat. 607-A2 (1974)

Virginia Va. Const. 

art. 2 sec. 1; 

Va. Code 

53.1-231.2 

(2000)

New Jersey*

N.J. Rev. 

Stat. 19:4-1 

(1971)

Washington

Wash. 

Const. art. 6 

sec. 3; RCW 

9.94A.637 

(2000); 

Madison v. 

State, 161 

Wash. 2d 85 

(2007).

New 

Mexico

N.M. Const. 

art. VII § 1 

(1973)

Wyoming Wyo. 6-10-

106; 7-13-

105 (2000)
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50

New York N.Y. Elec. 

Law 152 

(1964)

North Dakota

N.D. Const. 

art. V § 127 

(1960)

Oklahoma Okla. Const. 

art. III § 1 

(1974)

Rhode Island

R.I. Const. 

art. Am. 

XXXVIII 

(1973)

South 

Carolina

S.C. Const. 

art. 2 sec. 7; 

S.C. Code 

23-62 (1962, 

1975 Supp)

Tennessee

Tenn. Const. 

art. 4 sec. 2 ; 

Tenn. Code 

2-205 

(1971);

Texas Tex. Const. 

art. 16 sec. 

2; Tex. Rev. 

Stat. art. 

5.01 (1967)

Utah* Utah Const. 

art. IV sec. 8 

(1971)

Virginia Va. Const. 

art. II sec. 2; 

Va. Code 

24.1-42 

(1973)

Washington

Wash. 

Const. art. 6 

sec. 3 (1974);
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Wyoming Wyo. Const. 

art. 6 sec. 6 

(1957); Wyo. 

Stat. 6-4 

(1957); Wyo. 

Stat. 7-311 

(1957)

* Permanent disenfranchisement for election-related offenses only.
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Edith H. Jones, Circuit Judge, dissenting:

The panel decision holds that Section 241 of the Mississippi Constitution, recently upheld in this court against another challenge,1 now fails the 

test of Eighth Amendment scrutiny, incorporated by the Fourteenth Amendment Due Process Clause. Because the majority never fully quotes the relevant provision, I begin with text, which states that a mentally competent inhabitant of Mississippi:

who is a citizen of the United States of America, eighteen 

(18) years old and upward, who has been a resident of this state 

for one (1) year, and for one (1) year in the county in which he 

offers to vote, and for six (6) months in the election precinct or 

in the incorporated city or town in which he offers to vote, and 

who is duly registered as provided in this article, and who has 

never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, 

embezzlement or bigamy, is declared to be a qualified elector.

MISS.CONST. Art. 12, § 241.

Laws like this one have faced many unsuccessful constitutional challenges in the past. When the Supreme Court ruled that the Equal Protection 

Clause does not bar states from permanently disenfranchising felons, it dispensed some advice to the losing parties:

We would by no means discount these arguments if addressed 

to the legislative forum which may properly weigh and balance 

them. . . . But it is not for us to choose one set of values over 

the other. If respondents are correct, and the view which they 

advocate is indeed the more enlightened and sensible one, presumably the people . . . will ultimately come around to that 

1 Harness v. Watson, 47 F.4th 296, 311 (5th Cir. 2022) (en banc), cert. denied, 143 S. 

Ct. 2426 (2023).
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view. And if they do not do so, their failure is some evidence, 

at least, of the fact that there are two sides to the argument.

Richardson v. Ramirez, 418 U.S. 24, 55, 94 S. Ct. 2655, 2671 (1974). In other 

words: go and convince the state legislatures. Do the hard work of persuading 

your fellow citizens that the law should change.

Today, the court turns that advice on its head. No need to change the 

law through a laborious political process. The court will do it for you, so long 

as you rely on the Due Process Clause, rather than the Equal Protection Clause. 

With respect, this is not a road that the Constitution—or precedent—allows 

us to travel. I dissent.2

I.

Section One of the Fourteenth Amendment guarantees “due process” and “equal protection of the laws.” U.S. CONST. amend. XIV § 1. 

After a long process of exegesis, it is settled that the Due Process Clause incorporates much of the Bill of Rights, and state governments must respect 

protections like the Eighth Amendment’s prohibition of cruel and unusual 

punishment. See McDonald v. City of Chicago, 561 U.S. 742, 763, 130 S. Ct. 

3020, 3034 (2010).

