Preet Bharara:

From Cafe and the Vox Media Podcast Network. This is Stay Tuned in Brief. I’m Preet Bharara. Last week, a panel of the Fifth Circuit Court of Appeals reached a significant decision on a Mississippi law that allows lifetime felony disenfranchisement. The court held that the Jim Crow-era voting ban violates the eighth amendment of the Constitution, which prohibits cruel and unusual punishment. According to The Sentencing Project, nearly one in 10 adults in Mississippi is disenfranchised with a large percentage who are Black would-be voters. The voting ban had been challenged in federal court before, even reaching the Supreme Court, but on different grounds. Those plaintiffs who’d argued against the ban on the basis of the 14th Amendment lost their case. That’s partly why the Fifth Circuit’s decision has attracted attention because of its legal reasoning and potential implications. Could it be a turning point in the fight for an important voting rights issue? Joining me to dig into the decision and the issue is Sean Morales-Doyle. He’s the director of the Voting Rights Program at the Brennan Center for Justice at NYU Law School. Sean, welcome to the show.

Sean Morales-Doyle:

Thanks for having me.

Preet Bharara:

Before we get into this decision and the somewhat novel reasoning of it, could you just for a moment, tell listeners what the issue of felony disenfranchisement is, why it exists, what the origins were, and how the country generally views the issue of not allowing people who are convicted of a felony ever to vote again?

Sean Morales-Doyle:

Sure. So felony disenfranchisement is a policy that exists in some form in 48 states in the country. Every state except for Maine and Vermont disenfranchises people who are convicted of a felony for at least some period of time. Maine, Vermont, DC and Puerto Rico actually allow people to vote even from prison. But many states restore rights upon release from prison, others, disenfranchised folks during periods of probation or parole, and about a dozen states have some form of permanent disenfranchisement. So a small minority of the country that is concentrated in the South permanently disenfranchises at least some category of people with felony convictions.

There are a few states that are kind of the worst of the worst, and Mississippi is among them because as you said, Mississippi disenfranchises about 10% of its adult population and more than 15% of its Black adult population. I think that the issue has, as the court recognized in this case, public opinion has changed on this over time and really states have been moving very much almost uniformly in the direction of re-enfranchising people after they’ve completed their sentences in many, many states after they’ve completed any term of imprisonment.

Preet Bharara:

If I may ask, what’s the justice rationale for taking away someone’s right to vote after they have served their time in prison and also whatever following term of parole or supervised release, and they’re done as far as the criminal justice system goes with paying their so-called debt to society, keeping them off the voting rolls after that satisfies what principle?

Sean Morales-Doyle:

Honestly, I don’t think it satisfies any principle.

Preet Bharara:

That was a softball.

Sean Morales-Doyle:

I think the court in this case actually goes through the four different potential bases for criminal punishment that we have in our legal system and checks them off each and says, “This isn’t serving any of these purposes.” You asked about the history of this, and so I’ll go back to that. This policy really has its roots in ancient times going back to the ancient Greek and Roman times, and it has its root in notions about both criminal justice and democracy that I think we just don’t agree with anymore.

The idea that when you commit a crime, you’re essentially kicked out of society, you’re an outlaw. The term that used to be used in ancient times was that you’re subject to civil death. You just don’t get to participate in society anymore. That isn’t how I think any of us thinks our criminal justice system should work. We believe that when people have paid their dues, they’ve done their time that they should be welcomed back into their communities, and this policy is completely at odds with that idea. It also doesn’t comport with a modern sense of how democracy should work, and that’s really the basis of the Fifth Circuit’s decision here.

Preet Bharara:

So these kinds of laws in Mississippi and elsewhere have been challenged again and again and again as I mentioned in the outset on equal protection grounds. Isn’t that though it keeps failing, isn’t that the best tactic for this? Can you explain what that argument is and why it’s failed and what the new argument is?

Sean Morales-Doyle:

Sure. So the reason why this constitutional provision was challenged under equal protection grounds originally, it’s because Mississippi’s criminal disenfranchisement law, like the laws of many other states were originally enacted for racially discriminatory reasons. Essentially after the Civil War and the ratification of the reconstruction amendments, including the 15th Amendment, which gave Black men the right to vote, a number of southern states and northern states, including New York for example, started figuring out ways that they could continue to deny Black men the right to vote without saying that’s what they were doing. And people have heard of many of these literacy tests, poll taxes, et cetera.

