The whole U.S. Court of Appeals for the Fifth Circuit on Tuesday aggressively questioned whether a three-judge panel of the same court was correct in finding in August that a Mississippi lifelong voting ban for people convicted of certain felonies violates the Eighth Amendment's prohibition on "cruel and unusual" punishment.

At its core, the case involves facial challenges to Section 241 of the Mississippi Constitution, which permanently disqualifies people from voting if they are convicted of 10 specific felonies — including murder, rape and theft — and Section 253, which regulates how they can get their rights restored.

During the en banc rehearing of the decision, which topped a challenge to the provisions brought by a group of Mississippi individuals who served felony sentences, eight of the court's 19 judges showed skepticism toward both sides of the issue, highlighting an ideological divide on the bench.

Judge James Earl Graves Jr., an Obama appointee, pointedly questioned the attorney arguing on behalf of Mississippi, Scott G. Stewart, on the backdrop of racial discrimination in which the voting ban was adopted, at the end of the Reconstruction period. A different judge suggested that the provision could be invalid because of its racist background.

"We know what the original intent of Section 241 was — don't we?" the judge asked, meaning that it was meant to disenfranchise people of color.

Stewart agreed with the judge that the ban's original intent was "bad" and "discriminatory" but said the prohibition didn't amount to a form of punishment, which is the aspect that is currently at the center of the plaintiff's case.

As part of a class action, Mississippi residents Dennis Hopkins, Herman Parker and Walter Wayne Kuhn Jr., all of whom have completed their felony sentences, asked the federal court to restore the voting rights they lost decades ago under the voting ban provisions. Roy Harness and a few other individuals did the same in a separate suit.

In the suits, which were filed against the Mississippi secretary of state and were consolidated in June 2018, the formerly incarcerated plaintiffs said Mississippi's lifetime voting ban spelled out in Section 241 is a form of "cruel and unusual" punishment when imposed on people like them who have completed their sentences. They said the provision runs afoul of the U.S. Constitution's Eighth Amendment.

The plaintiffs also argued that a state constitutional provision allowing people to regain voting rights through an individualized review lacks any subjective standards and therefore cannot be invoked, alleging that it violates the 14th Amendment's equal protection clause.

Currently, 39 states and the District of Columbia do not permanently disenfranchise people convicted of non-elections related offenses. Eleven states have lifelong voting bans for people convicted of crimes other than voting-related offenses.

In August 2019, the U.S. District Court for the Southern District of Mississippi held that the Eighth Amendment challenge to Section 241 could proceed, after shutting down all the other claims in the original complaints. And on Aug. 4, 2023, a divided Fifth Circuit panel was the first federal court to find the lifetime voting ban unconstitutional.

On Sept. 28, however, the whole court vacated the panel's decision pending the en banc hearing.

During the arguments on Tuesday, several judges were interested in knowing whether a permanent voting ban would be unconstitutional under any circumstances, and where to draw the line.

"If the state says if you're your rapist, you served your 40 years, you served your time, but you're still permanently disenfranchised because we don't think somebody who committed rape needs to be part of the franchise. Is that cruel and unusual punishment?" Judge Kyle Duncan, a Trump appointee, asked the lawyer for the plaintiffs, Jonathan K. Youngwood of Simpson Thacher & Bartlett LLP.

Youngwood replied that a voting ban tailored to address the most heinous crimes could perhaps be justifiable.

Unsatisfied with the answer, Judge Duncan concluded that courts should not interfere with state lawmakers in deciding which types of crimes warrant a permanent voting ban.

"These are legislative judgments. There is no judicial calculus available to tell the difference between a rapist and an armed robber, or a car thief or timber thief, for that matter," he said.

Some judges appeared eager to know how upholding the unconstitutionality of the voting ban could affect other rights, most notably restrictions on gun possession.

Judge James C. Ho, another Trump appointee, asked Youngwood whether the cruel and unusual punishment theory could be applied to a federal law disarming people convicted of felonies.

"A lot of prosecutors are saying that it's not fair to go after felons purely for gun possession," Judge Ho said. "At some point, then, would the logic of your theory allow public defenders to argue that [gun bans for felons] might be cruel and unusual?"

Youngwood replied that issues involving guns and those involving voting are too different to be analyzed under the same legal reasoning. Without voting rights, Younwood told the court, no other rights could be secured.

Judge Ho's inquiry came as no surprise given the Fifth Circuit's friendly attitude toward gun rights. Last year, the court struck down a federal law banning gun possession by people subject to domestic violence restraining orders, a case now before the U.S. Supreme Court. The Fifth Circuit is also currently probing a lower court ruling last month finding that a law prohibiting unauthorized immigrants from possessing firearms violates the Second Amendment.

The Eighth Amendment, which was ratified as part of the Bill of Rights in 1791 and includes prohibitions on excessive bail and fines, is more commonly invoked in death penalty cases. Numerous executions have been challenged in recent years on the basis that capital punishment caused unnecessary suffering to the condemned. However, the concept of cruel and unusual punishment has been applied to other contexts as well.

Eighth Amendment challenges to voting bans for felons have been attempted before, but they always failed. The U.S. Supreme Court has never ruled on the bans under such a framing. A typical Eighth Amendment analysis involves looking at current trends around the country that deal with punishment.

The plaintiffs in the consolidated Mississippi case argued that the state's voting ban is out of step with a majority of jurisdictions that, beginning in the 1970s, have deemed those bans a form of punishment, and that they break away from commonplace rules in modern civil society.

"The issue of criminal-based disenfranchisement is an extraordinarily important issue, not just to the people directly affected by it and denied the right to vote, but, we would submit, to society as a whole," Youngwood said. "You want people reintegrated into society in full when they're out of prison. You want them to participate. And it's a democracy, and if people can't vote, you know, that threatens democracy."

The Mississippi Attorney General's Office said through a spokesperson that it appreciated the "thoughtful consideration" the court gave to its arguments.

The spokesperson, Debbee Hancock, then quoted an attorney general's brief criticizing the panel's August ruling. 

"The people of Mississippi have resoundingly disagreed with [the panel majority's 'independent judgment' on this matter]. No judge had ever embraced it before the panel did here."

The class members are represented by Jonathan K. Youngwood, Janet A. Gochman, Nihara K. Choudhri, Charlotte A. McCary, Albert J. Tagliaferri and Sareen K. Armani of Simpson Thacher & Bartlett LLP, and Bradley E. Heard, Leslie Faith Jones and Ahmed Soussi of the Southern Poverty Law Center.

The Mississippi secretary of state is represented by Scott G. Stewart of the Mississippi Attorney General's Office.

The consolidated case is Hopkins v. Watson, case number 19-60662, in the U.S. Court of Appeals for the Fifth Circuit.

--Editing by Rich Mills.

Update: This article has been updated with a full counsel listing for the class members and with comment from the Mississippi Attorney General's Office.