Section Two of the Fourteenth Amendment is less familiar but more 

specific. It reduces the number of representatives in Congress to which a 

state is entitled if that state disenfranchises any of its male, non-Indian citizens over the age of 21. But there is a single exception: states may not be 

penalized for disenfranchising a citizen “for participation in rebellion, or other 

crime.” U.S. CONST. amend. XIV § 2 (emphasis added). The carve-out 

2 To be precise, I do not quarrel with the holding that Plaintiffs have standing to 

challenge Section 241 of the state constitution but not Section 253. And like the majority, 

I need not separately address the plaintiffs’ First Amendment claim, which is inextricably 

bound with my conclusions regarding the Eighth Amendment.
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reflects a long tradition in this country, and before that, in British law, and 

before that, in the Western world.3 This tradition can be summed up in 

Lockean terms: if a person breaks the laws, he has forfeited the right to participate in making them. See Green v. Bd. of Elections of N.Y.C., 380 F.2d 445, 

451 (2d Cir. 1967) (Friendly, J.).

Despite Section Two’s explicit allowance of felon disenfranchisement, plaintiffs alleged in Richardson that California’s felon disenfranchisement law violated Section One’s Equal Protection Clause. The Supreme 

Court rejected the argument as it held that the specific language in Section 

Two casts light on the generalities of Section One. 418 U.S. at 43, 94 S. Ct. 

at 2665 (finding persuasive the petitioner’s argument that “those who 

framed and adopted the Fourteenth Amendment could not have intended to 

prohibit outright in [Section One] of that Amendment that which was expressly exempted from the lesser sanction of reduced representation imposed 

by [Section Two] of the Amendment.”).

The plaintiffs in today’s case differ from those in Richardson in only 

one way: they allege that Mississippi’s felon disenfranchisement law violates 

Section One’s Due Process Clause. Their reasoning, and the majority’s 

holding, relies on three propositions. One is the undisputed rule that the Due 

Process Clause incorporates the Eighth Amendment’s prohibition against 

cruel and unusual punishments. But the other two propositions are false. 

Contrary to the majority, Richardson’s ruling extends beyond the Equal Protection context, and felon disenfranchisement is not a cruel and unusual punishment. I address each faulty proposition in turn.

3 For a brief summary of that tradition, see George Brooks, Felon

Disenfranchisement: Law, History, Policy, and Politics, 32 FORDHAM URB. L.J. 851, 852-61 

(2005).
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II.

To begin with, Richardson v. Ramirez controls this case. Its holding 

did not rest on which part of Section One was invoked by the plaintiffs, but 

“on the demonstrably sound proposition that [Section One], in dealing with 

voting rights as it does, could not have been meant to bar outright a form of 

disenfranchisement which was expressly exempted from the less drastic 

sanction of reduced representation which [Section Two] imposed for other 

forms of disenfranchisement.” Id. at 55, 2671. This is far from the only language in the opinion that has applicability beyond the Equal Protection 

Clause. See Richardson, 418 U.S. at 43, 94 S. Ct. at 2665 (“[T]hose who 

framed and adopted the Fourteenth Amendment could not have intended to 

prohibit outright in [Section One] . . . that which was expressly exempted 

from . . . [Section Two] of the Amendment.”); id. at 54, 2670 (relying on the 

“settled historical and judicial understanding of the Fourteenth Amendment’s 

effect on state laws disenfranchising convicted felons”) (emphasis added); id. 

at 55, 2671 (urging would-be reformers to petition the state legislatures rather 

than the courts); id. at 48, 2668 (focusing “on the understanding of those 

who framed and ratified the Fourteenth Amendment” as a whole). On this 

logic, it is irrelevant what clause of Section One is cited by plaintiffs. None 

of its provisions can be understood to bar what Section Two plainly allows.

It changes nothing that plaintiffs rely on Eighth Amendment precedent. That precedent is made applicable to Mississippi via the Due Process 

Clause. Robinson v. California, 370 U.S. 660, 667, 82 S. Ct. 1417, 1421 (1962). 

Therefore, the Eighth Amendment right asserted by plaintiffs cannot exceed 

the scope of the Due Process Clause.

