Hopkins v. Hosemann ( 2023 )


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  • Case: 19-60662       Document: 00516846289           Page: 1     Date Filed: 08/04/2023
    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:
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    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 robbery, and larceny under a lease agreement are all deemed by the
    Attorney General as disenfranchising crimes though they are not expressly listed in Section
    241.
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    within the meaning of the Eighth Amendment. In the last fifty years, a na-
    tional consensus has emerged among the state legislatures against perma-
    nently disenfranchising those who have satisfied their judicially imposed sen-
    tences and thus repaid their debts to society. Today, thirty-five states plus
    the District of Columbia disavow the practice embodied in Section 241, a su-
    permajority whose size is dispositive under controlling Supreme Court prec-
    edent. Mississippi stands as an outlier among its sister states, bucking a clear
    and consistent trend in our Nation against permanent disenfranchisement.
    And in our independent judgment—a judgment under the Eighth Amend-
    ment that the Supreme Court requires we make—Section 241’s permanent
    disenfranchisement serves no legitimate penological purpose. By severing
    former offenders from the body politic forever, Section 241 ensures that they
    will never be fully rehabilitated, continues to punish them beyond the term
    their culpability requires, and serves no protective function to society. It is
    thus a cruel and unusual punishment.
    We accordingly reverse the district court’s contrary ruling, render
    judgment for Plaintiffs on this claim, and remand the case with instructions
    that the district court grant relief declaring Section 241 unconstitutional and
    enjoining the Secretary from enforcing Section 241 against the Plaintiffs and
    the members of the class they represent. Plaintiffs’ equal protection claim
    against the Secretary with respect to Section 241, however, is foreclosed by
    the Supreme Court’s decision in Richardson v. Ramirez, 
    418 U.S. 24
     (1974).
    Additionally, Plaintiffs lack standing to challenge the legislative process em-
    bodied in Section 253 through this action.
    I.     Factual and Procedural Background
    A.       Mississippi’s 1890 Constitution and Sections 241 and 253
    Sections 241 and 253 of the Mississippi Constitution are, with the ex-
    ception of several amendments to Section 241, original to the state’s 1890
    3
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    Constitution, which was adopted in reaction to the expansion of black suf-
    frage and other political rights during Reconstruction. See Harness v. Watson,
    
    47 F.4th 296
    , 300 (5th Cir. 2022) (en banc). After wresting control of state
    government from black leaders and their Republican allies through a cam-
    paign of violence and electoral fraud, Mississippi’s white political leadership
    called for a new state constitution that would ensure “a home government,
    under the control of the white people of the State.” Senator J. Z. George, He
    Addresses a Large Audience at His Old Home, The Clarion-Ledger
    (Jackson) 1 (Oct. 24, 1889). In 1890, the state legislature voted to convene
    a constitutional convention in order to draft and adopt a new state constitu-
    tion. From the outset, the object of the 1890 Mississippi Constitutional Con-
    vention was clear: to ensure the political supremacy of the white race. See
    Harness, 47 F.4th at 318 (Graves, J. dissenting). Key to accomplishing this
    end was a package of “voter qualifications and procedures” that delegates
    adopted “to exclude black citizens from participation in the electoral pro-
    cess.” Miss. State Chapter, Operation Push v. Allain, 
    674 F. Supp. 1245
    , 1251
    (N.D. Miss. 1987), aff’d, 
    932 F.2d 400
     (5th Cir. 1991).
    Although the delegates were explicit about their goal of white political
    control, they were careful to avoid provisions overtly violating the Fifteenth
    Amendment’s ban on restricting voting based on race. Convention’s Com-
    mittee on the Elective Franchise (the “Franchise Committee”) thus pro-
    posed voter qualification requirements that were facially race neutral. These
    included the kind of poll taxes, literacy tests, and residency requirements that
    were common in the American South during the post-Reconstruction era.
    Among these requirements was also a criminal disenfranchisement provision
    that remains today as Section 241 of the Mississippi Constitution. The meas-
    ure was designed to target as disenfranchising offenses those that the white
    delegates thought were more often committed by black men. Harness, 47
    F.4th at 300; Ratliff v. Beale, 
    20 So. 865
    , 868–69 (Miss. 1896) (explaining that
    4
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    in enacting Section 241 the Convention aimed to “obstruct the exercise of
    the franchise by the negro race” by including as disenfranchising offenses
    only those “to which its weaker”—by which the court meant “black”—
    “members were prone.”).
    The possibility that the disenfranchisement provisions might ensnare
    not only black men but also poor white males caused concern at the
    Convention. So, in an effort to mitigate the fear that the disenfranchisement
    provisions would also affect whites, the Convention ratified several “escape”
    clauses. For example, to reduce the impact of literacy tests on poor white
    males, the Convention enacted the “Understanding Clause,” a provision
    that allowed a voter to pass a “constitutional interpretation test” by giving a
    “reasonable interpretation” of the state constitution. The Franchise
    Committee justified this “Understanding Clause” on the grounds that it
    would “exclude . . . [n]o white man who has sense enough to go to the mill,”
    and urged that the clause would “secure[] a white basis upon which to erect
    a permanent State government.” Don’t Like It But Takes It, The Clarion-
    Ledger (Jackson) 1 (Oct. 9, 1890).
    Another of the escape clauses was the suffrage restoration provision
    that is contained in Section 253. Section 253 allows the Mississippi
    Legislature to, by a two-thirds vote of the elected members of both houses,
    restore the voting rights of any person disenfranchised by Section 241.
    Miss. Const. art. XII, § 253. While the record behind the enactment of
    Section 253 is scant, its timing and context suggest it was intended to limit
    the impact of Section 241’s criminal disenfranchisement provision on white
    men, providing a limited “safety net” to allow any whites unintentionally
    disenfranchised by Section 241 to escape its effects. And, like the
    Understanding Clause, Section 253 includes no objective standards of any
    kind, allowing legislators unfettered discretion in restoring the franchise to
    individuals.
    5
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    Mississippi’s 1890 Constitution was adopted by a vote of the delegates
    on November 1, 1890, without ratification by the people of Mississippi. Other
    Southern states took notice of Mississippi’s “success” in disenfranchising
    its black electorate and used the State’s 1890 Constitution as a model when
    adopting their own racial disenfranchisement provisions. See Franita Tolson,
    What Is Abridgment? A Critique of Two Section Twos, 
    67 Ala. L. Rev. 433
    ,
    469–71 (2015) (noting that South Carolina and North Carolina adopted con-
    stitutional disenfranchisement provisions in an effort to limit the black elec-
    torate).
    Since its enactment, Section 241 has been amended twice. Harness, 47
    F.4th at 300. In 1950, “burglary” was removed from the list of disenfranchis-
    ing crimes, and in 1968, “murder” and “rape” were added—the latter of-
    fenses having been historically excluded because they were not considered
    crimes a black person was prone to commit. See Ratliff, 20 So. at 868. Under
    Section 241, an individual who is convicted of a crime as minor as writing a
    bad check for $100 or stealing less than $250 worth of timber is permanently
    disenfranchised. Miss. Code § 97-19-67(1)(d); § 97-17-59.
    Section 253 has never been amended, and, with the exception of gu-
    bernatorial pardon and the limited restoration for certain World War I and II
    veterans, it remains the only means for disenfranchised individuals to regain
    the right to vote. In the mid-1980s, an election law task force appointed by
    the Mississippi Secretary of State and two separate panels convened by the
    Mississippi Legislature proposed repealing Section 253 and replacing it with
    an amendment that would automatically restore the right to vote to individ-
    uals convicted of disenfranchising crimes upon completion of their sen-
    tences. The Legislature, however, ultimately did not adopt this proposal as
    part of an election law reform bill enacted in 1986.
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    Sections 241 and 253 continue to be part of the Mississippi Constitu-
    tion and over the years they have been remarkably effective in achieving their
    original, racially discriminatory aim. In 2017, 36% of voting-age citizens in
    Mississippi were black. Yet, according to data provided by the Mississippi
    Administrative Office of the Courts, of the nearly 29,000 Mississippians who
    were convicted of disenfranchising offenses and have completed all terms of
    their sentences between 1994 and 2017, 58%—or more than 17,000 individu-
    als—were black. Only 36% were white. The discretionary legislative re-en-
    franchisement permitted by Section 253 does little to alleviate this dispropor-
    tionate burden, and, as a practical matter, legislative suffrage is exceedingly
    rare: between 2013 and 2018, the Mississippi Legislature restored the right
    to vote to only eighteen individuals.
    B.      The Secretary’s Role in Enforcement of Sections 241 and 253
    Federal law requires that each state designate a chief election official
    who is “responsible for coordination” of the state’s duties under the Na-
    tional Voter Registration Act (“NVRA”). 
    52 U.S.C. § 20509
    ; see also Volun-
    tary Guidance on Implementation of Statewide Voter Registration Lists,
    Election Assistance Comm’n, 
    70 Fed. Reg. 44593
    -02, 44594 (Aug. 3,
    2005) (“The chief State election official is the highest ranking State official
    who has, as a primary duty, the responsibility to ensure the lawful administra-
    tion of voter registration in Federal elections.”). In Mississippi, the Secretary
    of State performs this role. Miss. Code § 23-15-211.1(1). The Secretary is
    charged by state law with establishing the instructions and application form
    for voter registration. Id. §§ 23-15-39(1), 23-15-47(3). Each municipality’s
    clerk, in her capacity as the local registrar of voters, is in turn required to “use
    [the] voter registration applications . . . prescribed by the Secretary of State”
    when registering voters. Id.§ 23-15-35(1).
    7
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    The current Mississippi voter registration application form, as
    adopted by the Secretary, states that individuals convicted of certain crimes
    in a Mississippi state court are not eligible to register to vote. The form re-
    quires an applicant to affirm, on penalty of perjury, that he or she has either
    “never been convicted of voter fraud or any other disenfranchising crime”
    or has had their voting rights restored. The Secretary is also tasked by state
    statute with “implement[ing] and maintain[ing]” an electronic information
    processing system containing a “centralized database of all registered voters
    in the state.” Id. § 23-15-165(1). This system, referred to as the Statewide
    Elections Management System (“SEMS”), is updated by each county’s cir-
    cuit clerk on a quarterly basis with a list of persons convicted of any disen-
    franchising crime under Section 241; these persons are then purged from the
    voter rolls in the database. Id. § 23-15-151.
    Finally, the Secretary serves on the State Board of Election Commis-
    sioners and is responsible in that capacity for training county election com-
    missioners on voter roll maintenance, including the use of SEMS to remove
    disqualified electors from voting rolls. Id. § 23-15-211(4). After an elections
    commissioner completes annual training, the Secretary provides the commis-
    sioner with a certificate that is required for the commissioner to maintain of-
    fice. Id. §§ 23-15-211(4)–(5) (providing that election commissioners are re-
    quired to attend the Secretary’s elections seminars, upon completion of
    which they are to receive a certificate that must be renewed yearly).
    In sum, the Secretary is Mississippi’s “chief election officer” and per-
    forms key functions in administering and enforcing state election laws, in-
    cluding by (1) establishing voter registration instructions and application
    forms, which state that a person convicted of any disenfranchising crime is
    ineligible to vote; (2) administering the SEMS registered voter database; and
    (3) training county election officials through mandatory seminars on their ob-
    ligation to purge SEMS of ineligible voters and then certifying these officials.
    8
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    C.     Proceedings Below
    In 2018, six permanently disenfranchised Mississippi citizens filed
    this putative class-action lawsuit in federal district court, asserting five fed-
    eral constitutional challenges to Sections 241 and 253. Plaintiffs, who were
    convicted of various crimes and have completed all terms of their sentences,
    sued the Secretary in his official capacity, requesting declaratory and injunc-
    tive relief for claimed violations of the First, Eighth, and Fourteenth Amend-
    ments of the United States Constitution. Dennis Hopkins, a grandfather and
    founder of a local peewee football team, has been disenfranchised since 1998
    when he was convicted of grand larceny. Herman Parker Jr., a public em-
    ployee with over a decade of service working for the Vicksburg Housing Au-
    thority, is disenfranchised for life because he was convicted of grand larceny
    at the age of nineteen. And Byron Demond Coleman lost his right to vote in
    1997 when he was convicted of receiving stolen property after buying some
    refurbished appliances. The district court certified Plaintiffs’ proposed class,
    allowing Plaintiffs to represent persons in the state who have been convicted
    of a Section 241 disenfranchising offense and who have completed all terms
    of their sentences.
    Plaintiffs and the Secretary filed cross-motions for summary
    judgment. The Secretary contended that Plaintiffs lacked standing, that their
    suit was barred by sovereign immunity, and that the claims failed on their
    merits. The district court rejected the Secretary’s jurisdictional arguments,
    holding that Plaintiffs had standing to bring each of their claims and that the
    Secretary was amenable to a suit seeking equitable relief under Ex parte
    Young. But, on the merits, the district court granted summary judgment to
    the Secretary except as to Plaintiffs’ Section 253 race-based equal protection
    claim. On this latter claim only, the court ruled that “questions of fact”
    remained as to whether Plaintiffs “met their burden” under controlling
    precedent. The court then certified its order for interlocutory appeal.
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    The parties filed timely cross-petitions with this court seeking permis-
    sion to file an interlocutory appeal. This court granted both petitions and con-
    solidated the appeals.
    II.       Legal Standard
    We review an order on summary judgment de novo, applying the same
    standard as applicable to the district court. Castellanos-Contreras v. Decatur
    Hotels, LLC, 
    622 F.3d 393
    , 397 (5th Cir. 2010). Summary judgment is appro-
    priate where “the movant shows that there is no genuine dispute as to any
    material fact and the movant is entitled to judgment as a matter of law.”
    Fed. R. Civ. P. 56(a).
    III.    Discussion
    On appeal, Plaintiffs argue that: (1) the district court properly held
    that Article III standing was satisfied as to all claims, (2) the Ex parte Young
    exception to sovereign immunity allows all claims to be brought against the
    Secretary; (3) Section 241’s lifetime voting ban infringes on the fundamental
    right to vote, is therefore subject to strict scrutiny, and cannot satisfy such
    demanding review; (4) Section 241’s lifetime disenfranchisement violates
    the Eighth Amendment’s prohibition on cruel and unusual punishment be-
    cause it is punitive and contrary to contemporary standards of decency; (5)
    Section 253, the suffrage restoration provision, violates the Equal Protection
    Clause because it authorizes legislators to arbitrarily restore (or not restore)
    the right to vote to some citizens rather than others, its enactment in 1890
    was motivated by racial animus, and it disproportionately impacts black Mis-
    sissippians today; and (6) Section 253 violates the First Amendment because
    legislators are given the power to exercise “unfettered discretion” in
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    determining who can express their constitutionally-protected political views
    by voting.2
    In response, the Secretary contends that (1) Plaintiffs lack Article III
    standing and sovereign immunity bars their claims; (2) the Supreme Court’s
    decision in Richardson v. Ramirez, which upheld California’s permanent felon
    disenfranchisement scheme against an equal protection challenge, forecloses
    Plaintiffs’ equal protection claim; (3) Section 241 cannot violate the Eighth
    Amendment because Richardson precludes an Eighth Amendment challenge
    to permanent disenfranchisement and because Section 241 does not impose
    “punishment” within the meaning of the Eighth Amendment; (4) Section
    253’s discretionary procedures for restoration of the franchise do not violate
    equal protection under Supreme Court precedent because Plaintiffs failed to
    demonstrate that Section 253 was enacted with a discriminatory motive and
    currently has a racially disproportionate impact; and (5) Section 253 does not
    run afoul of the First Amendment because the First Amendment does not
    afford greater protection for voting rights than that already provided by the
    Fourteenth Amendment.
