Mississippi's strict felony voting ban unlikely to be addressed in 2022 session

by Bobby Harrison, Mississippi Today
January 26, 2022

Any effort during the 2022 legislative session to restore voting rights to people convicted of certain felonies most likely will be modest.

The House Judiciary B Committee passed legislation this week to ensure that people whose crimes are expunged regain their right to vote. But that legislation, if passed, would fall short of addressing the state's antiquated and strict constitutional provision imposing a lifetime ban on people convicted of certain felonies.

Before the session began, House Judiciary B Chair Nick Bain, R-Corinth, said he intended to try to pass legislation addressing lifetime voting ban for people convicted of certain felonies. Bain has said he thinks the judiciary, not the Legislature, should restore voting rights.

The Mississippi Constitution currently strips voting rights from people convicted of several specific crimes, and it takes a legislative suffrage bill or gubernatorial pardon to restore those rights. Lawmakers typically pass few, if any, suffrage bills g restoring the right to vote, and current Gov. Tate Reeves and his predecessor, Phil Bryant, have not granted pardons.

Bain said he is taking the more modest approach this session because he does not believe he can garner the votes needed to make significant changes to the process of restoring voting rights.

“Sometimes you have to eat the elephant one bite at a time, and that's what we are doing,” Bain said.

There are multiple other bills alive this session that would change the process so that at some point after a person had completed his sentence, voting rights would be restored as it is done in most all states. But it is not likely those bills will garner any consideration this session.

READ MORE: Key lawmaker: ‘It's past time' to address Mississippi's lifetime felony voting ban

Some legal scholars believe a change to the Mississippi Constitution is the only way the language barring people convicted of felonies from voting can be removed. It would take a two-thirds vote of each chamber and approval of the voters to change the Constitution to remove the felony disenfranchisement language.

At a hearing Bain held last year, many legal experts argued that instead of changing the Constitution, lawmakers could pass a bill to restore voting rights en masse.

“Mississippi is the only state in the nation that requires legislative action for suffrage restoration,” said Rep. Zakiya Summers, D-Jackson, pointed out on social media.

At one point, Bain indicated that he might try to take up a bill restoring rights to a large group of people. Instead, he is opting to deal with just ensuring that people who have their crimes expunged are eligible to vote.

“This is existing law. Some counties are already doing it, some are not,” Rep. Shanda Yates, I-Jackson, said of the bill passed this week. “This is simply clarifying existing law.”

READ MORE: Not all ex-felons are barred from voting in Mississippi, but no one is telling them that.

In recent years, the Legislature has expanded the crimes for which a person can garner an expungement through the judicial system. Bain said most convictions (other than for violent and sex offenses) can be expunged. He added there is contention on whether the law allows people convicted of certain types of embezzlement to have their convictions expunged. Bain said the Judiciary B Committee also might take up legislation to ensure that they can.

Testimony at Bain's hearing indicated that expungement is cumbersome, and to be successful a person normally has to hire an attorney to help navigate the process.

The problem for those wanting to ensure people convicted of felonies get their voting restored is that most of the crimes eligible for expungement are not crimes where people lose their voting rights if convicted, said Rep. Jansen Owen, R-Poplarville.

The disenfranchising crimes listed include arson, armed robbery, bigamy, bribery, embezzlement, extortion, felony bad check, felony shoplifting, forgery, larceny, murder, obtaining money or goods under false pretense, perjury, rape, receiving stolen property, robbery, theft, timber larceny, unlawful taking of a motor vehicle, statutory rape, carjacking and larceny under lease or rental agreement. In the 1950s murder and rape also were made disfranchising crimes.

The current system of disenfranchisement for those convicted of certain felonies has its roots in the state's Jim Crow era.

In the 1890s, the Mississippi Supreme Court wrote the disfranchisement of people of specific felonies was placed in the Constitution “to obstruct the exercise of the franchise by the negro race” by targeting “the offenses to which its weaker members were prone.” The crimes selected by lawmakers to go into the Constitution were thought by the white political leaders as more likely to be committed by African Americans. Under current law, a person could be convicted of the sale of drugs and vote while incarcerated while a person convicted of writing a bad check would lose their right to vote for a lifetime.

The disenfranchisement provision is currently being challenged on constitutional grounds in the federal courts with two cases pending before the 5th Circuit U.S. Court of Appeals. Attorneys have argued that the provision's intent is the same as the poll tax, the literacy test and other Jim Crow-era provisions that sought to prevent African Americans from voting.

READ MORE: Attorney general argues in federal court that Jim Crow-era voting ban should be upheld

This article first appeared on Mississippi Today and is republished here under a Creative Commons license.