Even if the Eighth Amendment right were considered on its own 

terms, Richardson’s reading of Section Two must still guide our interpretation of its scope. As interpreters of the Constitution, judges must seek “a fair 

construction of the whole instrument.” McCulloch v. Maryland, 17 U.S. (4 
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Wheat.) 316, 406 (1819). All of its provisions “should be interpreted in a way 

that renders them compatible, not contradictory.” ANTONIN SCALIA &

BRYAN A.GARNER,READING LAW:THE INTERPRETATION OF LEGAL TEXTS

180 (2012) (“READING LAW”). Yet the majority’s interpretation renders the 

Section Two proviso meaningless. It is useless for the Fourteenth Amendment to authorize felon disenfranchisement if the practice is made illegal by 

the Eighth. The canon against surplusage warns us against such unnatural 

readings. Id. at 174.

Thus, the Cruel and Unusual Punishments Clause should not be understood to prohibit what “the explicit language of the Constitution affirmatively acknowledges” elsewhere as legitimate. Furman v. Georgia, 408 U.S. 

238, 380, 92 S. Ct. 2726, 2799 (1972) (Burger, C.J., dissenting); see also Gregg 

v. Georgia, 428 U.S. 153, 177, 96 S. Ct. 2909, 2927 (1976) (approving capital 

punishment under certain circumstances). Cf. Lassiter v. Northampton Cnty. 

Bd. of Elections, 360 U.S. 45, 51, 79 S. Ct. 985, 990 (1959) (stating that a 

“criminal record” is one of the “factors which a State may take into consideration in determining the qualifications of voters.”); Romer v. Evans, 

517 U.S. 620, 634, 116 S. Ct. 1620, 1628 (1996) (“that a convicted felon may 

be denied the right to vote . . . is” an “unexceptionable” proposition). Following this rule, this court and others have concluded without reservation 

that “a state has the power to disenfranchise persons convicted of a felony,” 

even permanently. Shepherd v. Trevino, 575 F.2d 1110, 1112 (5th Cir. 1978).4

4 See also Jones v. Governor of Fla., 950 F.3d 795, 801 (11th Cir. 2020) (“Regardless 

of the political trend toward re-enfranchisement, there is nothing unconstitutional about 

disenfranchising felons—even all felons, even for life.” (citing Richardson, 418 U.S. at 56)); 

Hayden v. Pataki, 449 F.3d 305, 316 (2d Cir. 2006) (“The Supreme Court has ruled that, 

as a result of th[e] language of [Section 2], felon disenfranchisement provisions are 

presumptively constitutional.”).
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It is true that “provisions that grant Congress or the States specific 

power to legislate in certain areas . . . are always subject to the limitation that 

they may not be exercised in a way that violates other specific provisions of 

the Constitution.” Williams v. Rhodes, 393 U.S. 23, 29, 8 S. Ct. 5, 9 (1968). 

For example, a state may not disenfranchise felons with racially discriminatory intent. Hunter v. Underwood, 471 U.S. 222, 233, 105 S. Ct. 1916, 1922 

(1985).5 Likewise, as the majority recognizes, the Thirteenth Amendment 

bars involuntary servitude “except as a punishment for crime.” U.S.CONST.

amend. XIII. Nevertheless, certain involuntary work requirements imposed 

on convicted criminals may violate the Cruel and Unusual Punishments 

Clause. Williams v. Henagan, 595 F.3d 610, 622 n. 18 (5th Cir. 2010).

But that principle places a “limitation” on the “exercise” of a legitimate power; it cannot void the power entirely. Williams, 393 U.S. at 29, 

89 S. Ct. at 9. Today’s ruling goes far beyond Hunter’s holding that felon 

disenfranchisement must be exercised in accord with the Constitution. The 

majority concludes that the “punishment of permanent disenfranchisement” is entirely unconstitutional. This unjustifiably creates an internal conflict in the Constitution by holding that the Eighth Amendment preempts

Section Two of the Fourteenth Amendment.

Moreover, even if this court found a conflict between the Eighth 

Amendment and Section Two of the Fourteenth—which, to restate emphatically, it should not have done—the established canons of interpretation dictate that Section Two should be given effect. It is both more specific and later 

in time than the Eighth Amendment. If “there is a conflict between a general 

5 To clarify a point for confused readers: this is not an issue in today’s case. Sitting 

en banc, this court has already held that the current version of Section 241 was not enacted 

with discriminatory intent—a finding the majority neglects to mention in its long and 

irrelevant discussion of Mississippi’s sordid constitutional history. See Harness, 47 F.4th 

at 311.
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provision and a specific provision, the specific provision prevails.” READING 

LAW at 183. “While the implication of a later enactment will rarely be strong 

enough to repeal a prior provision, it will often change the meaning that 

would otherwise be given to an earlier provision that is ambiguous.” Id. at 

330. And a “provision that flatly contradicts an earlier-enacted provision repeals it.” Id. at 327.

Careening past all these standard interpretive guardrails, the majority 

circumvents Richardson, while purporting not to abrogate it, based on the 

“evolving standards of decency.” Trop v. Dulles, 356 U.S. 86, 101, 78 S. Ct. 