    We address these arguments in turn, starting as we must with the
    question of standing.
    A.       Article III Standing
    The district court denied the Secretary’s motion for summary judg-
    ment based on lack of standing, concluding that Plaintiffs have standing to
    bring all their claims—the equal protection and Eighth Amendment
    2
    Plaintiffs did not offensively petition this Court for permission to appeal the
    question of whether a standardless re-enfranchisement law violates the First Amendment.
    Plaintiffs included defensive argument on this issue because it was raised by the Secretary
    in his briefing and in the event it is reached by the Court.
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    challenges to Section 241, as well as the equal protection and First Amend-
    ment challenges to Section 253.
    Article III of the Constitution limits the exercise of federal judicial
    power to “Cases” and “Controversies.” See Spokeo, Inc. v. Robins, 
    578 U.S. 330
    , 337 (2016) (citing U.S. Const. art. III, § 2). The doctrine of standing
    “is an essential and unchanging part of the case-or-controversy requirement
    of Article III.” Lujan v. Defenders of Wildlife, 
    504 U.S. 555
    , 560 (1992).
    To establish Article III standing, (1) Plaintiffs must have suffered an
    “injury in fact” that is “concrete and particularized” and “actual or immi-
    nent”; (2) “the injury has to be fairly traceable to the challenged action of
    the defendant”; and (3) “it must be likely . . . that the injury will be redressed
    by a favorable decision.” 
    Id.
     at 560–61 (cleaned up). Plaintiffs, as the party
    invoking federal jurisdiction, “bear[] the burden of establishing these ele-
    ments.” Id. at 561. Furthermore, “‘a plaintiff must demonstrate standing for
    each claim he seeks to press’ and ‘for each form of relief’ that is sought.”
    Davis v. Fed. Election Comm’n, 
    554 U.S. 724
    , 734 (2008) (quoting Daim-
    lerChrysler Corp. v. Cuno, 
    547 U.S. 332
    , 352 (2006)). We review questions of
    standing de novo. Nat’l Rifle Ass’n of Am., Inc. v. McCraw, 
    719 F.3d 338
    , 343
    (5th Cir. 2013).
    Considering Plaintiffs’ standing to assert their various challenges to
    each of the provisions at issue, we hold that Plaintiffs have demonstrated
    their standing to pursue their Section 241 claims but not their Section 253
    claims.
    1.        Section 241
    Plaintiffs challenge the permanent disenfranchisement provision of
    Section 241 on the grounds that it violates the Equal Protection Clause of the
    Fourteenth Amendment and the Eighth Amendment’s prohibition of cruel
    and unusual punishment. The district court concluded that the Secretary’s
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    statutory duties managing a statewide computerized election management
    system and his designation as the state’s chief elections officer established
    that “Plaintiffs’ injuries are sufficiently traceable to and redressable by” the
    Secretary. The Secretary disagrees, arguing that because he merely provides
    information to local officials who administer elections regarding disqualified
    voters, Plaintiffs’ injuries cannot be traced to nor redressed by him.
    The district court disagreed, as do we. Plaintiffs’ injuries stemming
    from Section 241 are fairly traceable to the Secretary. Designated by federal
    law as Mississippi’s chief election officer, the Secretary is tasked with devel-
    oping mail voter application forms, 
    52 U.S.C. § 20508
    (a)(2), and, under Mis-
    sissippi law, is responsible for establishing the instructions and application
    form for voter registration. See Miss. Code §§ 23-15-39(1), 23-15-47(3).
    The current Mississippi voter registration application and form, as estab-
    lished by the Secretary, states that a person convicted of any disenfranchising
    crime in a Mississippi court is ineligible to vote and requires that an applicant
    affirm that they have never been convicted of such a crime on penalty of per-
    jury. Municipal clerks are statutorily required to use an application form evi-
    dencing a disenfranchising conviction to deny registration as “prescribed by
    the Secretary.” Id. § 23-15-35(1).
    On this basis alone, Plaintiffs’ injuries are fairly traceable to the Sec-
    retary’s actions. By requiring individuals to declare, on penalty of perjury,
    that they have not been convicted of disenfranchising crimes, the voter reg-
    istration application that the Secretary developed prohibits individuals con-
    victed of disenfranchising crimes from lawfully completing the application
    form that is needed in order to vote. See Tex. Democratic Party v. Abbott, 
    978 F.3d 168
    , 178 (5th Cir. 2020) (Secretary’s duty to design mail-in-ballot suffi-
    cient to confer standing on voters denied the right to vote by mail because of
    age).
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    But the Secretary’s duties do not end there. The Secretary is also
    tasked with “implementing and maintaining” the SEMS database. Miss.
    Code § 23-15-165(1). SEMS “constitute[s] the official record of registered
    voters in every county of the state,” and therefore plays an essential compo-
    nent in purging from the voter rolls individuals convicted of a disenfranchis-
    ing crime. Id. For example, SEMS is updated quarterly with a list of individ-
    uals convicted of disenfranchising offenses. Id. § 23-15-151. And the Secre-
    tary has the statutory responsibility to train local elections officials to use
    SEMS to filter out disenfranchised individuals from the SEMS voter data-
    base. Id. § 23-15-211(4). Indeed, local elections commissioners can only be
    certified as such after attending the Secretary’s annual training, in which he
    instructs them to purge the voter rolls. Id. §§ 23-15-211(4)-(5). Though local
    officials may be the ones to ultimately remove ineligible voters from their
    voter rolls, they do so based on an eligibility determination made by the Sec-
    retary and in accordance with training from his office. The Secretary’s con-
    duct need not be the proximate cause of a voter’s disenfranchisement in or-
    der for the denial of the right to vote to be fairly traceable to him. Bennett v.
    Spear, 
    520 U.S. 154
    , 168–69 (1997). When a voter is removed from the voter
    rolls by a local official acting on information and instructions provided by the
    Secretary and in accordance with training from his office, the voter’s injury
    is fairly traceable to the Secretary.
    Because of these duties, the Secretary is also in a position to redress
    Plaintiffs’ alleged injuries. Were the Secretary enjoined from enforcing Sec-
    tion 241, as Plaintiffs seek, he could amend Mississippi’s voter registration
    form to allow disenfranchised class members to register, cease entering the
    names of citizens disqualified under Section 241 into SEMS or, alternatively,
    train local election officials to disregard that information in SEMS in main-
    taining their local voter rolls.
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    In sum, “the Secretary of State ha[s] a role in causing the claimed in-
    jury and is in a position to redress it at least in part. That is enough to confer
    standing to the voter plaintiffs to sue the Secretary.” Tex. Democratic Party,
    978 F.3d at 178. See also Harness v. Hosemann, 
    988 F.3d 818
    , 821 (5th Cir.
    2021) (finding standing to sue the Secretary for enforcing Section 241), reh’g
    en banc granted, opinion vacated, 
    2 F.4th 501
     (5th Cir. 2021), and on reh’g en
    banc affirmed sub nom. Harness v. Watson, 
    47 F.4th 296
     (5th Cir. 2022).
    2.      Section 253
    Plaintiffs also challenge Section 253 of Mississippi’s Constitution,
    contending that that provision violates the First Amendment and the Four-
    teenth Amendment’s Equal Protection Clause. The district court stated that
    the Secretary’s role in Section 253 is “slight,” but nevertheless found that
    Plaintiffs “minimally demonstrated standing” with respect to these claims
    because the Secretary is Mississippi’s “chief election officer and maintains
    SEMS, which would presumably be involved in one of the final steps in re-
    turning a convicted felon to the voting rolls after he or she successfully files
    a section 253 petition.” Since the Secretary had “some connection with the
    enforcement of the act,” the district court concluded that Plaintiffs had
    standing to sue.
    We observe that Plaintiffs characterize their injury not as the Secre-
    tary’s implementation and enforcement of Section 253 but instead as the
    “unconstitutional burden” the provision places on individuals seeking to re-
    gain the right to vote through the passage of a suffrage bill. More specifically,
    this burden is having to petition the Legislature for a suffrage bill and then
    navigate the standardless and arbitrary process to pass the bill. This legisla-
    tive process that Plaintiffs challenge begins and ends without the Secretary’s
    involvement. The Secretary, in his official capacity, does not sponsor, draft,
    debate, vote on, or otherwise officially impact the passage or denial of a
    15
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    No. 19-60662
    c/w No. 19-60678
    suffrage restoration bill under Section 253. True, the Secretary will enforce
    any suffrage bill the Legislature happens to pass. But Plaintiffs’ issue is not
    with the enforcement of any particular suffrage bill or suffrage bills generally,
    but with the Legislature’s caprice in failing to enact them in the first place.
    Thus, the injury Plaintiffs complain of—the legislative process for restoration
    of the franchise—is not fairly traceable to the Secretary but instead is “the
    result of the independent action of some third party not before the court.”
    Lujan, 504 U.S. at 560 (cleaned up). Accordingly, although Plaintiffs have
    established standing as to their claims against Section 241, they lack standing
    as to their claims against Section 253.
    B.      Sovereign Immunity
    There is one final jurisdictional matter: Eleventh Amendment sover-
    eign immunity, which the Secretary contends bars Plaintiffs’ challenge to
    Section 241. The Eleventh Amendment generally precludes private suits
    against nonconsenting states in federal court. City of Austin v. Paxton, 
    943 F.3d 993
    , 997 (5th Cir. 2019). Sovereign immunity extends to suits against
    state officials that are, in effect, a suit against a state. 
    Id.
     (citing Edelman v.
    Jordan, 
    415 U.S. 651
    , 663–69 (1974)). However, under the equitable excep-
    tion to Eleventh Amendment immunity established in Ex parte Young, 
    209 U.S. 123
    , 155–56 (1908), a plaintiff may bring suit for injunctive or declaratory
    relief against a state official, in her official capacity, to “enjoin enforcement
    of a state law that conflicts with federal law.” Air Evac EMS, Inc. v. Tex. Dep’t
    of Ins., 
    851 F.3d 507
    , 515 (5th Cir. 2017). Our court has observed that there is
    a “significant[] overlap” between the “Article III standing analysis and Ex
    parte Young analysis.” City of Austin, 943 F.3d at 1002 (quoting Air Evac
    EMS, Inc., 
    851 F.3d at 520
    ).
    Whether the Secretary is subject to suit under the Ex parte Young ex-
    ceptions first depends upon whether the “complaint alleges an ongoing
    16
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    c/w No. 19-60678
    violation of federal law and seeks relief properly characterized as prospec-
    tive.” Verizon Md., Inc. v. Pub. Serv. Comm’n of Md., 
    535 U.S. 635
    , 645
    (2002). Plaintiffs’ complaint alleges that the enforcement of Section 241 con-
    tinues to wrongfully deprive them of the franchise in violation of the Eighth
    and Fourteenth Amendments and prays for declaratory and injunctive relief
    to stop the ongoing violation of their rights. Plaintiffs’ complaint thus re-
    quests relief that is permissible under Ex parte Young.
    The next inquiry concerns whether the defendant, “by virtue of his
    office, has some connection with the enforcement” of Section 241. Ex parte
    Young, 209 U.S. at 157. Without this requisite connection, the suit “is merely
    making [the state officer] a party as a representative of the state, and thereby
    attempting to make the state a party.” Id. Although “[t]his circuit has not
    spoken with conviction” regarding the precise scope of the connection re-
    quired under Ex parte Young, a sufficient connection certainly exists when
    there exists a “‘special relationship’ between the state actor and the chal-
    lenged” provision. Tex. Democratic Party, 978 F.3d at 179 (quoting K.P. v. Le-
    Blanc, 
    627 F.3d 115
    , 123 (5th Cir. 2010)). This standard is met here.
    As explained in our standing analysis regarding Section 241 supra, the
    Secretary is charged under state law with establishing the instructions and
    application form for voter registration, and the form that the Secretary has
    developed specifically states that persons convicted of disenfranchising of-
    fenses are ineligible to vote. Further, state law requires the Secretary to de-
    velop and implement SEMS, which is “the official record of registered voters
    in every county of the state,” Miss. Code § 23-15-165(1), and to train local
    elections officials to use SEMS to purge disenfranchised persons from the
    SEMS voter database. Id. § 23-15-211(4). Although local elections officials
    may also play a role in the disenfranchisement process, this does not alter or
    reduce the Secretary’s clear connection to the enforcement of Section 241.
    17
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    Because Plaintiffs have standing to pursue their Section 241 claims
    and because the Ex parte Young exception to state sovereign immunity ap-
    plies, we have jurisdiction over Plaintiffs’ appeal. We therefore proceed to
    the merits of their challenges to Section 241.
    C.     Equal Protection Challenge to Section 241
    Plaintiffs contend that permanent disenfranchisement under Section
    241 of the Mississippi Constitution violates the Equal Protection Clause of
    the Fourteenth Amendment. This claim, Plaintiffs acknowledge, must be
    reconciled with the Supreme Court’s decision in Richardson v. Ramirez. 
    418 U.S. 24
     (1974).
    In Richardson, former felons who had completed all terms of their
    court-imposed sentences challenged a set of California laws that permanently
    disenfranchised any person convicted of an “infamous crime” unless and un-
    til the person obtained a court order or executive pardon that restored the
    franchise. 
    Id.
     at 26–27. The plaintiffs argued that, when applied to a class of
    felons whose terms of incarceration and parole had expired, California’s per-
    manent disenfranchisement scheme violated the Equal Protection Clause by
    burdening a fundamental right without a compelling state interest. 
    Id. at 27
    .
    In considering the plaintiffs’ claim, the Supreme Court looked not only to
    Section 1 of the Fourteenth Amendment, where the Equal Protection Clause
    is located, but also to the “less familiar” Section 2 of that Amendment. 
    Id. at 42
    . Section 2 provides, in relevant part:
    [W]hen the right to vote . . . is denied . . . or in any way abridged,
    except for participation in rebellion, or other crime, the basis of
    [a State’s] representation [in Congress] . . . shall be reduced in
    the proportion which the number of such [disenfranchised] cit-
    izens shall bear to whole number of [citizens eligible to vote in
    that state].
    18
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    U.S. Const. amend. XIV, § 2. Thus, Section 2 of the Fourteenth Amend-
    ment imposes a penalty of reduced congressional representation on states
    that deny or abridge the right to vote for reasons other than “participation in
    rebellion, or other crime.” Id.
