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Appeals steam ahead after judge partly rejects voting suit

August 25, 2019

It’s no surprise that a federal judge crippled a lawsuit challenging Mississippi’s constitutional provisions that take the right to vote away from people convicted of certain crimes. After all, district court judges aren’t supposed to overrule higher courts. But with multiple parties appealing, the dispute isn’t over yet.

U.S. District Judge Dan Jordan earlier in August threw out combined challenges to Mississippi’s provisions that disenfranchise people. He left alive a challenge to how Mississippi allows people to regain their voting rights, but ruled that those challenging that part of the state Constitution hadn’t yet done enough to prove their case that it is racially discriminatory.

The Mississippi Constitution strips the ballot from people convicted of 10 felonies, including murder, forgery and bigamy. The attorney general later expanded that list to 22, adding crimes that include timber larceny and carjacking. Two separate groups of plaintiffs challenged the provision in recent years, arguing disenfranchisement violates the U.S. Constitution because it was adopted with the discriminatory intent of keeping African Americans from voting.

One group of plaintiffs filed a petition with the 5th U.S. Circuit Court of Appeals on Aug. 19, while a lawyer for the second group says he too will appeal. Secretary of State Delbert Hosemann has also signaled he wants the 5th Circuit to take another look at Jordan’s ruling, which found Hosemann was the right person to sue.

Jordan anticipated this, saying both sides could pursue mid-case appeals. He froze the litigation to give them time to do so, but he wrote that it wasn’t his role as a trial court judge to overrule the 5th Circuit or the U.S. Supreme Court.

“While those courts may be free to reassess their prior rulings, the precedent is binding at the district-court level,” Jordan wrote .

On questions over whether Mississippi could strip voting rights, Jordan said he had to follow Cotton v. Fordice, a 1998 5th Circuit decision. The court ruled then that although Mississippi’s 1890 Constitution might have been motivated by unconstitutional racial animus, any illegal motivation was wiped out when Mississippi voters amended the disenfranchisement section in 1950 and 1968. The current plaintiffs argue that’s not true, and furthermore argue that the plaintiff in Cotton, a prisoner representing himself, didn’t have enough resources to properly pursue the case.

One set of plaintiffs represented by the Southern Poverty Law Center argued that the 14th Amendment only allows a state to temporarily “abridge” someone’s right to vote and not to take it away forever. Jordan rejected that argument, too, saying the U.S. Supreme Court found in 1974 that states could take away voting rights permanently.

The SPLC plaintiffs also say Mississippi’s current process of restoring voting rights, which either requires a pardon from the governor or a bill restoring rights by the Legislature, is unconstitutionally arbitrary and was adopted with intent to discriminate. Jordan found that the plaintiffs offered some evidence that proved the 1890 process aimed to hurt African Americans, but said he couldn’t rule without a trial. That leaves the issue alive but undecided.

The SPLC plaintiffs filed last week with the 5th Circuit. They re-argue that the disenfranchisement provision violates the Eighth Amendment’s prohibition against cruel and unusual punishment, and that the “standardless” process for restoring voting rights is unfair.

Rob McDuff, a Mississippi Center for Justice lawyer who represents the second set of plaintiffs, said they too will appeal, making a straight-ahead attack asking the court to overturn Cotton v. Fordice.

“At a time when most states have repealed their disfranchisement laws, Mississippi should no longer be governed by this backward provision that was enacted with such a shameful purpose,” McDuff said in a statement.

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Jeff Amy has covered Mississippi politics and government for The Associated Press since 2011. Follow him on Twitter at http://twitter.com/jeffamy .

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