590, 598 (1958). I am unaware of any case, ever, in which a lower federal 

court has declared a Supreme Court decision overtaken by subsequent 

events—without being quickly overruled. At the time Richardson was issued, 

no one would have construed the Eighth Amendment to prevent felon disenfranchisement. Indeed, in Richardson, the Court cited “settled historical and 

judicial understanding.” 418 U.S. at 54, 94 S. Ct. at 2670 The Court cited 

three of its decisions stretching back to the end of the nineteenth century that 

approvingly referenced felon disenfranchisement, and the Court twice affirmed three-judge court rulings in 1968 and 1973 that rejected challenges to 

such laws. See id. at 53–54, 2670. It is not for this court to say this wealth of 

authority has become outmoded. See Agostini v. Felton, 521 U.S. 203, 207, 

117 S. Ct. 1997 (1997) (“The Court neither acknowledges nor holds that other 

courts should ever conclude that its more recent cases have, by implication, 

overruled an earlier precedent. Rather, lower courts should follow the case 

which directly controls, leaving to this Court the prerogative of overruling its 

own decisions.”).

III.

Even if Richardson had never been decided, the majority opinion 

would still be inconsistent with precedent and the meaning of the Eighth 
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Amendment. Felon disenfranchisement is neither cruel, nor unusual, nor a 

punishment. 

A.

First, the majority incorrectly concludes that Mississippi’s felon disenfranchisement law is a “punishment” for Eighth Amendment purposes. 

The majority correctly recites the two-part test for determining whether 

something is a “punishment” under the meaning of the Constitution. See 

Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 1147 (2003). Courts initially 

ascertain whether “the intention of the legislature was to impose punishment.” Smith, 538 U.S. at 92, 123 S. Ct. at 1147. If so, “that ends the inquiry.” Id. “If, however, the intention was to enact a regulatory scheme that 

is civil and nonpunitive, we must further examine whether the statutory 

scheme is so punitive either in purpose or effect as to negate [the State’s] 

intention to deem it ‘civil.’” Id. (quotation marks omitted).

The majority neglects, however, to mention that the Supreme Court 

has already signaled that felon disenfranchisement is not a punishment. In 

Trop v. Dulles, the plurality wrote the following:

A person who commits a bank robbery, for instance, loses his 

right to liberty and often his right to vote. If, in the exercise of 

the power to protect banks, both sanctions were imposed for 

the purpose of punishing bank robbers, the statutes authorizing 

both disabilities would be penal. But because the purpose of the 

latter statute is to designate a reasonable ground of eligibility for 

voting, this law is sustained as a nonpenal exercise of the power to 

regulate the franchise.

356 U.S. at 96–97, 78 S. Ct. at 596 (emphasis added).6 On the strength of this 

language, three other circuits have categorically held that felon 

6 The Trop Court was ruling in the context of the Ex Post Facto Clause. But 

because we assume the Constitution uses the word “punishment” consistently, the test for 
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disenfranchisement is nonpenal.7 Only the Eleventh Circuit has departed 

from this categorical holding. Thompson v. Alabama, 65 F.4th 1288, 1304 

(11th Cir. 2023) (charging the other circuits with “a misreading of Trop.”). I 

am inclined to agree with the majority of circuits that Trop assumes disenfranchisement cannot be punishment. But even the Eleventh Circuit’s reasoning cannot offer comfort to the majority. That court still concluded after 

applying the relevant test that Alabama’s disenfranchisement law, which has 

a history and structure very similar to that of Mississippi’s, was nonpenal. Id. 

at 1308.