    The Court ultimately rejected the plaintiffs’ challenge, relying pri-
    marily on Section 2. The Court pointed out that the phrase “except for par-
    ticipation in rebellion, or other crime” (the “other crime” exception) ex-
    empted states like California that disenfranchised their citizens because of
    felony convictions from the amendment’s sanction of reduced representa-
    tion. Id. at 55. From this observation, the Court posited that “those who
    framed and adopted the Fourteenth Amendment could not have intended to
    prohibit outright in [the Equal Protection Clause of Section] 1 of that Amend-
    ment, that which was expressly exempted from the lesser sanction of reduced
    representation by [Section] 2 of the Amendment.” Id. at 43. In light of the
    “affirmative sanction” for “the exclusion of felons from the vote in [Section]
    2 of the Fourteenth Amendment,” the Court held that California laws per-
    manently disenfranchising “convicted felons who have completed their sen-
    tences and paroles” did not violate the Equal Protection Clause. Id. at 56.
    Under binding Supreme Court precedent, then, state laws that permanently
    disenfranchise convicted felons are not per se unconstitutional on equal pro-
    tection grounds.3
    3
    Although we are bound by the Supreme Court’s holding in Richardson, we do not
    contend here that the Richardson majority’s reading of Section 2 is the only plausible
    interpretation of the provision. Justice Marshall, dissenting in Richardson, forcefully argued
    that the disenfranchisement of ex-felons must withstand the requirements of the Equal
    Protection Clause because neither the fact that multiple States “had felon
    disenfranchisement laws at the time of the adoption of the Fourteenth Amendment, nor
    that such disenfranchisement was specifically excepted from the special remedy of [Section
    2], can serve to insulate such disenfranchisement from equal protection scrutiny.”
    19
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    Despite Richardson’s holding, Plaintiffs urge that it does not foreclose
    their equal protection claim. They advance what they characterize as a novel
    textualist argument that was not raised in Richardson—that Section 2’s
    “other crime” exception to reduced representation applies only when laws
    temporarily “abridge” the right to vote and does not apply when laws, like
    Section 241 of Mississippi’s Constitution, permanently “deny” the franchise.
    Plaintiffs thus argue that permanent felon disenfranchisement is not “ex-
    pressly exempted” from Section 2’s representation penalty, and, therefore,
    Richardson’s determination that the Equal Protection Clause in Section 1
    does not prohibit felon disenfranchisement laws is inapplicable. Id. at 43.
    Though Plaintiffs do not expressly ask us to overrule Richardson—a
    power we undoubtedly lack, Ballew v. Cont’l Airlines, Inc., 
    668 F.3d 777
    , 782
    (5th Cir. 2012)—their argument calls for us to invalidate on equal protection
    grounds a state law authorizing permanent disenfranchisement of persons
    convicted of certain crimes. But that is precisely the type of law the Richard-
    son Court expressly upheld against an equal protection attack. The California
    laws the Richardson plaintiffs challenged were not temporarily abridging dis-
    enfranchisement laws, but permanent ones like the Mississippi law chal-
    lenged here. See Richardson, 
    418 U.S. at
    27–28 (“At the time respondents
    were refused registration” . . . the California Constitution provided that no
    person convicted of an infamous crime “shall ever exercise the privileges of
    an elector in this State.”) (emphasis added). Richardson, therefore, applied
    Section 2’s “other crime” exception to permanent disenfranchisement.
    Whether the Supreme Court majority thought California’s permanent disen-
    franchisement was a “denial” of the right to vote or an “abridgment” is
    Richardson, 
    418 U.S. at 74, 77
     (Marshall, J., dissenting, joined by Brennan, J.) (concluding
    that Section 2 “was not intended and should not be construed to be a limitation on the other
    sections of the Fourteenth Amendment”).
    20
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    immaterial. The Court clearly was of the opinion that California’s constitu-
    tional and statutory scheme—which permanently disenfranchised individu-
    als convicted of “infamous crimes”—fell within the “other crime” excep-
    tion found in Section 2 of the Fourteenth Amendment. See 
    id.
     at 54–55. The
    Court thus necessarily rejected an argument that the “other crime” excep-
    tion applied only to temporary disenfranchisement.
    In sum, as an “inferior court,” U.S. Const. art. III, § 1, we are
    bound by the Supreme Court’s decision in Richardson, see Ballew, 
    668 F.3d at 782
    , and therefore must conclude that Section 241 of Mississippi’s Constitu-
    tion does not violate the Equal Protection Clause by burdening this funda-
    mental right.4 The district court thus correctly granted summary judgment
    to the Secretary on this claim.
    4
    Plaintiffs cite to several cases to support their contention that “[e]ven if the Rich-
    ardson Court had assumed that the ‘other crime’ exception modifies the words ‘is denied’
    as well as the phrase ‘or in any way abridged,’ the Supreme Court’s unstated assumption
    does not foreclose consideration of this question.” We find this argument unavailing. The
    cases cited by Plaintiffs stand for the proposition that legal questions neither raised before
    nor considered by a prior court do not constitute binding precedent. See, e.g., Cooper Indus.,
    Inc. v. Aviall Servs., Inc., 
    543 U.S. 157
    , 170 (2004) (refusing to rely on dictum in another
    case to resolve the plaintiff’s alternative argument, which was not briefed by the plaintiff
    and which would have required the court to decide a question that was “a significant issue
    in its own right”); Webster v. Fall, 
    266 U.S. 507
    , 511 (1925) (explaining in a case where an
    indispensable party was not joined or added as a litigant that earlier decisions in which the
    Court reached the merits of a dispute despite the absence of an arguably necessary party
    could not serve as binding precedent on the requirement of such a party’s presence because
    that issue had not been “suggested or decided” in the earlier cases); Brecht v. Abrahamson,
    507 US. 619, 631 (1993) (in considering whether the harmless-error standard of review ap-
    plied in federal habeas cases, the Supreme Court reasoned that even though it was applied
    in such a manner in the past, its application “had never squarely addressed the issue,” and
    therefore was “free to address [that] issue on the merits”). In the instant case, the legal
    question of whether state laws providing for permanent disenfranchisement of convicted
    felons violate equal protection has already been squarely passed upon by the Supreme
    Court. See Richardson, 
    418 U.S. at 24
    .
    21
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    D.       Eighth Amendment Challenge to Section 241
    Plaintiffs contend that permanent disenfranchisement by Section 241
    is cruel and unusual punishment that violates the Eighth Amendment.
    Section 241 disenfranchisement begins upon a person’s conviction of a
    Section 241 offense and continues for the rest of his life. The Eighth
    Amendment provides: “Excessive bail shall not be required, nor excessive
    fines imposed, nor cruel and unusual punishments inflicted.” U.S. Const.
    amend. VIII. “To determine whether a punishment is cruel and unusual,
    courts must look beyond historical conceptions to ‘the evolving standards of
    decency that mark the progress of a maturing society’ . . . ‘The standard itself
    remains the same, but its applicability must change as the basic mores of
    society change.’” Graham v. Florida, 
    560 U.S. 48
    , 58 (2010) (first quoting
    Estelle v. Gamble, 
    429 U.S. 97
    , 102 (1976); then quoting Kennedy v. Louisiana,
    
    554 U.S. 407
    , 418 (2008)). The district court failed to apply this standard to
    Section 241, concluding in error that Section 2 of the Fourteenth
    Amendment placed the practice of permanent felon disenfranchisement
    Plaintiffs also point to the Ninth Circuit’s treatment of felon disenfranchisement
    in Harvey v. Brewer, 
    605 F.3d 1067
     (9th Cir. 2010), in which the plaintiffs challenged an
    Arizona statute that permanently disenfranchised convicted felons. The plaintiffs sought
    to “escap[e] Richardson’s long shadow” by contending that the “other crime” exception
    in Section 2 “only permit[ted] disenfranchisement for common-law felonies” and did not
    apply to statutory felonies. 
    Id. at 1071
    , 1073–74 (9th Cir. 2010) (O’Connor, J., sitting by
    designation). The Ninth Circuit acknowledged that the plaintiffs’ proposed reading of
    Section 2 was “in extreme tension with Richardson” given that the Supreme Court upheld
    a permanent felon disenfranchisement scheme without evincing any “concern with
    whether any particular felony was one recognized at common law.” 
    Id. at 1074, 1078
    (quoting Richardson, 
    418 U.S. at 56
    ). Nevertheless, since neither the Ninth Circuit nor the
    Supreme Court “ha[d] directly addressed this precise question”—the types of crimes
    within the ambit of Section 2’s “other crime” exception—the court considered (and
    rejected) the merits of plaintiffs’ argument. Id. at 1074. By contrast, Plaintiffs here ask this
    court to adopt a construction of Section 2 that is not merely in tension with Richardson but
    instead directly conflicts with that decision’s holding. That we cannot do.
    22
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    beyond the reach of the Eighth Amendment. We reverse the district court’s
    entry of summary judgment for the Secretary. For the reasons hereinafter
    assigned, we instead render judgment for the plaintiffs declaring that
    permanent disenfranchisement inflicted by Section 241 of Article XII of the
    Mississippi Constitution is cruel and unusual punishment in violation of the
    Eighth Amendment.
    1. Richardson Applied Only Equal Protection Precepts and Therefore
    Does Not Foreclose Plaintiffs’ Eighth Amendment Claim
    Before engaging in the Eighth Amendment analysis, we point out that
    the district court erred by omitting entirely to perform that assessment in the
    present case. Relying on the Supreme Court’s decision in Richardson, the
    district court concluded that Plaintiffs’ Eighth Amendment claim failed
    because it would be “internally inconsistent for the Eighth Amendment to
    prohibit criminal disenfranchisement while § 2 of the Fourteenth
    Amendment permits it.” Harness v. Hosemann, No. 3:17-CV-791, 
    2019 WL 8113392
    , at *11 (S.D. Miss. Aug. 7, 2019). That was error. Richardson held
    only that permanent disenfranchisement did not violate the Equal Protection
    Clause of the Fourteenth Amendment by burdening a fundamental right
    without adequate justification. The Court did not consider or decide whether
    a permanent ban on felons’ voting after they completely served their
    sentences violates the Eighth Amendment’s prohibition on cruel and unusual
    punishment.
    The Supreme Court has “rejected the view that the applicability of
    one constitutional amendment pre-empts the guarantees of another . . . The
    proper question is not which Amendment controls but whether either
    Amendment is violated.” United States v. James Daniel Good Real Prop., 
    510 U.S. 43
    , 49–50 (1993). Though Richardson contemplated that felon
    disenfranchisement was implicitly authorized by Section 2 of the Fourteenth
    23
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    Amendment, “provisions that grant Congress or the States specific power to
    legislate in certain areas . . . are always subject to the limitation that they must
    not be exercised in a way that violates other specific provisions of the
    Constitution.” Williams v. Rhodes, 
    393 U.S. 23
    , 29 (1968); see also Soldal v.
    Cook Cnty., Ill., 
    506 U.S. 56
    , 70 (1992) (“Certain wrongs affect more than a
    single right and, accordingly, can implicate more than one of the
    Constitution’s commands.”). Indeed, this fundamental principle of
    constitutional construction has been applied by the Supreme Court in
    circumstances squarely analogous to the case at bar. In Hunter v. Underwood,
    
    471 U.S. 222
    , 227–29 (1985), the Court held that a provision of Alabama’s
    Constitution that disenfranchised persons convicted of crimes “involving
    moral turpitude” violated the Equal Protection Clause in Section 1 of the
    Fourteenth Amendment because of the provision’s racially discriminatory
    origins and impact. The Court explained that, despite the “implicit
    authorization of § 2 [of the Fourteenth Amendment] to deny the vote to
    citizens for ‘participation in rebellion, or other crime,’” Section 2 did not
    “permit . . . purposeful racial discrimination” that “violates § 1 of the
    Fourteenth Amendment.” Id. at 233 (internal citation omitted). “[W]e are
    confident that § 2 was not designed to permit the purposeful racial
    discrimination . . . which otherwise violates § 1 of the Fourteenth
    Amendment,” the Court explained. Id. “Nothing in our opinion in
    Richardson v. Ramirez, 
    supra,
     suggests the contrary.” 
    Id.
    Further, there is no reason to think the Eighth Amendment’s
    protections may, for some special reason, be nullified by the Constitution’s
    countenancing a particular type of punishment. Courts, including ours, have
    recognized that the Eighth Amendment constrains states’ power to impose
    “cruel and unusual” conditions of involuntary servitude on prisoners,
    despite the fact that the Thirteenth Amendment “specifically allows
    involuntary servitude as punishment after conviction of a crime.” Murray v.
    24
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    Miss. Dep’t of Corr., 
    911 F.2d 1167
    , 1168 (5th Cir. 1990). Although the
    Thirteenth Amendment may authorize the state to impose work obligations
    on prisoners, “there are circumstances in which prison work requirements
    can constitute cruel and unusual punishment” in violation of the Eighth
    Amendment. Ray v. Mabry, 
    556 F.2d 881
    , 882 (8th Cir. 1977) (holding that
    prisoner stated an Eighth Amendment claim when he alleged that he was
    forced to work “90 to 120 hours per week;” “that he cannot do the hard labor
    assigned to him because he is physically disabled;” and “that he is constantly
    cursed and threatened by prison supervisors”); see also Williams v. Henagan,
    
    595 F.3d 610
    , 622 n.18 (5th Cir. 2010) (“Prison work conditions may
    however, amount to cruel and unusual punishment.”).
    The district court erred in concluding that Section 2 of the Fourteenth
    Amendment’s implicit authorization of permanent disenfranchisement
    settles all constitutional questions about the practice. Fundamental tenets of
    constitutional jurisprudence and on-point Supreme Court precedent makes
    clear that Section 2 does not override all other constitutional protections.
    Although the Fourteenth Amendment has been interpreted to implicitly
    authorize     felon   disenfranchisement,    disenfranchisement      schemes
    established under this authority must still be consonant with other
    constitutional commands, including those embodied in the Eighth
    Amendment. The protections to individual liberty and dignity afforded by
    each provision of the Constitution do not evaporate when one provision
    permits states to legislate in a certain field. “Obviously we must reject the
    notion that [Section 2], gives the States power to impose burdens on the right
    to vote, where such burdens are expressly prohibited in other constitutional
    provisions.” Rhodes, 393 U.S. at 29.
    Furthermore, Richardson only addressed an equal protection
    challenge to permanent disenfranchisement. It did not examine or rule upon
    an Eighth Amendment claim, as the present case requires. Whether a
    25
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    punishment is “cruel and unusual” within the meaning of the Eighth
    Amendment requires ascertaining society’s “evolving standards of
    decency,” which, in turn, are determined by “evidence of contemporary
    values.” Graham, 560 U.S. at 58, 62. Neither Richardson, which was decided
    nearly half a century ago, nor the 19th century history of Section 2 that the
    opinion recounted appear obviously relevant to the “evolving standards of
    decency” of today that the Eighth Amendment embodies. Id. at 58. We
    therefore see no way in which Section 2, as interpreted by Richardson,
    precludes an Eighth Amendment challenge to permanent criminal
    disenfranchisement today.
