United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit

FILED August 4, 2023 No. 19-60662 Lyle W. Cayce consolidated with Clerk No. 19-60678

Dennis Hopkins, individually and on behalf of a class of all others similarly situated; Herman Parker, Jr., individually and on behalf of a class of all others similarly situated; Walter Wayne Kuhn, Jr., individually and on behalf of a class of all others similarly situated; Bryon Demond Coleman, individually and on behalf of a class of all others similarly situated; Jon O’Neal, individually and on behalf of a class of all others similarly situated; Earnest Willhite, individually and on behalf of a class of all others similarly situated, Plaintiffs—Appellees,

versus

Secretary of State Delbert Hosemann, in his official capacity,

Defendant—Appellant,

Appeal from the United States District Court for the Southern District of Mississippi No: 3:18-CV-188

Before King, Jones, and Dennis, Circuit Judges. James L. Dennis, Circuit Judge: Case: 19-60662 Document: 00516846289 Page: 2 Date Filed: 08/04/2023

No. 19-60662 c/w No. 19-60678

In this class action, Plaintiffs, representing persons who have been convicted of certain crimes and have completed the terms of their sentences, challenge their disenfranchisement by two provisions of Article XII of the Mississippi Constitution of 1890. The first provision, Section 241, mandates permanent, lifetime disenfranchisement of a person convicted of a crime of any one of “murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement or bigamy.”1 The sec- ond, Section 253, provides for a discretionary, standardless scheme for the Mississippi Legislature to restore the right to vote to disenfranchised persons on an individualized basis by a two-thirds vote of all members of each house of the Legislature. Plaintiffs sued Mississippi’s Secretary of State (the “Secretary”), contending that Section 241 violates the Eighth Amendment’s prohibition on cruel and unusual punishment and the Fourteenth Amendment’s guarantee of equal protection under the law. They also claim that Section 253 violates the Fourteenth Amendment’s guarantee of equal protection of the laws and the First Amendment guarantee of freedom of speech. The Secretary re- sponded that Plaintiffs lack Article III standing, that their claims are barred by the doctrine of state sovereign immunity, and that all of their claims fail on their merits. For the reasons explained below, we hold that Plaintiffs are entitled to prevail on their claim that, as applied to their class, disenfranchisement for life under Section 241 is unconstitutional cruel and unusual punishment

1 The Mississippi Secretary of State, the defendant here, is required by statute to treat additional crimes that the Mississippi Attorney General deems to be a species of the common law crimes listed in Section 241. See Miss. Code. § 23-15-151. For instance, timber larceny, armed rob