Considering the text and structure of Section 241 demonstrates that it 

was not intended as a penal measure. The majority gives short shrift to these 

considerations, which ought to have been its primary focus. Doe, 538 U.S. at 

92, 123 S. Ct. at 1147. To reiterate its language, this constitutional provision 

states that a mentally capable person:

who is a citizen of the United States of America, eighteen (18) 

years old and upward, who has been a resident of this state for 

one (1) year, and for one (1) year in the county in which he offers to vote, and for six (6) months in the election precinct or 

in the incorporated city or town in which he offers to vote, and 

who is duly registered as provided in this article, and who has 

identifying constitutional “punishments” is the same for the Ex Post Facto Clause, the 

Eighth Amendment, and the Double Jeopardy Clause. Does 1-7 v. Abbott, 945 F.3d 307, 313 

(5th Cir. 2019).

7 Simmons v. Galvin, 575 F.3d 24, 43 (1st Cir. 2009) (“The Supreme Court has 

stated that felon disenfranchisement provisions are considered regulatory rather than 

punitive.”); Johnson v. Bredesen, 624 F.3d 742, 753 (6th Cir. 2010) (“Moreover, in Trop v. 

Dulles, the Supreme Court expressly stated that felon disenfranchisement laws serve a 

regulatory, non-penal purpose. Accordingly, as a matter of federal law, disenfranchisement 

statutes do not violate the Ex Post Facto Clause of the U.S. Constitution.”); Green, 380 

F.2d at 450 (“Depriving convicted felons of the franchise is not a punishment but rather is 

a ‘nonpenal exercise of the power to regulate the franchise.’” (quoting Trop, 356 U.S. at 

97, 78 S. Ct. at 596)).
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never been convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, 

embezzlement or bigamy, is declared to be a qualified elector.

MISS. CONST. Art. 12, § 241. This provision does not so much as hint at a 

punitive intent toward felons any more than it implies an intent to punish 

non-citizens, short-term residents of Mississippi, those unregistered to vote, 

or those under the age of eighteen. It does not even single out felons for disqualification from the franchise—it merely defines the franchise in such a 

way as to exclude them from its bounds.8 Moreover, Section 241 is part of 

the Mississippi Constitution’s Article 12, which outlines the procedures for 

elections, not the punishment of criminals. By its own terms, Section 241 is 

a nonpenal exercise of Mississippi’s regulatory authority over the franchise.

The majority opinion attempts to shift focus by pointing to language 

from the Readmission Act. That act barred Mississippi from depriving “any 

citizen or class of citizens” of the right to vote “except as a punishment.” 

Act of February 23, 1870, ch. 19, 16 STAT. 67. The majority opinion worries 

that, if this court does not classify disenfranchisement as punishment, it 

would call into question whether Mississippi was properly readmitted to the 

Union, because Mississippi would therefore be depriving a class of citizens 

of the right to vote for a reason other than punishment. Hence, the majority 

concludes, any felon disenfranchisement that occurs in Mississippi is per se 

punitive for Eighth Amendment purposes.

8 Compare Mississippi’s Section 241 with a portion of the Alabama Constitution 

recently upheld as a nonpenal regulation of the franchise: “No person convicted of a felony 

involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until 

restoration of civil and political rights or removal of disability.” ALA. CONST. Art. VIII, 

§ 177. The Eleventh Circuit found this text sufficient to indicate “a preference that 

[Alabama’s] felon disenfranchisement provision be considered civil instead of criminal.” 

Thompson, 65 F.4th at 1305.
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But the Readmission Act is not a license to find that the intent of Section 241 was per se penal. Indeed, the Eleventh Circuit was briefed on the 

substantially identical text of Alabama’s Readmission Act, yet nevertheless 

held that the Alabama Constitution’s disenfranchisement provision was nonpenal. Thompson, 65 F.4th at 1305. Simply put, the question whether Mississippi violated the Readmission Act is separate from the issue before us and 

involves a completely different set of interpretive questions. We are not 

obliged to interpret the word “punishment” to mean the same thing in the 

Eighth Amendment as in the Readmission Act—unlike our obligation to use 

the same definition for the Ex Post Facto Clause and the Eighth Amendment. 

It could well be that “punishment” in the Act merely means “consequence 

of a crime,” rather than “punitive.” But the proper interpretation of the 

Readmission Act is not before us. All this court may do is apply the definition 

of “punishment” used for Eighth Amendment purposes to the law at hand.