    Our dissenting colleague contends that Richardson forecloses nearly
    all constitutional challenges to felon disenfranchisement. The argument
    goes: Because the Eighth Amendment’s protection from cruel and unusual
    punishment is incorporated against the states through the Due Process
    Clause in Section One of the Fourteenth Amendment, and because
    Richardson held that California’s permanent felon disenfranchisement did
    not violate Section One’s Equal Protection Clause (a different clause than
    the Due Process Clause in Section One), Mississippi’s law cannot violate the
    Eighth Amendment through Section One’s Due Process Clause. One need
    not do more than restate the dissent’s argument to demonstrate its lack of
    merit. As an initial matter, Richardson decided an Equal Protection challenge
    to permanent felon disenfranchisement, not a challenge based on a
    substantive right incorporated through the Due Process Clause. Richardson’s
    reading of how the Equal Protection Clause in Section One is limited by the
    representation reduction mechanism in Section Two says nothing about
    narrowing the scope of substantive rights incorporated through the Due
    Process Clause. The Supreme Court has made clear that the substantive
    rights contained in the Bill of Rights—including those of the Eighth
    Amendment—are not diluted or somehow lesser in content by virtue of their
    26
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    being incorporated through the Fourteenth Amendment. To the contrary,
    “incorporated Bill of Rights protections ‘are all to be enforced against the
    States under the Fourteenth Amendment according to the same standards
    that protect those personal rights against federal encroachment.’” McDonald
    v. City of Chicago, 
    561 U.S. 742
    , 765 (2010) (quoting Malloy v. Hogan, 
    378 U.S. 1
    , 10 (1964)); see also Timbs v. Indiana, 
    139 S. Ct. 682
    , 687 (2019)
    (“Thus, if a Bill of Rights protection is incorporated, there is no daylight
    between the federal and state conduct it prohibits or requires.”); Kennedy v.
    Louisiana, 
    554 U.S. 407
    , 419 (2008) (applying the Eighth Amendment
    through the Fourteenth by looking to the “norms that currently prevail,” not
    “the standards that prevailed when the Eighth Amendment was adopted in
    1791”). The dissent’s novel theory of constitutional law is unsupportable.
    The dissent’s citations to generic canons of statutory interpretation
    are also meritless. The dissent argues that we allow the Eighth Amendment’s
    “general” prohibition on cruel and unusual punishment to override Section
    Two’s “specific” authorization of felon disenfranchisement as punishment.
    As an initial matter, we do not adopt the dissent’s characterization of the
    Eighth Amendment as a “general” provision that must yield to the implicit
    authorization of felon disenfranchisement in Section 2 of the Fourteenth
    Amendment. Were that true, then no constitutional challenge to a state’s
    felon disenfranchisement law would be possible, a result that is plainly
    incompatible with the Supreme Court’s decision in Hunter. The dissent
    acknowledges that constitutional grants of power to legislate in a certain area
    “are always subject to the limitation that they may not be exercised in a way
    that violates other specific provisions of the Constitution.” Post at 57
    (quoting Williams v. Rhodes, 
    393 U.S. 23
    , 29 (1968)). Our reading employs
    this canon of constitutional interpretation. It is the interpretive method that
    the Supreme Court has expressly instructed the lower courts to follow. And
    it is the one the Court has applied to an analogous question of whether felon
    27
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    disenfranchisement may violate a substantive constitutional right. The
    answer to that question is clear: a state’s felon disenfranchisement law may
    violate the Constitution, Section Two notwithstanding. See Hunter, 
    471 U.S. at 233
    .
    We    consider,    then,     whether      Mississippi’s      permanent
    disenfranchisement scheme is supportable today under the Eighth
    Amendment.
    2.        Permanent Disenfranchisement Under Section 241 is Punish-
    ment
    As is self-evident from its text, the Eighth Amendment’s Cruel and
    Unusual Punishment Clause applies only to punishments. The threshold
    Eighth Amendment issue therefore is whether Section 241 constitutes a
    punishment or, instead, a non-punitive regulation of the electoral franchise.
    Our court has adopted “an intents-effects test” to help determine
    whether a statute constitutes punishment under various constitutional
    provisions, including the Eighth Amendment. Does 1-7 v. Abbott, 
    945 F.3d 307
    , 314 (5th Cir. 2019). Under this test, “[i]f the intention of the legislature
    was to impose punishment, that ends the inquiry[.]” 
    Id.
     (quoting Smith v.
    Doe, 
    538 U.S. 84
    , 92 (2003)). In reviewing the legal context in which the
    Mississippi Constitutional Convention of 1890 enacted Section 241, we find
    strong evidence that the body’s intent was to establish a punitive law,
    punishing and disenfranchising the targeted convicts without any legitimate
    penological goals.
    As one of the “fundamental conditions” of Mississippi’s reentry to
    the Union following the Civil War, Congress forbade “the constitution of
    Mississippi” from ever being “amended or changed [so] as to deprive any
    citizen or class of citizens of the United States of the right to vote . . . except
    as a punishment for such crimes as are now felonies at common law, whereof
    28
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    they shall have been duly convicted.” Act of February 23, 1870, ch. 19, 
    16 Stat. 67
     (“Readmission Act”) (emphasis added). This condition on
    readmission, also imposed on other formerly Confederate states, was meant
    to address the nefarious tactics to restrict black suffrage already emerging in
    the Southern states despite the Fifteenth Amendment’s recent passage. See
    Oregon v. Mitchell, 
    400 U.S. 112
    , 167 n.18 (1970). Under the plain language of
    the Readmission Act, Mississippi may only alter its constitution to authorize
    disenfranchisement if it does so as a punishment for a common law felony
    offense. This fundamental condition on Mississippi’s power to enact a
    disenfranchisement scheme cannot be ignored: “the manner of [Section
    241’s] codification . . . [is] probative of the legislature’s intent.” Smith, 538
    U.S. at 94. Therefore, Section 241 of Mississippi’s 1890 Constitution—a
    post-Readmission Act felon disenfranchisement provision—must be
    construed as a punitive measure for felony convictions in order for the
    provision to comply with binding federal law. See Jones v. Governor of Fla.,
    
    950 F.3d 795
    , 819 (11th Cir. 2020) (concluding that “[d]isenfranchisement is
    punishment,” based in part on the fact that “the Readmission Act of Florida
    authorized felon disenfranchisement only as punishment.”) (emphasis in
    original).5
    5
    The dissent points out that the Eleventh Circuit reached a contrary conclusion in
    a different case, one involving whether an amendment to Alabama’s voter
    disenfranchisement law was retroactive punishment that violated the Ex Post Facto clause.
    Post at 62 (discussing Thompson v. Alabama, 
    65 F.4th 1288
    , 1300 (11th Cir. 2023). True, the
    Eleventh Circuit did conclude that Alabama’s new law—ratified by the state’s voters in
    1996—did not constitute punishment. 
    Id.
     at 1303–1308. But, contrary to the dissent’s
    claim, the Eleventh Circuit did not reach this conclusion despite the terms of the
    Readmission Act. The court never once mentioned the Readmission Act, let alone analyzed
    whether Alabama’s modern law was punitive in light of the limitations the Readmission
    Act placed on the state’s ability to disenfranchise its citizens. This case provides no support
    for the dissent’s decision to ignore the plain terms of Mississippi’s Readmission Act.
    29
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    Though there is historical evidence that some members of the 1890
    Mississippi Constitutional Convention viewed the Mississippi Readmission
    Act generally as an unconstitutional intrusion into Mississippi’s power to
    regulate elections,6 there is no evidence that the Convention viewed the
    Act’s limitation of disenfranchisement to cases of criminal punishment as
    invalid. More importantly, to conclude that Section 241 was not intended to
    impose punishment would require us to also conclude that Mississippi has
    been, and continues to be, in violation of the Readmission Act. Such a
    dramatic holding is not only unwarranted given the complete lack of evidence
    that Section 241 was intended to contravene the Readmission Act, but it
    would also expose Mississippi to broad liability for this violation. See Williams
    ex rel. J.E. v. Reeves, 
    954 F.3d 729
    , 739 (5th Cir. 2020) (allowing a claim that
    Mississippi violated the education provisions of the Readmission Act to
    proceed). Faced with the choice between reading Section 241 to comply with
    applicable federal law or reading it to violate the Readmission Act, we should
    “choose the interpretation . . . that has a chance of avoiding federal
    Indeed, as the Thompson court itself noted, “disenfranchisement can be penal or
    nonpenal.” Id. at 1303. “Accordingly, courts must determine the legislative intent behind
    the felon disenfranchisement statute or constitutional provision under consideration before
    holding that it is penal or nonpenal for constitutional purposes.” Id. And here in this case,
    we have strong evidence of intent that the Eleventh Circuit never considered—the plain
    text of Mississippi’s Readmission Act which prohibits disenfranchisement “except as a
    punishment for such crimes as are now felonies at common law.” It is no wonder the cases
    reach different conclusions.
    6
    The Convention’s Judiciary Committee produced a report implying that the
    “fundamental conditions” of readmission that the Act purported to impose on the State
    exceeded      Congress’s      constitutional    powers.    Proceedings    of      the
    Constitutional Convention at 83-87; see also William Alexander Mabry,
    Disenfranchisement of the Negro in Mississippi Vol 4. No. 3 Journal of Southern
    History 318, 325 (1938). Notably, this report concluded that franchise regulations like
    poll taxes and residency requirements were permitted under the Readmission Act. It was
    silent on the Act’s limitation of felon disenfranchisement to punishment.
    30
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    preemption.” Planned Parenthood of Houston and Se. Tex. v. Sanchez, 
    403 F.3d 324
    , 342 (5th Cir. 2005).7
    Neither the Secretary nor the dissent seriously engage with Plaintiffs’
    argument that the Readmission Act determines Section 241’s purpose. The
    Secretary asserts that Plaintiffs’ reliance on the Readmission Act to
    determine the Convention’s intent is “self-defeating” and “illogical”
    because the Act permits disenfranchisement as punishment, and therefore
    ultimately undermines Plaintiffs’ Eighth Amendment claim—an argument
    the dissent echoes. This argument attacks the wrong part of the analysis,
    failing to address the threshold question: whether Section 241’s
    disenfranchisement inflicts a punishment in the first place. As to that
    question, the Readmission Act’s authorization of disenfranchisement as
    punishment that the Secretary relies on supports Plaintiffs’ position that the
    law is punishment. The Secretary and dissent also argue that the plain text of
    Section 241’s criminal disenfranchisement provisions evinces no intention to
    punish and appears alongside nonpunitive regulations like age, competency,
    and residency requirements. We are unconvinced, however, that the
    disenfranchisement provisions’ mere placement alongside regulatory
    franchise provisions is strong evidence that the former were not intended as
    punishment. “The location and labels of a statutory provision do not by
    themselves transform a [criminal] remedy into a [civil] one.” Smith, 538 U.S.
    at 94 (2003); see also Babbitt v. Sweet Home Chapter of Communities for a Great
    Oregon, 
    515 U.S. 687
    , 702 (1995) (legislators can intend one provision of a law
    7
    The dissent wishes to ignore the Readmission Act, declaring that the question
    whether Mississippi would violate the Act by passing non-punitive disenfranchisement
    regulations “is not before us.” Post at 62. With respect, we fail to see how the dissent’s
    conclusion—that Mississippi’s disenfranchisement scheme is not punitive—would not
    immediately raise the question (and likely answer it) of whether the state had violated the
    terms of its readmission.
    31
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    to have “a character of its own not to be submerged by its association” with
    neighboring provisions). Finally, the Secretary argues in a footnote that
    reading the Readmission Act to impose limits on Mississippi’s power to
    disenfranchise—to read the Act to mean what it says—would violate the
    principle of “equal sovereignty,” citing to Shelby County v. Holder, 
    570 U.S. 529
     (2013). Shelby County, though, held no such thing. It expressly
    recognized that Congress “may draft” a law imposing burdens and
    limitations on some states and not others, and held merely that the method
    by which the Voting Rights Act did so was no longer justified given political
    and social changes since its formulation. 
    570 U.S. at 557
    .
    We think that Section 241 must be read in light of the explicit
    requirements of the Readmission Act that Mississippi may only
    disenfranchise persons as punishment for conviction of a common law felony.
    Considered in this light, there is clear proof that Section 241 was intended as
    punishment—indeed, there can be no other permissible intention under the
    Readmission Act.
    3.    Section 241 Violates Society’s Evolving Standards of Decency
    Having determined that Section 241 inflicts punishment, our next task
    is to determine whether its permanent denial of the franchise for conviction
    of an enumerated crime is “cruel and unusual” punishment under the Eighth
    Amendment as applied to Plaintiffs and their class. That is, we must decide
    whether this practice is in accord with “the evolving standards of decency
    that mark the progress of a maturing society.” Graham, 560 U.S. at 58. In
    undertaking this inquiry, we first consider whether “there is a national
    consensus” against the challenged punishment. Id. at 61. The Supreme
    Court has instructed that this determination “should be informed by
    objective factors to the maximum possible extent.” Atkins v. Virginia, 
    536 U.S. 304
    , 312 (2002) (internal quotation marks omitted). The “clearest and
    32
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    most reliable objective evidence of contemporary values is the legislation
    enacted by the country’s legislatures.” 
    Id.
     (internal quotation marks
    omitted); see also Graham, 560 U.S. at 61 (“The Court first considers
    objective indicia of society’s standards, as expressed in legislative
    enactments and state practice, to determine whether there is a national
    consensus against the . . . practice at issue.”) (internal quotation marks
    omitted). These benchmarks, however, are not completely dispositive of the
    matter. “[T]he Constitution contemplates that in the end our own judgment
    will be brought to bear on the question of the acceptability of [Mississippi’s
    voter disenfranchisement scheme] under the Eighth Amendment.” Coker v.
    Georgia, 
    433 U.S. 584
    , 597 (1977); see also Graham, 560 U.S. at 61 (same).8
    8
    In Graham v. Florida, the Supreme Court explained that the two-step analysis
    outlined above applies when a “case implicates a particular type of [punishment] as it
    applies to an entire class of offenders who have committed a range of crimes.” 560 U.S. at
    61. The Court uses this “categorical approach” in order to craft “categorical rules to define
    Eighth Amendment standards.” Id. at 60, 62. By contrast, in cases where the Court
    considers “a gross proportionality challenge to a particular defendant’s sentence,” its
    analysis “begin[s] by comparing the gravity of the offense and the severity of the sentence.”
    Id. at 60. In this case, it is not a particular defendant’s sentence but rather a punishment
    “itself [that] is in question.” Id. at 61. In other words, this case involves a “particular type
    of [punishment]”—permanent disenfranchisement—“as it applies to an entire class of
    offenders who have committed a range of crimes”—felons convicted of Section 241
    disenfranchising offenses who have completed all terms of their court-imposed sentences.
