Legislature could try to address felony voting ban for first time since 2008

by Bobby Harrison, Mississippi Today
November 28, 2021

The state House of Representatives overwhelmingly passed legislation in 2008 to restore voting rights to all Mississippians convicted of felonies, except for those convicted of murder or rape.

The 2008 legislation later died in the Senate, where Phil Bryant presided as lieutenant governor. Current House Speaker Philip Gunn, then a sophomore legislator from Clinton, was among the few House members to vote against the 2008 bill.

Since 2008 there has not been any serious efforts by legislators to move Mississippi more toward the nation's mainstream, where in more than 40 states voting rights for those convicted of felonies are restored automatically at some point after their sentence is completed.

In the upcoming 2022 session, House Judiciary B Chairman Nick Bain, a Republican from Corinth, has vowed to try to make the process of restoring voting rights for Mississippians with felony convictions “more consistent and fairer.”

What that effort looks like remains to be seen. Bain has stressed that at this point he is not trying to completely scrap Mississippi's archaic felony voting ban.

The surest way to make whatever changes Bain decides to try to make would be to amend the 1890 Constitution to revise the language that disenfranchises people convicted of certain felonies.

“Obviously we can try to amend the Constitution, but that is a high burden,” said Bain, who held a legislative hearing in October on the issue.

Changes to the state Constitution require approval by two-thirds of the members of each chamber of the Legislature and voter approval.

The current language in the Constitution says to restore voting rights, approval is needed from two-thirds of the elected membership of both chambers of the Legislature. Voting rights also have been restored through gubernatorial pardons and by judicial expungements, though the process is burdensome and not allowed for all convicted of felonies.

The Legislature normally approves individual bills to restore voting rights one person at a time. Normally less than five people have their rights restored each year. In the 2021 session, the rights of just two people were restored.

But there seemed to be a consensus at Bain's October hearing that rights could be restored to large swaths of people in one piece of legislation instead of restoring rights one person and one bill at a time.

Some said they believe the Legislature has the constitutional authority to restore rights to just those already convicted.

But Paloma Wu, a deputy director with the Mississippi Center for Justice, said she believes the Constitution is not clear on the issue and said legislators could restore voting rights for people convicted in the future and allow the courts to interpret the issue should a lawsuit be filed challenging the law.

Most all agreed, though, that to restore the rights to a large group of people would take two-thirds approval from members of both chambers just as it does to restore rights to an individual convicted of a felony. That process could prove difficult in a Legislature where in recent years, many members of the Republican majority have been reluctant to restore voting rights.

In a perfect world, Bain has said he believes it should be another entity, such as the judiciary, and not the Legislature that restores voting rights. It is not clear whether giving that authority to the courts could be done without a constitutional amendment.

There is no public polling on whether voters would support removing the lifetime ban on voting if the Legislature offered such a proposal to the electorate. In Florida, voters overwhelmingly approved an initiative removing the ban.

One of the problems with the current process in Mississippi, Bain has said, is that a person faces a lifetime ban on voting for a felony bad check writing conviction, for instance, but could vote while in prison if convicted of child pornography or of being a major drug dealer.

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.

That 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.

Another sure way to change the state's felony suffrage ban is for the courts to strike it down.

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