When the provision’s text and structure are considered, and precedent is consulted, it becomes obvious that Section 241 is not intended as a 

punishment. The majority disregards these sources, choosing instead to rely 

on the text of the Readmission Act—which ironically was meant to recognize 

the very authority this court now repudiates. Punitive intent cannot be found 

on these facts.9

B.

The majority seemingly establishes a categorical rule that permanent 

felon disenfranchisement is cruel and unusual punishment. True, there is a 

passing mention that Mississippi’s law is unconstitutional “as applied to 

9 The majority forbears analysis of the second prong of the test—whether the 

provision is so punitive as to negate the state’s intention. I need not address that prong 

either. But I found no compelling arguments from the plaintiffs as to why Section 241 ought 

to be considered “punishment.”
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Plaintiffs and their class.” But the majority opinion immediately proceeds to 

apply the test used to determine whether a punishment is categorically cruel 

and unusual. See United States v. Farrar, 876 F.3d 702, 717 (5th Cir. 2017). 

And its language and reasoning are hardly constrained to the facts of the case. 

If courts were allowed to interpret “cruel and unusual” in line with 

the original meaning of those terms, there is no question that felon disenfranchisement would be neither cruel nor unusual. But in Trop, the Supreme 

Court held that the “Amendment must draw its meaning from the evolving 

standards of decency that mark the progress of a maturing society.” 356 U.S. 

at 101, 78 S. Ct. at 598. In cases involving categorical rules against a type of 

punishment, this involves two steps. First, courts consider “objective indicia 

of society’s standards, as expressed in legislative enactments and state practice, to determine whether there is a national consensus against the sentencing practice at issue.” Graham v. Florida, 560 U.S. 48, 61, 130 S. Ct. 2011, 

2022 (2010) (quotation marks omitted), as modified (July 6, 2010). Second, 

courts “determine, in the exercise of our own independent judgment, 

whether [the practice] is a disproportionate punishment.” Roper v. Simmons, 

543 U.S. 551, 564, 125 S. Ct. 1183, 1192 (2005). This assessment includes 

consideration of “the severity of the punishment in question,” “the culpability of the offenders at issue in light of their crimes and characteristics,” 

and “whether the challenged . . . practice serves legitimate penological 

goals.” Graham, 560 U.S. at 67.

In applying this line of cases, the majority stretches precedent beyond 

the breaking point. As this court has recognized, categorical analysis has only 

been used to declare a narrow and well-defined range of punishments cruel 

and unusual. “The [Supreme] Court has undertaken categorical analysis 

only for death-penalty cases and those involving juvenile offenders sentenced 
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to life-without-parole.” Farrar, 876 F.3d at 717.10 The ability to vote, though 

assuredly important, is in no way analogous to death or a minor’s life imprisonment. In fact, courts have uniformly refused to extend the compass of 

“cruel and unusual” punishments beyond the Supreme Court’s rulings. Id. 

(stating it “would be improper to undertake a categorical analysis” where the 

court “never established a categorical rule prohibiting” a practice). Deprivation of the right to vote is not the kind of interest that this narrow category 

of cases is meant to protect.

In addition, applying categorical analysis here leads to endless confusions. The problems begin when the majority attempts to identify a “national 

consensus” against permanent felon disenfranchisement using the “objective indicia” of state laws on the subject. Graham, 560 U.S. at 61, 130 S. Ct. 

at 2022. And the unsuitability of categorical analysis becomes even clearer 

once the majority proceeds to find Section 241 unconstitutional in its “independent judgment.” Id.

Because no two states share the same voting laws, it is not hard to find 

a “national consensus” against any one state’s practices. As the majority’s 

appendix illustrates, a few states always or usually allow voting during incarceration. Some states allow felons to vote after their release. Some allow 

voting after they complete a prison term, probation, and parole. Some require felons to first pay all owed fines and restitution. Some have statutorily 

defined waiting periods. And some, like Mississippi, permanently disenfranchise felons. Moreover, this list does not even begin to delve into the 

10 See also United States v. Cobler, 748 F.3d 570, 580–81 (4th Cir. 2014) (“The 

present case involves neither a sentence of death nor a sentence of life imprisonment 

without parole for a juvenile offender, the only two contexts in which the Supreme Court 

categorically has deemed sentences unconstitutionally disproportionate.”); United States 

v. Walker, 506 F. App’x 482, 489 (6th Cir. 2012) (finding categorical analysis “does not 

apply in cases where the defendant receives a sentence that is ‘less severe’ than a life 

sentence.”).
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intricacies of these laws, such as which felonies they cover and the procedures for the restoration of voting rights. A reasonably clever lawyer could 

find a dozen ways to divvy up states and find a national consensus against any 

particular practice.