    Id. Accordingly, and in light of the fact that no party suggests otherwise, we follow the
    Court’s categorical approach to assessing this claim. Id.
    The dissent argues that the categorical approach is inapplicable because the
    Supreme Court has so far only applied that analysis to sentences of death and of life without
    parole. That is true, but all it proves is that this case presents a res nova question. Having
    concluded that Section 241 exacts a punishment, we must ascertain whether that
    punishment exceeds the limits of the Eighth Amendment. As discussed above, the
    Supreme Court has instructed that, when examining the constitutionality of a particular
    practice of punishment applied to a range of offenses, rather than a specific defendant’s
    sentence, courts should employ the categorical approach. Graham, 560 U.S. at 60–61. Such
    is the inquiry here, and so we follow the Supreme Court’s instruction. The dissent offers
    33
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    i.   National Consensus Against Permanent Disenfranchisement as a
    Punishment for Offenders Who Have Completed Their Sentences
    To assess whether there is a “national consensus” against the
    challenged punishment, we consider “objective indicia of society’s
    standards” as embodied in legislation, including not only the aggregate
    number of jurisdictions rejecting the punishment but also any consistent
    legislative trends in that direction. Graham, 560 U.S. at 62.
    Turning first to legislation, an exhaustive review of state laws shows
    that the overwhelming majority of states oppose the punishment of
    permanently disenfranchising felons who have completed all terms of their
    sentences. Currently, thirty-five states and the District of Columbia do not
    permanently disenfranchise felons. See Appendix infra. And four other states
    only permit permanent disenfranchisement for corrupt practices in elections
    or governance. Id. For example, Maryland permanently disenfranchises
    felons convicted for buying or selling votes, while Missouri does so only as a
    result of a conviction for an offense “connected with right of suffrage.” Md.
    Code, Elec. Law § 3-102(b); 
    Mo. Rev. Stat. § 115.133.2
    . Mississippi
    is one of only eleven states that still permanently disenfranchises felons for
    offenses other than those pertaining to elections. Put another way, thirty-nine
    states    plus   the    District    of   Columbia      do    not    impose      lifetime
    disenfranchisement as a punishment for offenses unrelated to protecting the
    honest administration of elections.
    Significantly, the Supreme Court has found a national consensus
    against a punishment when far fewer states than here opposed it. For
    no alternative other than to forgo the Eighth Amendment analysis completely. That we
    cannot do. “The Judiciary has the duty of implementing the constitutional safeguards that
    protect individual rights.” Trop v. Dulles, 
    356 U.S. 86
    , 103 (1958).
    34
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    example, in Atkins v. Virginia, the Court determined that a “national
    consensus ha[d] developed against” executing the “mentally retarded”9
    when thirty states had legislatively proscribed the practice. 536 U.S. at 321,
    326 (holding that executing members of this class of offenders is cruel and
    unusual). And the same number of states, thirty, had opposed the death
    penalty for juvenile offenders—either by “express provision [in legislation]
    or judicial interpretation”—when the Court held that practice to be cruel and
    unusual. See Roper v. Virginia, 
    543 U.S. 551
    , 564 (2005). Indeed, that only
    eleven states authorize the punishment challenged here closely resembles the
    statistics considered in Enmund v. Florida, in which the Court emphasized
    that the fact that only eight jurisdictions authorized the death penalty for
    participation in a robbery during which an accomplice commits murder
    “weigh[ed] on the side of rejecting capital punishment” for that offense. 
    458 U.S. 782
    , 793 (1982); see also Kennedy v. Louisiana, 
    554 U.S. 407
    , 426 as
    modified (Oct. 1, 2008) (holding that capital punishment for the crime of child
    rape violates the Eighth Amendment and observing that, “[t]hough our
    review of national consensus is not confined to tallying the number of States
    with applicable death penalty legislation, it is of significance that, in 45
    jurisdictions, petitioner could not be executed for child rape of any kind”).
    A national consensus that a punishment is cruel and unusual may be
    further evidenced by a clear and consistent trend in state legislatures to
    abandon the punishment, particularly in response to a court decision
    upholding the punishment’s validity. Roper, 
    543 U.S. 566
    –67 (explaining
    that, besides the sheer number of states rejecting a practice, the “consistency
    of the direction of change” is a significant factor in determining whether
    9
    The contemporary preferred terminology for such persons is people with
    intellectual or cognitive disabilities. See Hall v. Florida, 
    572 U.S. 701
    , 704 (2014).
    35
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    there is a national consensus against a practice). In Penry v. Lynaugh, for
    example, the Court held that the execution of the “mentally retarded” did
    not violate the Eighth Amendment. 
    492 U.S. 302
    , 334 (1989). The Court
    reasoned that the laws of sixteen states and the federal government10
    precluding the execution of this vulnerable class of persons were insufficient
    to show a national consensus against this practice. 
    Id. at 334
    . Thirteen years
    after Penry, the Court revisited that decision in Atkins. Again, the Court
    considered whether a national consensus existed against capital punishment
    for the “mentally retarded,” this time focusing primarily on the development
    of any consistent trends since Penry opposing this practice. What “was
    significant,” the Court explained, was “not so much the [total] number of
    these States” that had acted since Penry to ban executing members of this
    class of offenders—sixteen had done so—“but the consistency of the
    direction of change.” Atkins, 536 U.S. at 315. As the Court succinctly put it,
    “[m]uch ha[d] changed since” Penry, and, indeed, “a national consensus
    ha[d] developed” against the challenged practice in response to the earlier
    decision. Id. at 314, 316.
    Similarly, in Roper, which struck down the juvenile death penalty, the
    Court stressed the consistency of the direction of change in rejecting that
    practice. 543 U.S. at 568. Though only five states had abandoned juvenile
    executions in the fifteen years since the Supreme Court upheld the
    punishment in Stanford v. Kentucky, 
    492 U.S. 361
    , 370–71 (1989), the Roper
    Court followed Atkins’s admonition that what matters under the Eighth
    Amendment is “not so much” the absolute number of states that have
    abandoned a particular practice or the pace of that abandonment, but instead
    10
    Only two states and the federal government specifically prohibited executing the
    cognitively disabled, while fourteen other states prohibited the death penalty categorically.
    Penry, 
    492 U.S. at 334
    .
    36
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    the “consistency of the direction of change.” Id. at 566. Thus, the shift in
    state laws between Stanford and Roper, though smaller in number, was
    nonetheless “significant” because, as in Atkins, “the same consistency of
    direction of change ha[d] been demonstrated.” Id. at 565, 566.
    With regard to lifetime felon disenfranchisement, at the time the
    Supreme Court decided Richardson in 1974, twenty-seven states permitted
    the practice as applied to felons whose offenses were unrelated to elections
    or good governance and who had completed all terms of their sentences. See
    Appendix. Currently, only eleven do. Since Richardson, sixteen states have
    stopped the practice of imposing lifetime disenfranchisement on felons who
    have served their sentences for offenses unrelated to elections or governance.
    See Appendix. That is the exact number of states that changed their laws to
    reject the execution of the “mentally retarded” between Penry and Atkins.
    And it is more than threefold the total number of states that abolished the
    juvenile death penalty in the timespan between Stanford and Roper. The
    evidence clearly demonstrates “consistency [in] the direction of change,”
    and a repudiation of permanent felon disenfranchisement. Roper, 543 U.S. at
    566 (quoting Atkins, 536 U.S. at 315); see also Amicus Brief of the District of
    Columbia, et al., Community Success Initiative v. Moore, No. 331PA21 at 4–9
    (N.C. Aug. 17, 2022) (discussing the “clear and growing consensus among
    states” against permanent disenfranchisement). That a trend in abandoning
    a punishment has proven so durable and long-lasting demonstrates that
    society has truly turned away from that punishment. In this way, the steady
    rejection of permanent felon disenfranchisement over nearly half a century is
    as much, or even more, consistent than the change in the punishment laws
    considered in Atkins and Roper.
    In sum, the objective barometers of society’s standards—namely, the
    rejection of permanent felon disenfranchisement for offenses unrelated to
    elections and good governance by a clear majority of states and the
    37
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    consistency in the trend toward abolition of the practice—provide sufficient
    evidence of a national consensus against punishing felons by permanently
    barring them from the ballot box even when they have completed all terms of
    their sentences.
    The Secretary counters that there can be no national consensus
    against permanent felon disenfranchisement because many states
    disenfranchise felons for some period of time, such as during their period of
    incarceration or until completion of parole or probation. It is true that almost
    all states disqualify felons from voting at least while they are incarcerated or
    under supervision, Maine and Vermont being the exceptions. The dissent
    makes the same argument, asserting that there can be no national consensus
    when the states disenfranchise felons in such diverse ways. But this case does
    not concern the validity of temporary felon disenfranchisement laws, or the
    disenfranchisement of the incarcerated, or any other particular mode of
    disenfranchisement not contained in Section 241. In the present case, we are
    concerned solely with Mississippi’s practice of punishing felons who have
    completed all terms of their sentences by permanently disenfranchising them
    for life. And objective evidence makes clear that a supermajority of states
    reject this practice.
    The Secretary also emphasizes that Section 241 only permanently
    disenfranchises for the categories of felonies enumerated therein and that
    therefore individuals who commit felonies not included under Section 241
    are not disqualified from voting. But, having already determined that the state
    permanently disenfranchises as punishment, see supra part III.D.2, the fact
    that the state chooses not to exact this punishment against all felons is
    immaterial to our current analysis of whether a national consensus against
    this punishment exists. We need not, as the Secretary apparently invites us
    to do, go felony-by-felony, asking whether there is a national consensus
    against permanent disenfranchisement as a punishment for each specific
    38
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    felony offense.11 Rather, the objective indicia of society’s standards
    demonstrate that a consensus exists against meting out this sanction as a
    punishment, and the Secretary’s arguments to the contrary are unavailing.
    Based on the evidence before us, we conclude that our society has set its face
    against permanent disenfranchisement as a punishment.
    ii.   Independent Judicial Determination that Section 241 is Cruel and
    Unusual
    We must next “determine, in the exercise of our own independent
    judgment, whether [permanent disenfranchisement under Section 241] is a
    disproportionate punishment for” those Mississippians who have completed
    their sentences but remain permanently disenfranchised. Roper, 543 U.S. at
    564. This assessment requires us to consider “the severity of the punishment
    in question,” “the culpability of the offenders at issue in light of their crimes
    and characteristics,” and “whether the challenged . . . practice serves
    legitimate penological goals.” Graham, 560 U.S. at 67.
    Before undertaking this inquiry, we emphasize that the issue here is
    not, of course, whether the offenses listed in Section 241 warrant criminal
    sanction. Rather, the question is whether punishing an individual who has
    served the terms of his sentence by forever withholding from him the right to
    11
    If we were to accept the invitation to investigate Mississippi’s
    disenfranchisement scheme felony-by-felony, it would not stand the state in good stead.
    Section 241 lists a fraction of the hundreds of crimes on Mississippi’s books. That means
    that Mississippi citizens who are convicted of non-Section 241 offenses are not
    disenfranchised for life. Consequently, the Mississippi felons who remain permanently
    disenfranchised after serving all of their sentences are subjected to an especially cruel and
    unusual punishment as compared to Mississippi felons not convicted of Section 241 crimes
    and felons in states that do not engage in permanent disenfranchisement. And the Secretary
    has presented no evidence that any penological or other goals are furthered or justified by
    permanently disenfranchising only the felons convicted of the crimes encompassed in
    Section 241’s list.
    39
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    vote constitutes cruel and unusual punishment under the Supreme Court’s
    precedents and our own reasoning. And to determine whether this
    punishment is proportional to Plaintiffs’ offenses, it is first necessary to
    assess the importance of the right that Plaintiffs are denied. See Atkins, 563
    U.S. at 311 (“It is a precept of justice that punishment for crime should be
    graduated and proportioned to the offense.”) (cleaned up) (quoting Weems
    v. United States, 
    217 U.S. 349
    , 367 (1910)).
    In a democracy, the right to vote is a “fundamental political right”
    because it is “preservative of all rights.” Yick Wo v. Hopkins, 
    118 U.S. 356
    ,
    370 (1886); see also Burson v. Freeman, 
    504 U.S. 191
    , 198 (1992) (plurality
    opinion) (observing that the right to vote is “a right at the heart of our
    democracy”). “No right is more precious in a free country” than the right to
    vote. Reynolds v. Sims, 
    377 U.S. 533
    , 560 (1964). “Other rights, even the most
    basic, are illusory if the right to vote is undermined.” 
    Id.
     “A citizen without
    a vote is to a large extent one without a voice in decisions which may
    profoundly affect him and his family.” Rosario v. Rockefeller, 
    410 U.S. 752
    ,
    764 (1973) (Powell, J., dissenting).
    The Supreme Court’s soaring language on the right to vote makes
    clear two fundamental and interrelated points: (1) voting is the lifeblood of
    our democracy and (2) the deprivation of the right to vote saps citizens of
    their essential right to have a say in how and by whom they are governed.
    Permanent denial of the franchise, then, is an exceptionally severe penalty,
    constituting nothing short of the denial of the democratic core of American
    citizenship. It is an especially cruel penalty as applied to those whom the
    justice system has already deemed to have completed all terms of their
    sentences. These individuals, despite having satisfied their debt to society,
    are precluded from ever fully participating in civic life. Indeed, they are
    excluded from the most essential feature and expression of citizenship in a
    democracy—voting.
    40
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    Turning to the culpability of Plaintiffs’ class, we observe that Section
    241’s punishment applies equally to all members of the class, regardless of
    their underlying crime or the class member’s individual mental state during
    the commission of the crime. Section 241 disenfranchises murderers and
    timber thieves alike; it does not distinguish between mature adults and
    juveniles, accomplices, or the intellectually disabled—the latter three being
    classes of persons the Supreme Court has recognized as categorically less
    culpable. Roper, 543 U.S. at 570; Enmund, 458 U.S. at 800–801; Atkins, 536
    U.S. at 317–18. It is clear, then, that Section 241 does not reflect society’s
    measured response to a felon’s moral guilt. Rather, as the provision’s odious
    origins make clear, Section 241’s infliction of disenfranchisement on only
    certain offenders has nothing to do with their heightened culpability.
    Next, we consider whether the punishment of permanent
    disenfranchisement advances any legitimate penological goals. Graham, 560
    U.S. at 68. A punishment that “lack[s] any legitimate penological
    justification is by its nature disproportionate to the offense.” Id. at 71. The
    traditional justifications for punishment are incapacitation, rehabilitation,
    deterrence, and retribution. Id. at 71–74.
