Petitions of the week

Mississippi’s permanent felony voting ban returns to the court

The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In 1974, the Supreme Court ruled that the Constitution generally permits states to strip people convicted of felonies of their right to vote. Widespread at the time, that practice has since fallen out of favor in many states, although a minority still disenfranchise people who commit serious, non-election-related crimes. This week, we highlight petitions asking the court to consider, among other things, whether a provision of Mississippi’s constitution that permanently bars anyone convicted of a laundry list of nonviolent felonies from voting violates the federal Constitution.

Felony disenfranchisement has a long, and often racist, history. Section 241 of Mississippi’s constitution is no exception. The provision, which permanently bars anyone convicted of a listed felony from voting, was amended in 1890 to remove crimes more often committed by white residents and add those more commonly committed by Black residents. Supporters of the amendment stated openly that their goal was to keep Black men away from the ballot box.

Two years ago, the court rejected an earlier challenge to the provision. A group of Black state residents who had permanently lost their right to vote after being convicted of felonies listed in the provision argued that the 1890 amendment’s intent to discriminate against Black people, coupled with the provision’s continued emphasis today on crimes that disproportionately disenfranchise Black Mississippi residents, violated the 14th Amendment’s guarantee of equal protection, which prohibits the government from treating people differently without a good reason.

Justice Ketanji Brown Jackson, in an opinion joined by Justice Sonia Sotomayor, criticized the court for refusing to take up the case the day after it struck down affirmative action in higher education.

Meanwhile, a second group of Black Mississippi residents who permanently lost their right to vote brought another challenge to the provision. In addition to claiming that it violates the 14th Amendment, they also argued that permanently stripping people of their right to vote violates the Eighth Amendment’s bar on cruel and unusual punishment.

A federal district court in Mississippi rejected the challenge. But a three-judge panel of the U.S. Court of Appeals for the 5th Circuit reversed that decision, in part. Although it too rebuffed the 14th Amendment claim, the court of appeals agreed that the provision violates the Eighth Amendment, concluding it both disproportionately harms Black residents and defies society’s “evolving standards of decency.”

The full 5th Circuit, however, overruled that decision. The Supreme Court’s 1974 opinion green-lighting felony disenfranchisement had ruled that the text of the 14th Amendment — which strips congressional seats from states where the right to vote is “denied … except for participation in rebellion, or other crime” — generally permits states to bar people convicted of crimes from voting. It would make little sense, the 5th Circuit concluded, for the 14th Amendment to permit felony disenfranchisement only for the Eighth Amendment to prohibit it. But in any event, the court of appeals ruled that Mississippi’s permanent voting ban does not meet the high threshold to violate the latter.

In Hopkins v. Watson, the challengers ask the justices to grant review and reverse the full 5th Circuit’s ruling. They argue that the text of the 14th Amendment does not permit states, like Mississippi, to permanently bar people convicted of felonies from the ballot box: It applies to states where voting is “denied … or in any way abridged, except for participation in rebellion, or other crime,” they emphasize, and “abridged” means only a temporary loss. The challengers therefore ask the justices to “revisit” the court’s 1974 ruling, and clarify that permanent felony disenfranchisement is not only inconsistent with the 14th Amendment, but amounts to cruel and unusual punishment proscribed by the Eighth Amendment.

A list of this week’s featured petitions is below:

United States Postal Service v. Konan
24-351
Issue: Whether a plaintiff’s claim that she and her tenants did not receive mail because U.S. Postal Service employees intentionally did not deliver it to a designated address arises out of “the loss” or “miscarriage” of letters or postal matter under the Federal Tort Claims Act.

Hittle v. City of Stockton, California
24-427
Issues: (1) Whether this court should overrule McDonnell Douglas Corp. v. Green; and (2) whether step three of the McDonnell Douglas burden-shifting framework requires a plaintiff to disprove the employer’s proffered reason for the adverse employment action, when the text of Title VII of the Civil Rights Act of 1964 and Bostock v. Clayton County provide that an action may have more than one but-for cause or motivating factor.

Berk v. Choy
24-440
Issue: Whether a state law providing that a complaint must be dismissed unless it is accompanied by an expert affidavit may be applied in federal court.

Peterson v. Doe
24-449
Issue: Whether Arizona’s Save Women’s Sports Act, which preserves the traditional practice of excluding biological males from girls’ and women’s sports teams and competitions, violates the equal protection clause of the 14th Amendment.

Konan v. United States Postal Service
24-495
Issues: (1) Whether federal employees can be liable under the Ku Klux Klan Act; and (2) whether or under what circumstances the intracorporate conspiracy doctrine — which holds that employees of the same entity cannot be liable for conspiracy — applies to the act.

Hopkins v. Watson
24-560
Issues: (1) Whether Section 241 of the Mississippi Constitution’s lifetime disenfranchisement of individuals who have completed their sentences for past felony convictions violates the Eighth Amendment’s prohibition on cruel and unusual punishment; and (2) whether Section 2 of the 14th Amendment to the U.S. Constitution’s “affirmative sanction” for and safe harbor from strict scrutiny review applies only to laws that temporarily abridge the right to vote based on “participation in rebellion, or other crime,” and not to laws like Section 241 that permanently deny the right to vote to individuals who have completed their sentences for past felony convictions.