But one of them was criminal disenfranchisement, and that is absolutely the case in Mississippi. The evidence is as clear as day that that was why it was enacted. In that previous case that you mentioned, Justice Jackson wrote a dissent from the denial of cert from the case and said and quoted the president of the 1890 Mississippi Constitutional Convention who said, “Let us tell the truth if it bursts to the bottom of the universe, we came here to exclude the Negro. Nothing short of this will answer.” This is why they have this policy in Mississippi. And so it does make sense that that would be the primary basis for challenging it.

Preet Bharara:

So you’ve just sketched out a pretty compelling argument. Why does that fail?

Sean Morales-Doyle:

It fails for, I’d say two reasons. One is the Supreme Court a while back limited the application of the 14th Amendment to criminal disenfranchisement laws, and we can get into that, but set that aside for a second because the Supreme Court said, “If it’s intentionally racially discriminatory, you can still challenge it.” And that’s definitely the case here. The reason this argument fails is because the Fifth Circuit agreed with some logic that has previously been embraced by other courts that said essentially decades later in the ’50s and ’60s, when obviously there was no more racism in the state of Mississippi, they reenacted these provisions of their constitution and that erased the stain of the original intent, and we can’t prove that they did that reenactment for racially discriminatory reasons. So even though it’s the same policy word for word, and even though really as Justice Jackson points out, it wasn’t truly a reenactment, it was an amendment, they tweaked the list of crimes, they actually added crimes that you could be disenfranchised for. That wipes away any argument about why this provision was originally written into the Mississippi Constitution.

Preet Bharara:

So fast-forward to this Mississippi case that brings you on the show. Has it ever been tried before this eighth Amendment argument, cruel and unusual punishment?

Sean Morales-Doyle:

A version of the argument has been tried before. Actually, in a case that I worked on in Florida a few years ago, we challenged Florida’s pay to vote requirement, which says that in order to complete all terms of your sentence and get your right to vote back in Florida, you have to pay off all of your fines and fees that you owe. And there was a suit that was brought alongside our suit and consolidated with our suit that included an eighth Amendment challenge, which ultimately didn’t prevail in that case, but it was a little bit different version of the argument because this wasn’t about the same issue. It was about paying fines and fees. The same organization that brought that claim, in that case, the Southern Poverty Law Center, brought this case in the Fifth Circuit, the Mississippi case.

Preet Bharara:

By the way, since you’re mentioning Florida, my recollection is one of the issues that went on in Florida was not only were you supposed to pay your fines and fees, but in lots of instances, the person who had been in prison wasn’t told exactly what the fine and fee amount was. Do I have that right?

Sean Morales-Doyle:

Right. In fact, it’s extraordinarily difficult to figure out what fines and fees you owe in Florida.

Preet Bharara:

Which is crazy, right? So you go to a restaurant and you have a meal at the end, you’re prepared to pay. So you can leave the restaurant and they say, “No, you owe money, but we’re not going to tell you how much it is, and if you don’t pay the exact amount that it is that we’re not telling you about, the cops are going to come.” Is that a fair analogy?

Sean Morales-Doyle:

It is a fair analogy. It’s worse than that because instead of paying for your meal, you’re paying for your right to vote.

Preet Bharara:

Right. It’s much worse. It’s much worse.

Sean Morales-Doyle:

It’s we’re going to put a price tag on voting, which I think as a nation we’ve all decided is wrong, but we’re not going to tell you what the price is.

Preet Bharara:

Right.

Sean Morales-Doyle:

Yeah.

Preet Bharara:

There should be like a QR code or something.

Sean Morales-Doyle:

That would be great.

Preet Bharara:

To QR codes.

Sean Morales-Doyle:

Instead of investing in a QR code, Florida’s investing in prosecuting people who vote without realizing that they’re ineligible.

Preet Bharara:

Just one more question about Florida since we’re on it. There had been a movement in Florida, if I recall correctly, to re-enfranchise many people who had been disenfranchised because of felony convictions, and then Ron DeSantis, do I remember correctly that he did something to undo that?