    Taking these in turn, incapacitation cannot support Section 241’s
    punishment because it does not incapacitate a convict from committing
    crimes; it only prevents him from voting. While felon disenfranchisement
    could potentially prevent recidivism if it were applied specifically to those
    convicted of voting-related offenses, Section 241, as discussed, applies to
    broad categories that are unrelated to elections crimes. And as to these
    categories of crimes, Section 241 does nothing to thwart a former felon from
    reoffending. Rather, the only conduct it incapacitates is voting. Further,
    there is evidence that disenfranchisement may actually increase recidivism.
    One comparative study found that “individuals who are released in states
    that permanently disenfranchise are roughly nineteen percent more likely to
    41
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    be rearrested than those released in states that restore the franchise post-
    release.” Guy Padraic Hamilton-Smith & Matt Vogel, The Violence of
    Voicelessness: The Impact of Felony Disenfranchisement on Recidivism, 22
    Berkeley La Raza L.J. 407, 426 (2012).
    Section 241 does not further the goal of rehabilitation. Lifetime
    disenfranchisement does not contribute to reforming an offender. Quite to
    the contrary, it hinders reintegration into society by denying voting, a
    cherished marker and right of citizenship. See Reynolds, 377 U.S. at 560. The
    Secretary has not argued otherwise, claiming that felon disenfranchisement’s
    precise purpose is to exclude a former felon from participation in this aspect
    of our society. There is “no more certain way in which to make a man in
    whom, perhaps, rest the seeds of serious antisocial behavior more likely to
    pursue further a career of unlawful activity than to place on him the stigma
    of the derelict, uncertain of many of his basic rights.” Trop v. Dulles, 
    356 U.S. 86
    , 111 (1958) (Brennan, J. concurring). This exclusion is not rehabilitative.
    If anything, it can only reinforce the stigma that the disenfranchised are
    “beyond redemption.” Pamela S. Karlan, Convictions and Doubts:
    Retribution, Representation, and the Debate over Felon Disenfranchisement, 
    56 Stan. L. Rev. 1147
    , 1166 (2004); see also Alec C. Ewald, “Civil Death”:
    The Ideological Paradox of Criminal Disenfranchisement Law in the United
    States, 
    2002 Wis. L. Rev. 1045
    , 1112–16 (2002) (discussing the republican
    case against disenfranchisement as anti-rehabilitative).
    For its part, deterrence only works if an individual is aware that a
    particular punishment attends a particular offense. It is questionable—and
    we have been presented with no evidence to suggest otherwise—to what
    extent Mississippians, and specifically those who would consider committing
    a crime covered by Section 241, are aware they could permanently lose the
    right to vote by virtue of a conviction. Moreover, it is unclear—and again we
    have been presented with no evidence that makes it clear—what marginal
    42
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    deterrent effect the prospect of losing the franchise has when a person
    committing a felony already faces the more immediate sanction of criminal
    confinement. Similarly, there is no reason to believe that the punishment of
    disenfranchisement will deter recidivism because the felon who has lost the
    franchise under Section 241 has lost it forever, regardless of his future
    conduct.
    That leaves retribution. While this is a “legitimate reason to punish,”
    Graham, 560 U.S. at 71, “the severity of the appropriate punishment
    necessarily depends on the culpability of the offender[.]” Atkins, 536 U.S. at
    319. We have explained that the continuing—indeed, unending—
    punishment Section 241 inflicts is wholly unrelated to the moral culpability
    of the diverse class of felons it applies to. Moreover, because the sentences
    imposed on Plaintiffs are necessarily ones that are capable of being
    completed, the criminal justice system has implicitly determined that
    Plaintiffs who served their sentences are capable of being returned to a
    position within society. And the fact that Plaintiffs have actually completed
    all terms of their sentences means that they merit being restored to their basic
    rights as citizens. To permanently remove from them the most precious right
    of citizenship is thus disproportionate to their offenses and cannot stand as a
    permissible exercise of retribution. See Roper, 543 U.S. at 564; Reynolds, 377
    U.S. at 561.
    For those adjudicated to have committed a crime enumerated in
    Section 241 and whose judicially imposed sentence has been completed, the
    provision tacks on an exceptionally severe penalty—one that is
    unconstitutional as to all it ensnares. Our nation has a tradition of fixing
    punishment to meet the crime. After a sentence is complete, the individual is
    said to have paid his debt to society. While some disabilities may attach to a
    felony conviction that persist beyond the criminal sentence, in a democracy,
    to deny the right to vote is to render one without a say in the manifold ways
    43
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    the government touches his life. That Mississippi denies this most precious
    right permanently, despite the felon’s sentence having been served, is
    disproportionate and inconsistent with the consensus against permanent
    disenfranchisement among state legislatures. The punishment of permanent
    disenfranchisement       also    contravenes    the   Eighth    Amendment’s
    proportionality principle because it lacks a nexus with any legitimate
    penological justification. See Miller, 
    567 U.S. 460
    , 489 (2012); Graham, 560
    U.S. at 71. Thus, insofar as it applies to those who have fulfilled all terms of
    their sentences, Section 241 is proscribed by the Eighth Amendment’s
    advancing standards of decency under the Constitution.
    VII.   Conclusion
    “No right is more precious in a free country” than the right to vote.
    Wesberry v. Sanders, 
    376 U.S. 1
    , 17 (1964). “Other rights, even the most basic,
    are illusory if the right to vote is undermined.” 
    Id.
     This right is not only
    fundamental to the democratic ordering of our society, it is also expressive of
    the dignity of American citizenship—that each person is an equal participant
    in charting our nation’s course. Reynolds, 377 U.S. at 533; Bush v. Gore, 
    531 U.S. 98
    , 104 (2000) (“[O]ne source of [the right to vote’s] fundamental
    nature lies in the equal weight accorded to each vote and the equal dignity
    owed to each voter.”).
    Mississippi denies this precious right to a large class of its citizens,
    automatically, mechanically, and with no thought given to whether it is
    proportionate as punishment for an amorphous and partial list of crimes. In
    so excluding former offenders from a basic aspect of democratic life, often
    long after their sentences have been served, Mississippi inflicts a
    disproportionate punishment that has been rejected by a majority of the
    states and, in the independent judgment of this court informed by our
    precedents, is at odds with society’s evolving standards of decency. Section
    44
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    241 therefore exacts a cruel and unusual punishment on Plaintiffs.
    Accordingly, we REVERSE the district court’s grant of summary judgment
    to the Secretary on Plaintiffs’ Eighth Amendment claim and RENDER
    judgment for Plaintiffs on that claim. The case is REMANDED with
    instructions that the district court grant relief declaring Section 241
    unconstitutional and enjoining the Secretary from enforcing Section 241
    against the Plaintiffs and the members of the class they represent.
    APPENDIX
    States with permanent criminal disenfranchisement penalties
    1974                2000                2020
    Alabama             Alabama             Alabama
    Alaska              Arizona             Arizona
    Arizona             California          Delaware
    Arkansas            Delaware            Florida
    California          Florida             Iowa
    Connecticut         Iowa                Kentucky
    Florida*            Kentucky            Maryland*
    Georgia             Maryland            Massachusetts*
    Idaho               Massachusetts*      Mississippi
    Iowa                Mississippi         Missouri*
    Kentucky            Missouri            Nebraska
    Louisiana           Nebraska            New Jersey*
    Maryland*           New Hampshire       Tennessee
    Massachusetts*      New Jersey*         Virginia
    Mississippi         New Mexico          Wyoming
    45
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    Missouri              New York
    Nebraska              Ohio*
    Nevada                Tennessee
    New Hampshire         Virginia
    New Jersey*           Washington
    New Mexico            Wyoming
    New York
    North Dakota
    Oklahoma
    Rhode Island
    South Carolina
    Tennessee
    Texas
    Utah*
    Virginia
    Washington
    Wyoming
    * Permanent disenfranchisement for election-related offenses only.
    States with permanent disenfranchisement penalties (with citations)
    1974                         2000                           2020
    State     Citation           State    Citation              State    Citation
    Alabama Ala. Const.          Alabama Ala. Const.            Alabama Ala. Const.
    art. VIII, §                  art. VIII sec.              art. VIII §
    182; Ala.                    177 (see also               177; Ala.
    Code tit. 17 §                 Amendment                   Code. § 15-
    15 (1958)                    579 (1996));                 22-36.1.
    Ala. Code.
    46
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    17-3-10
    (2000)
    Alaska     Ak. Const.       Arizona          Ariz. Const.     Arizona    Ariz. Rev.
    art. V § 2;                       art. 7 sec. 2;              Stat. § 13-
    Ak. Code §                         Ariz. Stat.                 908(A);
    15.05.030                         13-905, 13-                 Ariz. Rev.
    (1960)                             909-
    12 Stat. 13
    -
    (2000)                     907(A)
    Arizona     Ariz. Const.    California        Cal. Const.      Delaware   Del. Const.
    art. 7 § 2;                      art. 2 sec. 4;              art. 5 sec. 2
    Ariz. Rev.                        Cal. Penal
    Stat. § 16-                          Code
    101(5)                           4852.01,
    4852.17,
    4853 (2000)
    Arkansas    Ark. Const.     Delaware          Del. Const.       Florida   Fla. Const.
    art. 3 § 6                       art. 5 sec. 2,              art. VI, § 4;
    (1947)                            7; 15 Del.                Fla. Stat. §
    Code sec.                 944.292(1);
    1701, 5104                 Fla. Const.
    (2000)                   art. IV, § 8
    (a), (c)
    California    Cal. Const.     Florida           Fla. Stat.        Iowa     Iowa Const.
    art. 2 § 3                        97.041,                   art. 2 sec. 5
    (1972); Elec.                      944.292,
    Code §§ 310,                       944.293;
    321, 383,                       Fla. Const.
    389, 390;                       art. 6 sec. 4
    Ramirez v.                         (2000)
    Brown, 
    507 P.2d 1345
    ,
    1347 (Cal.
    1973)
    Connecti-     Conn. Rev.       Iowa            Iowa Const.      Kentucky   Ky. Const.
    cut         Stat. 9-46                       art. 2 sec. 5;               sec. 145
    (1973)                          Iowa Code
    sec. 48A.6
    (2000)
    47
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    Florida*    Fla. Const.     Kentucky          Ky. Const.       Mary-      Md. Elec.
    art. VI §. 4                     sec. 145; Ky.     land*      Code sec 3-
    (1973); Fla.                          Stat.                      102
    Code                            116.025
    97.041(5)                          (2000)
    Georgia      Ga. Const.     Maryland          Md. Const.       Massa-     Ma. Const.
    art. II § 2-                    art. 1 sec. 4;   chusetts*   art 3; Ma.
    701 (1945)                        Md. Code                   Gen. L. 51
    art. 33, sec.                  sec. 1
    3-102
    (2000)
    Idaho      Idaho Const.     Massa-           Ma. Const.       Missis-    Miss. Const.
    art. 6 § 3   chusetts*         art 3; Ma.        sippi      art. XII §
    (1947);                       Gen. L. 51                      241
    Idaho Code                      sec. 1 (2000)
    34-402
    (1949)
    Iowa       Iowa Const.     Missis-         Miss. Const.     Missouri*    Mo. Rev.
    art. 2 § 2      sippi           sec. 241;                     Stat. §
    Miss Code                     115.133.2
    23-5-35
    (1972)
    Kentucky     Ky. Const.     Missouri          Mo. Stat.       Nebraska    Neb. Rev.
    art. 145                         115.113                    Stat. § 29-
    (1955)                          (2000)                     112; § 32-
    313
    Louisiana    La. Const.     Nebraska          Neb. Stat.      New Jer-    N.J. Stat.
    art. 8 § 6                         32-313         sey*         19:4-1
    (1968)                           (2000);
    Ways v.
    Shively, 
    264 Neb. 250
    (2002)
    Mary-       Md. Const.       New            N.H. Const.      Tennes-     Tenn. Code
    land*        art. I § 2     Hamp-           Pt. 1 art. 11      see       Ann. § 40-
    (1972); Md.                         (2000)                     29-204
    Code. Art.
    shire
    33 ¶ 3-4
    (1974)
    Massa-      Mass. Gen.     New Jer-          N.J. Stat.      Virginia     Va. Const.
    chusetts*   Laws chp. 51     sey*              19:4-1                     art. II, § 1;
    § 1 (1972)                        (2000)                     art. V, § 12.
    48
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    Missis-    Miss. Const.      New           N.M. Stat.       Wyoming   W.S. Ann.
    sippi     § 241; Miss      Mexico         sec. 31-13-1                6-10-106;
    Code 23-5-35                      (2000)                   W.S. 7-13-
    (1972)                                                  105(a), (b);
    Wyo. Const.
    art. 4, § 5.
    Missouri     Mo. Rev.       New York        N.Y. Const.
    Stat.                        art. 2 sec. 3;
    111.021                         N.Y. Code
    (1969)                           5-106
    (2000)
    Nebraska    Neb. Const.      Ohio*           Ohio Stat.
    art. VI § 2;                    2961.01,
    Neb. Rev.                       3599.
    39 Stat. 29
    -                       (2000)
    112, 29-113
    (1974)
    Nevada      Nev. Const.     Tennes-         Tenn. Code
    art. 2 § 1;     see           40-29-105
    Nev. Rev.                       (2000)
    Stat.
    213.090,
    213.155
    New       N.H. Const.     Virginia         Va. Const.
    Hamp-          art. 11                     art. 2 sec. 1;
    (1970);                       Va. Code
    shire      N.H. Rev.                       53.1-231.
    2 Stat. 607
    -A-                      (2000)
    2 (1974)
    New Jer-      N.J. Rev.     Washing-            Wash.
    sey*       Stat. 19:4-1      ton           Const. art. 6
    (1971)                      sec. 3; RCW
    9.94A.637
    (2000);
    Madison v.
    State, 
    161 Wash. 2d 85
    (2007).
    New       N.M. Const.     Wyoming          Wyo. 6-10-
    Mexico     art. VII § 1                     106; 7-13-
    (1973)                         105 (2000)
    49
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    New York       N.Y. Elec.
    Law 152
    (1964)
    North Da-    N.D. Const.
    kota        art. V § 127
    (1960)
    Oklahoma     Okla. Const.
    art. III § 1
    (1974)
    Rhode Is-    R.I. Const.
    land         art. Am.
    XXXVIII
    (1973)
    South       S.C. Const.
    Carolina     art. 2 sec. 7;
    S.C. Code
    23-62 (1962,
    1975 Supp)
    Tennes-     Tenn. Const.
    see       art. 4 sec. 2 ;
    Tenn. Code
    2-205
    (1971);
    Texas       Tex. Const.
    art. 16 sec.
    2; Tex. Rev.
    Stat. art.
    5.01 (1967)
    Utah*      Utah Const.
    art. IV sec. 8
    (1971)
    Virginia      Va. Const.
    art. II sec. 2;
    Va. Code
    24.1-42
    (1973)
    Washing-        Wash.
    ton       Const. art. 6
    sec. 3 (1974);
    50
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    Wyoming     Wyo. Const.
    art. 6 sec. 6
    (1957); Wyo.
    Stat. 6-4
    (1957); Wyo.