Even worse, the majority opinion fails to offer a defensible bright line. 

If the importance of voting rights makes Section 241 cruel and unusual, then 

why would any form of post-incarceration disenfranchisement be constitutional? For that matter, why would disenfranchisement during incarceration 

be constitutional? To point to the length of the disenfranchisement does not 

resolve the matter, because in the vast majority of states, a felon can be incarcerated for life—and thereby forfeit, for life, his right to vote.

In an effort to avoid some of these problems, the majority does not 

quite hold that Mississippi can never permanently disenfranchise a felon. So 

long as a felon is serving time in prison, the court implies, it is permissible to 

strip his right to vote. Accordingly, not only may the person be disenfranchised for life due to a life prison term, but the death sentence carries the 

same result. The panel admits theirs is an “odd” result, in holding that disenfranchisement violates the Eighth Amendment when neither life imprisonment nor capital punishment does so.

The better term, in my view, would be “incoherent.” According to 

the majority’s reasoning, a state can sentence rapists to life in prison, meaning they can never vote—but if they are spared and eventually released, they 

must be allowed to vote. A state can execute murderers, but it may not keep 

them from voting if they are released from prison. In other words, permanent 

disenfranchisement is fine—so long as it is accompanied by a life sentence or 

death. But how could adding these sanctions make the loss of voting rights 

less cruel or unusual? The majority has no credible explanation why the 

Eighth Amendment permits the harsher outcome yet prohibits the milder.
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The argument that criminals who served their prison sentences have 

paid their debt to society offers no analytical safe harbor. The consequences 

of committing a felony rarely end at the prison walls. Many felons are subject 

to considerable limits on their freedom to move about and work during probation. Sexual offenders are often required to register for the protection of 

those around them. Cf. Smith v. Doe, 538 U.S. 84, 90, 123 S. Ct. 1140, 1145 

(2003) (finding such requirements nonpenal). Those with a criminal history 

are often obliged to report it to potential employers. They may be barred 

from some occupations entirely, including some forms of public office. Felons may not legally possess firearms. Completing a prison sentence does not 

entitle felons to all the rights they previously possessed.11

Because Section 241, rightly interpreted, does not impose a punishment, and because applying categorical analysis in this case is unprecedented 

and illogical, it is unnecessary to address the majority’s exercise of “independent judgment” in detail. Instead, I will merely note that the majority’s 

discussion of “severity” illustrates the flaws in its approach. As already discussed, categorical analysis is meant for punishments of the highest severity—execution or life imprisonment. Farrar, 876 F.3d at 717. Whatever its 

merits, disenfranchisement of felons is not of the same degree. The majority 

rightly extols the role of voting in a democratic society, but it cannot cite a 

single case to accord with its conclusion that disenfranchisement rises to the 

level of cruel and unusual punishment. The majority’s conclusion, in short, 

11 Of course, the majority’s “paid their debt to society” reasoning would provide 

fodder for a wealth of Eighth Amendment-based litigation challenging these additional 

adverse consequences of felon status. That situation would turn the alleged constitutional 

uniqueness of the plaintiff’s First Amendment right to vote into a general weapon against 

state criminal justice policies. The prohibition on “cruel and unusual punishments” would 

be effectively mutated into a “harmful and unfair” provision.
No. 19-60662

c/w No. 19-60678

67

is the product of judicial willfulness, not judgment. Cf. THE FEDERALIST 

NO. 78, at 405 (Alexander Hamilton) (George W. Carey & James McClellan, 

Eds., 2001). And the majority essentially gives away the game when it questions the “marginal deterrent effect the prospect of losing the franchise has 

when a person committing a felony already faces the more immediate sanction of criminal confinement.”12

 The other factors—the culpability of the 

plaintiffs and the penological goals of the law—are equally inapplicable where 

the law at issue does not impose a punishment at all.

IV.

Today’s ruling disregards text, precedent, and common sense to secure its preferred outcome. This end-justifies-means analysis has no place in 

constitutional law. I respectfully dissent.

12 The majority also turns the plaintiffs’ burden of proof upside-down by charging 

the defendants with failing to present evidence of a deterrent effect on felons.