Sean Morales-Doyle:

So the pay to vote requirement is actually what was actually the undoing of that. And I don’t want to say undoing because that’s going too far, but yes, Amendment four was passed in 2018. Florida had been even worse than Mississippi and arguably still is right at the bottom of the list. It used to disenfranchise every single person convicted of every felony for the rest of their life unless they were given clemency and the people of Florida overwhelmingly 65% of Florida voters approved Amendment Four in 2018, which said, “You get your right to vote back at the end of all terms of your sentence.” And then the Florida legislature, along with Governor DeSantis said, “Well, all terms of your sentence means you have to pay off all of your fines and fees. And by the way, we’re not going to tell you what you owe.”

Preet Bharara:

All right. Let’s put Florida aside for a moment again and go back to Mississippi. What are the ways in which the court found that this disenfranchisement was cruel and then secondly that it was unusual?

Sean Morales-Doyle:

Sure. So the Supreme Court’s rule about when a form of punishment is cruel and unusual is unlike most other areas of Supreme Court jurisprudence, and it says basically what is cruel and what is unusual is based on, even though it was written into the Constitution 100 years ago, it’s based on our current sense of what is an appropriate way of dealing with somebody convicted-

Preet Bharara:

Not history and tradition as in other areas.

Sean Morales-Doyle:

Right. It’s sort of the anti-Second Amendment approach and it makes sense, right? What we consider to be a cruel approach to things may be very different than what folks thought a long time ago, and that’s the reason why the court has struck down executing people convicted of crimes when they’re a juvenile, for instance. So the court does that analysis here in this case in Mississippi and says “Over the last 50, 60 years, we’ve seen a tremendous movement away from permanent disenfranchisement. And Mississippi is in a small minority of states that disenfranchise people permanently for this long list of offenses, for things that have nothing to do with voting or elections.” So not only is it in the minority, but the movement has been away from this consistently. Every state that’s passed a law recently on rights restoration has moved away from permanent disenfranchisement with maybe the possible exception of that Florida law we discussed.

And so the court says, “In contemporary society, it’s pretty clear we’ve rejected this idea.” Then the court goes on to do its own assessment of whether or not this makes sense from a penological perspective. And that’s what we talked about before. The court goes through the four bases for justifying criminal punishment under American law that includes incapacitation, rehabilitation, deterrence, and retribution. And the court one by one says, “None of these make any sense. We’re not serving any purpose by keeping people from exercising what the Supreme Court has acknowledged as a fundamental right that undergirds all other rights in this country for the rest of their life. It just doesn’t bear any resemblance or any relation to the crime that they were convicted of at the beginning.”

Preet Bharara:

Would these cases and these challenges go differently if the Constitution itself had a specifically articulated right to vote?

Sean Morales-Doyle:

It’s a good question. This case I don’t think would’ve gone differently. We’ll see what happens with it if there’s an attempt to ask for a rehearing or a cert petition to the Supreme Court, but this court, I think rightly acknowledged that whether the Constitution says in the precise words, “You have the right to vote,” it obviously does acknowledge a fundamental right to vote, and the court has said over and over again that right is fundamental and it’s the right that allows for us to have all of our other rights. So I don’t think this case certainly wouldn’t have gone differently. I don’t know that any of these other cases would go differently either. I think that none of those cases is based on the idea that there isn’t a right to vote. It’s based on the idea that somehow in ratifying the 14th Amendment, the country embraced criminal disenfranchisement. And then this other idea that we talked about before, that even denying someone the right to vote because of intentional race discrimination can somehow go stale if 100 years later a provision’s reenacted.

Preet Bharara:

Explain to folks as a matter of strategy at this moment, are civil rights lawyers thinking, “Wow, this worked in the Mississippi case on the Fifth Circuit. We have other laws like this that we want to have struck down. We should be mounting in other jurisdictions and other courts, eighth Amendment cruel and unusual punishment cases.” Or do they say to themselves, “We have this one good decision in the Fifth Circuit, we don’t want to muck it up and we’ll just avoid doing that.” How do civil rights lawyers strategize about this if they do?