    Stat. 7-311
    (1957)
    * Permanent disenfranchisement for election-related offenses only.
    51
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    Edith H. Jones, Circuit Judge, dissenting:
    The panel decision holds that Section 241 of the Mississippi Consti-
    tution, recently upheld in this court against another challenge,1 now fails the
    test of Eighth Amendment scrutiny, incorporated by the Fourteenth Amend-
    ment Due Process Clause. Because the majority never fully quotes the rele-
    vant provision, I begin with text, which states that a mentally competent in-
    habitant of Mississippi:
    who is a citizen of the United States of America, eighteen
    (18) years old and upward, who has been a resident of this state
    for one (1) year, and for one (1) year in the county in which he
    offers to vote, and for six (6) months in the election precinct or
    in the incorporated city or town in which he offers to vote, and
    who is duly registered as provided in this article, and who has
    never been convicted of murder, rape, bribery, theft, arson, ob-
    taining money or goods under false pretense, perjury, forgery,
    embezzlement or bigamy, is declared to be a qualified elector.
    MISS. CONST. Art. 12, § 241.
    Laws like this one have faced many unsuccessful constitutional chal-
    lenges in the past. When the Supreme Court ruled that the Equal Protection
    Clause does not bar states from permanently disenfranchising felons, it dis-
    pensed some advice to the losing parties:
    We would by no means discount these arguments if addressed
    to the legislative forum which may properly weigh and balance
    them. . . . But it is not for us to choose one set of values over
    the other. If respondents are correct, and the view which they
    advocate is indeed the more enlightened and sensible one, pre-
    sumably the people . . . will ultimately come around to that
    1
    Harness v. Watson, 
    47 F.4th 296
    , 311 (5th Cir. 2022) (en banc), pet. for cert. filed
    (Oct. 28, 2022) (No. 22-412).
    52
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    view. And if they do not do so, their failure is some evidence,
    at least, of the fact that there are two sides to the argument.
    Richardson v. Ramirez, 
    418 U.S. 24
    , 55, 
    94 S. Ct. 2655
    , 2671 (1974). In other
    words: go and convince the state legislatures. Do the hard work of persuading
    your fellow citizens that the law should change.
    Today, the court turns that advice on its head. No need to change the
    law through a laborious political process. The court will do it for you, so long
    as you rely on the Due Process Clause, rather than the Equal Protection Clause.
    With respect, this is not a road that the Constitution—or precedent—allows
    us to travel. I dissent.2
    I.
    Section One of the Fourteenth Amendment guarantees “due pro-
    cess” and “equal protection of the laws.” U.S. CONST. amend. XIV § 1.
    After a long process of exegesis, it is settled that the Due Process Clause in-
    corporates much of the Bill of Rights, and state governments must respect
    protections like the Eighth Amendment’s prohibition of cruel and unusual
    punishment. See McDonald v. City of Chicago, 
    561 U.S. 742
    , 763, 
    130 S. Ct. 3020
    , 3034 (2010).
    Section Two of the Fourteenth Amendment is less familiar but more
    specific. It reduces the number of representatives in Congress to which a
    state is entitled if that state disenfranchises any of its male, non-Indian citi-
    zens over the age of 21. But there is a single exception: states may not be
    penalized for disenfranchising a citizen “for participation in rebellion, or other
    crime.” U.S. CONST. amend. XIV § 2 (emphasis added). The carve-out
    2
    To be precise, I do not quarrel with the holding that Plaintiffs have standing to
    challenge Section 241 of the state constitution but not Section 253. And like the majority,
    I need not separately address the plaintiffs’ First Amendment claim, which is inextricably
    bound with my conclusions regarding the Eighth Amendment.
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    reflects a long tradition in this country, and before that, in British law, and
    before that, in the Western world.3 This tradition can be summed up in
    Lockean terms: if a person breaks the laws, he has forfeited the right to par-
    ticipate in making them. See Green v. Bd. of Elections of N.Y.C., 
    380 F.2d 445
    ,
    451 (2d Cir. 1967) (Friendly, J.).
    Despite Section Two’s explicit allowance of felon disenfranchise-
    ment, plaintiffs alleged in Richardson that California’s felon disenfranchise-
    ment law violated Section One’s Equal Protection Clause. The Supreme
    Court rejected the argument as it held that the specific language in Section
    Two casts light on the generalities of Section One. 
    418 U.S. at 43
    , 
    94 S. Ct. at 2665
     (finding persuasive the petitioner’s argument that “those who
    framed and adopted the Fourteenth Amendment could not have intended to
    prohibit outright in [Section One] of that Amendment that which was ex-
    pressly exempted from the lesser sanction of reduced representation imposed
    by [Section Two] of the Amendment.”).
    The plaintiffs in today’s case differ from those in Richardson in only
    one way: they allege that Mississippi’s felon disenfranchisement law violates
    Section One’s Due Process Clause. Their reasoning, and the majority’s
    holding, relies on three propositions. One is the undisputed rule that the Due
    Process Clause incorporates the Eighth Amendment’s prohibition against
    cruel and unusual punishments. But the other two propositions are false.
    Contrary to the majority, Richardson’s ruling extends beyond the Equal Pro-
    tection context, and felon disenfranchisement is not a cruel and unusual pun-
    ishment. I address each faulty proposition in turn.
    3
    For a brief summary of that tradition, see George Brooks, Felon
    Disenfranchisement: Law, History, Policy, and Politics, 32 FORDHAM URB. L.J. 851, 852-61
    (2005).
    54
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    II.
    To begin with, Richardson v. Ramirez controls this case. Its holding
    did not rest on which part of Section One was invoked by the plaintiffs, but
    “on the demonstrably sound proposition that [Section One], in dealing with
    voting rights as it does, could not have been meant to bar outright a form of
    disenfranchisement which was expressly exempted from the less drastic
    sanction of reduced representation which [Section Two] imposed for other
    forms of disenfranchisement.” 
    Id. at 55, 2671
    . This is far from the only lan-
    guage in the opinion that has applicability beyond the Equal Protection
    Clause. See Richardson, 
    418 U.S. at 43
    , 
    94 S. Ct. at 2665
     (“[T]hose who
    framed and adopted the Fourteenth Amendment could not have intended to
    prohibit outright in [Section One] . . . that which was expressly exempted
    from . . . [Section Two] of the Amendment.”); 
    id. at 54, 2670
     (relying on the
    “settled historical and judicial understanding of the Fourteenth Amendment’s
    effect on state laws disenfranchising convicted felons”) (emphasis added); 
    id. at 55, 2671
     (urging would-be reformers to petition the state legislatures rather
    than the courts); 
    id. at 48, 2668
     (focusing “on the understanding of those
    who framed and ratified the Fourteenth Amendment” as a whole). On this
    logic, it is irrelevant what clause of Section One is cited by plaintiffs. None
    of its provisions can be understood to bar what Section Two plainly allows.
    It changes nothing that plaintiffs rely on Eighth Amendment prece-
    dent. That precedent is made applicable to Mississippi via the Due Process
    Clause. Robinson v. California, 
    370 U.S. 660
    , 667, 
    82 S. Ct. 1417
    , 1421 (1962).
    Therefore, the Eighth Amendment right asserted by plaintiffs cannot exceed
    the scope of the Due Process Clause.
    Even if the Eighth Amendment right were considered on its own
    terms, Richardson’s reading of Section Two must still guide our interpreta-
    tion of its scope. As interpreters of the Constitution, judges must seek “a fair
    construction of the whole instrument.” McCulloch v. Maryland, 17 U.S. (4
    55
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    Wheat.) 316, 406 (1819). All of its provisions “should be interpreted in a way
    that renders them compatible, not contradictory.” ANTONIN SCALIA &
    BRYAN A. GARNER, READING LAW: THE INTERPRETATION OF LEGAL TEXTS
    180 (2012) (“READING LAW”). Yet the majority’s interpretation renders the
    Section Two proviso meaningless. It is useless for the Fourteenth Amend-
    ment to authorize felon disenfranchisement if the practice is made illegal by
    the Eighth. The canon against surplusage warns us against such unnatural
    readings. Id. at 174.
    Thus, the Cruel and Unusual Punishments Clause should not be un-
    derstood to prohibit what “the explicit language of the Constitution affirma-
    tively acknowledges” elsewhere as legitimate. Furman v. Georgia, 
    408 U.S. 238
    , 380, 
    92 S. Ct. 2726
    , 2799 (1972) (Burger, C.J., dissenting); see also Gregg
    v. Georgia, 
    428 U.S. 153
    , 177, 
    96 S. Ct. 2909
    , 2927 (1976) (approving capital
    punishment under certain circumstances). Cf. Lassiter v. Northampton Cnty.
    Bd. of Elections, 
    360 U.S. 45
    , 51, 
    79 S. Ct. 985
    , 990 (1959) (stating that a
    “criminal record” is one of the “factors which a State may take into consid-
    eration in determining the qualifications of voters.”); Romer v. Evans,
    
    517 U.S. 620
    , 634, 
    116 S. Ct. 1620
    , 1628 (1996) (“that a convicted felon may
    be denied the right to vote . . . is” an “unexceptionable” proposition). Fol-
    lowing this rule, this court and others have concluded without reservation
    that “a state has the power to disenfranchise persons convicted of a felony,”
    even permanently. Shepherd v. Trevino, 
    575 F.2d 1110
    , 1112 (5th Cir. 1978).4
    4
    See also Jones v. Governor of Fla., 
    950 F.3d 795
    , 801 (11th Cir. 2020) (“Regardless
    of the political trend toward re-enfranchisement, there is nothing unconstitutional about
    disenfranchising felons—even all felons, even for life.” (citing Richardson, 
    418 U.S. at 56
    ));
    Hayden v. Pataki, 
    449 F.3d 305
    , 316 (2d Cir. 2006) (“The Supreme Court has ruled that,
    as a result of th[e] language of [Section 2], felon disenfranchisement provisions are
    presumptively constitutional.”).
    56
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    It is true that “provisions that grant Congress or the States specific
    power to legislate in certain areas . . . are always subject to the limitation that
    they may not be exercised in a way that violates other specific provisions of
    the Constitution.” Williams v. Rhodes, 
    393 U.S. 23
    , 29, 
    8 S. Ct. 5
    , 9 (1968).
    For example, a state may not disenfranchise felons with racially discrimina-
    tory intent. Hunter v. Underwood, 
    471 U.S. 222
    , 233, 
    105 S. Ct. 1916
    , 1922
    (1985).5 Likewise, as the majority recognizes, the Thirteenth Amendment
    bars involuntary servitude “except as a punishment for crime.” U.S. CONST.
    amend. XIII. Nevertheless, certain involuntary work requirements imposed
    on convicted criminals may violate the Cruel and Unusual Punishments
    Clause. Williams v. Henagan, 
    595 F.3d 610
    , 622 n. 18 (5th Cir. 2010).
    But that principle places a “limitation” on the “exercise” of a legiti-
    mate power; it cannot void the power entirely. Williams, 393 U.S. at 29,
    89 S. Ct. at 9. Today’s ruling goes far beyond Hunter’s holding that felon
    disenfranchisement must be exercised in accord with the Constitution. The
    majority concludes that the “punishment of permanent disenfranchise-
    ment” is entirely unconstitutional. This unjustifiably creates an internal con-
    flict in the Constitution by holding that the Eighth Amendment preempts
    Section Two of the Fourteenth Amendment.
    Moreover, even if this court found a conflict between the Eighth
    Amendment and Section Two of the Fourteenth—which, to restate emphat-
    ically, it should not have done—the established canons of interpretation dic-
    tate that Section Two should be given effect. It is both more specific and later
    in time than the Eighth Amendment. If “there is a conflict between a general
    5
    To clarify a point for confused readers: this is not an issue in today’s case. Sitting
    en banc, this court has already held that the current version of Section 241 was not enacted
    with discriminatory intent—a finding the majority neglects to mention in its long and
    irrelevant discussion of Mississippi’s sordid constitutional history. See Harness, 47 F.4th
    at 311.
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    provision and a specific provision, the specific provision prevails.” READING
    LAW at 183. “While the implication of a later enactment will rarely be strong
    enough to repeal a prior provision, it will often change the meaning that
    would otherwise be given to an earlier provision that is ambiguous.” Id. at
    330. And a “provision that flatly contradicts an earlier-enacted provision re-
    peals it.” Id. at 327.
    Careening past all these standard interpretive guardrails, the majority
    circumvents Richardson, while purporting not to abrogate it, based on the
    “evolving standards of decency.” Trop v. Dulles, 
    356 U.S. 86
    , 101, 
    78 S. Ct. 590
    , 598 (1958). I am unaware of any case, ever, in which a lower federal
    court has declared a Supreme Court decision overtaken by subsequent
    events—without being quickly overruled. At the time Richardson was issued,
    no one would have construed the Eighth Amendment to prevent felon disen-
    franchisement. Indeed, in Richardson, the Court cited “settled historical and
    judicial understanding.” 
    418 U.S. at 54
    , 
    94 S. Ct. at
    2670 The Court cited
    three of its decisions stretching back to the end of the nineteenth century that
    approvingly referenced felon disenfranchisement, and the Court twice af-
    firmed three-judge court rulings in 1968 and 1973 that rejected challenges to
    such laws. See 
    id.
     at 53–54, 2670. It is not for this court to say this wealth of
    authority has become outmoded. See Agostini v. Felton, 
    521 U.S. 203
    , 207,
    
    117 S. Ct. 1997 (1997)
     (“The Court neither acknowledges nor holds that other
    courts should ever conclude that its more recent cases have, by implication,
    overruled an earlier precedent. Rather, lower courts should follow the case
    which directly controls, leaving to this Court the prerogative of overruling its
    own decisions.”).
    III.
    Even if Richardson had never been decided, the majority opinion
    would still be inconsistent with precedent and the meaning of the Eighth
    58
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    Amendment. Felon disenfranchisement is neither cruel, nor unusual, nor a
    punishment.
    A.
    First, the majority incorrectly concludes that Mississippi’s felon dis-
    enfranchisement law is a “punishment” for Eighth Amendment purposes.
    The majority correctly recites the two-part test for determining whether
    something is a “punishment” under the meaning of the Constitution. See
    Smith v. Doe, 
    538 U.S. 84
    , 92, 
    123 S. Ct. 1140
    , 1147 (2003). Courts initially
    ascertain whether “the intention of the legislature was to impose punish-
    ment.” Smith, 538 U.S. at 92, 123 S. Ct. at 1147. If so, “that ends the in-
    quiry.” Id. “If, however, the intention was to enact a regulatory scheme that
    is civil and nonpunitive, we must further examine whether the statutory
    scheme is so punitive either in purpose or effect as to negate [the State’s]
    intention to deem it ‘civil.’” Id. (quotation marks omitted).
    The majority neglects, however, to mention that the Supreme Court
    has already signaled that felon disenfranchisement is not a punishment. In
    Trop v. Dulles, the plurality wrote the following:
    A person who commits a bank robbery, for instance, loses his
    right to liberty and often his right to vote. If, in the exercise of
    the power to protect banks, both sanctions were imposed for
    the purpose of punishing bank robbers, the statutes authorizing
    both disabilities would be penal. But because the purpose of the
    latter statute is to designate a reasonable ground of eligibility for
    voting, this law is sustained as a nonpenal exercise of the power to
    regulate the franchise.
    356 U.S. at 96–97, 78 S. Ct. at 596 (emphasis added).6 On the strength of this
    language, three other circuits have categorically held that felon
    6
    The Trop Court was ruling in the context of the Ex Post Facto Clause. But
    because we assume the Constitution uses the word “punishment” consistently, the test for
    59
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    disenfranchisement is nonpenal.7 Only the Eleventh Circuit has departed
    from this categorical holding. Thompson v. Alabama, 
    65 F.4th 1288
    , 1304
    (11th Cir. 2023) (charging the other circuits with “a misreading of Trop.”). I
    am inclined to agree with the majority of circuits that Trop assumes disen-
    franchisement cannot be punishment. But even the Eleventh Circuit’s rea-
    soning cannot offer comfort to the majority. That court still concluded after
    applying the relevant test that Alabama’s disenfranchisement law, which has
    a history and structure very similar to that of Mississippi’s, was nonpenal. Id.
    at 1308.
    Considering the text and structure of Section 241 demonstrates that it
    was not intended as a penal measure. The majority gives short shrift to these
    considerations, which ought to have been its primary focus. Doe, 538 U.S. at
    92, 123 S. Ct. at 1147. To reiterate its language, this constitutional provision
    states that a mentally capable person:
    who is a citizen of the United States of America, eighteen (18)
    years old and upward, who has been a resident of this state for
    one (1) year, and for one (1) year in the county in which he of-
    fers to vote, and for six (6) months in the election precinct or
    in the incorporated city or town in which he offers to vote, and
    who is duly registered as provided in this article, and who has
    identifying constitutional “punishments” is the same for the Ex Post Facto Clause, the
    Eighth Amendment, and the Double Jeopardy Clause. Does 1-7 v. Abbott, 
    945 F.3d 307
    , 313
    (5th Cir. 2019).
    7
    Simmons v. Galvin, 
    575 F.3d 24
    , 43 (1st Cir. 2009) (“The Supreme Court has
    stated that felon disenfranchisement provisions are considered regulatory rather than
    punitive.”); Johnson v. Bredesen, 
    624 F.3d 742
    , 753 (6th Cir. 2010) (“Moreover, in Trop v.
    Dulles, the Supreme Court expressly stated that felon disenfranchisement laws serve a
    regulatory, non-penal purpose. Accordingly, as a matter of federal law, disenfranchisement
    statutes do not violate the Ex Post Facto Clause of the U.S. Constitution.”); Green, 380
    F.2d at 450 (“Depriving convicted felons of the franchise is not a punishment but rather is
    a ‘nonpenal exercise of the power to regulate the franchise.’” (quoting Trop, 356 U.S. at
    97, 78 S. Ct. at 596)).
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    never been convicted of murder, rape, bribery, theft, arson, ob-
    taining money or goods under false pretense, perjury, forgery,
    embezzlement or bigamy, is declared to be a qualified elector.
    MISS. CONST. Art. 12, § 241. This provision does not so much as hint at a
    punitive intent toward felons any more than it implies an intent to punish
    non-citizens, short-term residents of Mississippi, those unregistered to vote,
    or those under the age of eighteen. It does not even single out felons for dis-
    qualification from the franchise—it merely defines the franchise in such a
    way as to exclude them from its bounds.8 Moreover, Section 241 is part of
    the Mississippi Constitution’s Article 12, which outlines the procedures for
    elections, not the punishment of criminals. By its own terms, Section 241 is
    a nonpenal exercise of Mississippi’s regulatory authority over the franchise.
    The majority opinion attempts to shift focus by pointing to language
    from the Readmission Act. That act barred Mississippi from depriving “any
    citizen or class of citizens” of the right to vote “except as a punishment.”
    Act of February 23, 1870, ch. 19, 16 STAT. 67. The majority opinion worries
    that, if this court does not classify disenfranchisement as punishment, it
    would call into question whether Mississippi was properly readmitted to the
    Union, because Mississippi would therefore be depriving a class of citizens
    of the right to vote for a reason other than punishment. Hence, the majority
    concludes, any felon disenfranchisement that occurs in Mississippi is per se
    punitive for Eighth Amendment purposes.
    8
    Compare Mississippi’s Section 241 with a portion of the Alabama Constitution
    recently upheld as a nonpenal regulation of the franchise: “No person convicted of a felony
    involving moral turpitude, or who is mentally incompetent, shall be qualified to vote until
    restoration of civil and political rights or removal of disability.” ALA. CONST. Art. VIII,
    § 177. The Eleventh Circuit found this text sufficient to indicate “a preference that
    [Alabama’s] felon disenfranchisement provision be considered civil instead of criminal.”
    
    Thompson, 65
     F.4th at 1305.
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    But the Readmission Act is not a license to find that the intent of Sec-
    tion 241 was per se penal. Indeed, the Eleventh Circuit was briefed on the
    substantially identical text of Alabama’s Readmission Act, yet nevertheless
    held that the Alabama Constitution’s disenfranchisement provision was non-
    penal. 
    Thompson, 65
     F.4th at 1305. Simply put, the question whether Mis-
    sissippi violated the Readmission Act is separate from the issue before us and
    involves a completely different set of interpretive questions. We are not
    obliged to interpret the word “punishment” to mean the same thing in the
    Eighth Amendment as in the Readmission Act—unlike our obligation to use
    the same definition for the Ex Post Facto Clause and the Eighth Amendment.
    It could well be that “punishment” in the Act merely means “consequence
    of a crime,” rather than “punitive.” But the proper interpretation of the
    Readmission Act is not before us. All this court may do is apply the definition
    of “punishment” used for Eighth Amendment purposes to the law at hand.
    When the provision’s text and structure are considered, and prece-
    dent is consulted, it becomes obvious that Section 241 is not intended as a
    punishment. The majority disregards these sources, choosing instead to rely
    on the text of the Readmission Act—which ironically was meant to recognize
    the very authority this court now repudiates. Punitive intent cannot be found
    on these facts.9
    B.
    The majority seemingly establishes a categorical rule that permanent
    felon disenfranchisement is cruel and unusual punishment. True, there is a
    passing mention that Mississippi’s law is unconstitutional “as applied to
    9
    The majority forbears analysis of the second prong of the test—whether the
    provision is so punitive as to negate the state’s intention. I need not address that prong
    either. But I found no compelling arguments from the plaintiffs as to why Section 241 ought
    to be considered “punishment.”
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    Plaintiffs and their class.” But the majority opinion immediately proceeds to
    apply the test used to determine whether a punishment is categorically cruel
    and unusual. See United States v. Farrar, 
    876 F.3d 702
    , 717 (5th Cir. 2017).
    And its language and reasoning are hardly constrained to the facts of the case.
    If courts were allowed to interpret “cruel and unusual” in line with
    the original meaning of those terms, there is no question that felon disenfran-
    chisement would be neither cruel nor unusual. But in Trop, the Supreme
    Court held that the “Amendment must draw its meaning from the evolving
    standards of decency that mark the progress of a maturing society.” 356 U.S.
    at 101, 78 S. Ct. at 598. In cases involving categorical rules against a type of
    punishment, this involves two steps. First, courts consider “objective indicia
    of society’s standards, as expressed in legislative enactments and state prac-
    tice, to determine whether there is a national consensus against the sentenc-
    ing practice at issue.” Graham v. Florida, 
    560 U.S. 48
    , 61, 
    130 S. Ct. 2011
    ,
    2022 (2010) (quotation marks omitted), as modified (July 6, 2010). Second,
    courts “determine, in the exercise of our own independent judgment,
    whether [the practice] is a disproportionate punishment.” Roper v. Simmons,
    
    543 U.S. 551
    , 564, 
    125 S. Ct. 1183
    , 1192 (2005). This assessment includes
    consideration of “the severity of the punishment in question,” “the culpa-
    bility of the offenders at issue in light of their crimes and characteristics,”
    and “whether the challenged . . . practice serves legitimate penological
    goals.” Graham, 560 U.S. at 67.
    In applying this line of cases, the majority stretches precedent beyond
    the breaking point. As this court has recognized, categorical analysis has only
    been used to declare a narrow and well-defined range of punishments cruel
    and unusual. “The [Supreme] Court has undertaken categorical analysis
    only for death-penalty cases and those involving juvenile offenders sentenced
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    to life-without-parole.” Farrar, 
    876 F.3d at 717
    .10 The ability to vote, though
    assuredly important, is in no way analogous to death or a minor’s life impris-
    onment. In fact, courts have uniformly refused to extend the compass of
    “cruel and unusual” punishments beyond the Supreme Court’s rulings. 
    Id.
    (stating it “would be improper to undertake a categorical analysis” where the
    court “never established a categorical rule prohibiting” a practice). Depri-
    vation of the right to vote is not the kind of interest that this narrow category
    of cases is meant to protect.
    In addition, applying categorical analysis here leads to endless confu-
    sions. The problems begin when the majority attempts to identify a “national
    consensus” against permanent felon disenfranchisement using the “objec-
    tive indicia” of state laws on the subject. Graham, 560 U.S. at 61, 130 S. Ct.
    at 2022. And the unsuitability of categorical analysis becomes even clearer
    once the majority proceeds to find Section 241 unconstitutional in its “inde-
    pendent judgment.” Id.
    Because no two states share the same voting laws, it is not hard to find
    a “national consensus” against any one state’s practices. As the majority’s
    appendix illustrates, a few states always or usually allow voting during incar-
    ceration. Some states allow felons to vote after their release. Some allow
    voting after they complete a prison term, probation, and parole. Some re-
    quire felons to first pay all owed fines and restitution. Some have statutorily
    defined waiting periods. And some, like Mississippi, permanently disenfran-
    chise felons. Moreover, this list does not even begin to delve into the
    10
    See also United States v. Cobler, 
    748 F.3d 570
    , 580–81 (4th Cir. 2014) (“The
    present case involves neither a sentence of death nor a sentence of life imprisonment
    without parole for a juvenile offender, the only two contexts in which the Supreme Court
    categorically has deemed sentences unconstitutionally disproportionate.”); United States
    v. Walker, 
    506 F. App’x 482
    , 489 (6th Cir. 2012) (finding categorical analysis “does not
    apply in cases where the defendant receives a sentence that is ‘less severe’ than a life
    sentence.”).
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    intricacies of these laws, such as which felonies they cover and the proce-
    dures for the restoration of voting rights. A reasonably clever lawyer could
    find a dozen ways to divvy up states and find a national consensus against any
    particular practice.
    Even worse, the majority opinion fails to offer a defensible bright line.
    If the importance of voting rights makes Section 241 cruel and unusual, then
    why would any form of post-incarceration disenfranchisement be constitu-
    tional? For that matter, why would disenfranchisement during incarceration
    be constitutional? To point to the length of the disenfranchisement does not
    resolve the matter, because in the vast majority of states, a felon can be incar-
    cerated for life—and thereby forfeit, for life, his right to vote.
    In an effort to avoid some of these problems, the majority does not
    quite hold that Mississippi can never permanently disenfranchise a felon. So
    long as a felon is serving time in prison, the court implies, it is permissible to
    strip his right to vote. Accordingly, not only may the person be disenfran-
    chised for life due to a life prison term, but the death sentence carries the
    same result. The panel admits theirs is an “odd” result, in holding that dis-
    enfranchisement violates the Eighth Amendment when neither life imprison-
    ment nor capital punishment does so.
    The better term, in my view, would be “incoherent.” According to
    the majority’s reasoning, a state can sentence rapists to life in prison, mean-
    ing they can never vote—but if they are spared and eventually released, they
    must be allowed to vote. A state can execute murderers, but it may not keep
    them from voting if they are released from prison. In other words, permanent
    disenfranchisement is fine—so long as it is accompanied by a life sentence or
    death. But how could adding these sanctions make the loss of voting rights
    less cruel or unusual? The majority has no credible explanation why the
    Eighth Amendment permits the harsher outcome yet prohibits the milder.
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    The argument that criminals who served their prison sentences have
    paid their debt to society offers no analytical safe harbor. The consequences
    of committing a felony rarely end at the prison walls. Many felons are subject
    to considerable limits on their freedom to move about and work during pro-
    bation. Sexual offenders are often required to register for the protection of
    those around them. Cf. Smith v. Doe, 
    538 U.S. 84
    , 90, 
    123 S. Ct. 1140
    , 1145
    (2003) (finding such requirements nonpenal). Those with a criminal history
    are often obliged to report it to potential employers. They may be barred
    from some occupations entirely, including some forms of public office. Fel-
    ons may not legally possess firearms. Completing a prison sentence does not
    entitle felons to all the rights they previously possessed.11
    Because Section 241, rightly interpreted, does not impose a punish-
    ment, and because applying categorical analysis in this case is unprecedented
    and illogical, it is unnecessary to address the majority’s exercise of “inde-
    pendent judgment” in detail. Instead, I will merely note that the majority’s
    discussion of “severity” illustrates the flaws in its approach. As already dis-
    cussed, categorical analysis is meant for punishments of the highest sever-
    ity—execution or life imprisonment. Farrar, 
    876 F.3d at 717
    . Whatever its
    merits, disenfranchisement of felons is not of the same degree. The majority
    rightly extols the role of voting in a democratic society, but it cannot cite a
    single case to accord with its conclusion that disenfranchisement rises to the
    level of cruel and unusual punishment. The majority’s conclusion, in short,
    11
    Of course, the majority’s “paid their debt to society” reasoning would provide
    fodder for a wealth of Eighth Amendment-based litigation challenging these additional
    adverse consequences of felon status. That situation would turn the alleged constitutional
    uniqueness of the plaintiff’s First Amendment right to vote into a general weapon against
    state criminal justice policies. The prohibition on “cruel and unusual punishments” would
    be effectively mutated into a “harmful and unfair” provision.
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    is the product of judicial willfulness, not judgment. Cf. THE FEDERALIST
    NO. 78, at 405 (Alexander Hamilton) (George W. Carey & James McClellan,
    Eds., 2001). And the majority essentially gives away the game when it ques-
    tions the “marginal deterrent effect the prospect of losing the franchise has
    when a person committing a felony already faces the more immediate sanc-
    tion of criminal confinement.”12 The other factors—the culpability of the
    plaintiffs and the penological goals of the law—are equally inapplicable where
    the law at issue does not impose a punishment at all.
    IV.
    Today’s ruling disregards text, precedent, and common sense to se-
    cure its preferred outcome. This end-justifies-means analysis has no place in
    constitutional law. I respectfully dissent.
    12
    The majority also turns the plaintiffs’ burden of proof upside-down by charging
    the defendants with failing to present evidence of a deterrent effect on felons.
    67