Sean Morales-Doyle:

It’s a good question. I think certainly this decision, if it stands, would be a tremendous precedent. It’s a great decision that would absolutely open up opportunities to make similar challenges in other parts of the country. I’ll note that Mississippi really is the worst of the worst in some ways. They’re disenfranchising a larger percentage of their population than any other state in the country. And all that the decision says is that permanent disenfranchisement for this long list of offenses is cruel and unusual. Not that any type of felony disenfranchisement is cruel and unusual. So I don’t want to suggest that this decision will lead to-

Preet Bharara:

It doesn’t fix everything.

Sean Morales-Doyle:

You’re right. But separately, what I’ll say is this decision is a break, as we’ve talked about from what really has been decades of the federal courts being, and state courts for that matter, being very unfriendly to challenges to criminal disenfranchisement laws.

The courts have not been the place where we’re winning this fight. That’s not to say we’re not winning this fight. Part of the basis for the Fifth Circuit’s decision is that the country has embraced voting rights restoration, and that is absolutely true, and I’ve been at the Brennan Center now for a little over five years. Since I’ve been here states like New York, New Jersey, California, Virginia, Florida, Kentucky, Iowa, Louisiana, the list goes on, have all moved in the right direction on this issue and have restored voting rights to people with convictions. Now, there have been some steps backward too, like the one we discussed in Florida, but that was after this monumental leap forward with Amendment Four.

So I think when the questions put to the voters, when the questions put to state legislatures, we’re making real progress on this issue when the question has been put to the courts, sadly, the courts have not been particularly friendly to these arguments for reasons that I disagree with. So this Fifth Circuit decision does provide some hope that maybe that won’t always be the case, but it is a particular ruling about a particular policy. So as you said, it won’t solve everything, and I do think it’s incumbent on civil rights lawyers and advocates like us to continue to press this issue in all of the places that we can continue to push for legislative action and ballot initiatives and executive action, which has actually been quite successful in recent years.

Preet Bharara:

Look, the dissent points to the fact that this is whether you agree or not that legislatures can solve this problem overnight. Before I let you go, could you quickly just explain procedurally what happens next with this Fifth Circuit case?

Sean Morales-Doyle:

Sure. This case, the Fifth Circuit, decided this as a three judge panel, which is a typical way that courts of appeals decide cases. The state may decide to petition for a rehearing en banc, meaning that all of the judges of the Fifth Circuit would get a chance to weigh in on, or all of the active non-senior judges would get to weigh in on the decision. They also have the option of petitioning for a write of certiorari to the Supreme Court and asking the Supreme Court to take it on. Both of those are discretionary. Neither the Fifth Circuit nor the Supreme Court has to take this case. This could be where it ends, but it’s certainly possible that either the Fifth Circuit sitting en banc or the Supreme Court might decide to weigh in.

Preet Bharara:

And as I always say in these circumstances, stay tuned. Sean Morales-Doyle, thank you for your work on this issue. It’s very important, and thank you for being on the show.

Sean Morales-Doyle:

Thank you so much for having me.

Preet Bharara:

For more analysis of legal and political issues making the headlines, become a member of the Cafe Insider. Members get access to exclusive content including the weekly podcast I host with former US Attorney, Joyce Vance. Head to cafe.com/insider to sign up for a trial. That’s cafe.com/insider.

If you like what we do, rate and review the show on Apple Podcasts or wherever you listen. Every positive review helps new listeners find the show. Send me your questions about news, politics, and justice. Tweet them to me @PreetBharara with the hashtag #AskPreet. You can also now reach me on Threads, or you can call and leave me a message at 669-247-7338. That’s 669-24-PREET, or you can send an email to letters@cafe.com. Stay tuned is presented by Cafe and the Vox Media Podcast Network. The executive producer is Tamara Sepper. The technical director is David Tatasciore. The senior producer is Adam Waller. The editorial producer is Noa Azulai, and the Cafe team is Matthew Billy, David Kurlander, Jake Kaplan, Nat Wiener, Namita Shah, and Claudia Hernández. Our music is by Andrew Dost. I’m your host, Preet Bharara. Stay Tuned.