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Harness v. Hosemann

United States District Court, S.D. Mississippi, Northern Division

February 13, 2019

ROY HARNESS, ET AL. PLAINTIFFS
v.
DELBERT HOSEMANN, SECRETARY OF STATE OF MISSISSIPPI DEFENDANT DENNIS HOPKINS, ET AL. PLAINTIFFS
v.
DELBERT HOSEMANN, SECRETARY OF STATE OF MISSISSIPPI DEFENDANT

          ORDER

          Daniel P. Jordan III CHIEF UNITED STATES DISTRICT JUDGE

         This consolidated action to restore the voting rights of convicted felons is before the Court on the Hopkins Plaintiffs' motion for class certification under Federal Rule of Civil Procedure 23 [44]. Defendant Secretary of State Delbert Hosemann acknowledges that Plaintiffs meet all of Rule 23's stated requirements but argues that certification is unnecessary and therefore opposes it. Because Plaintiffs satisfy the plain text of Rule 23, the Court finds that the motion for class certification should be granted but the description of the class should be modified.

         I. Facts and Procedural History The Hopkins Plaintiffs seek class certification to challenge two sections of the Mississippi Constitution--sections 241 and 253. Under section 241, individuals who have been “convicted of murder, rape, bribery, theft, arson, obtaining money or goods under false pretense, perjury, forgery, embezzlement[, ] or bigamy” are ineligible to vote. And section 253 allows the legislature to restore an individual's suffrage by “a two-thirds vote of both houses, of all members elected.”

         Plaintiffs say the lifetime voting ban violates the Eighth Amendment's prohibition of cruel and unusual punishment and the Fourteenth Amendment, which only permits states to temporarily “abridge” an individual's right to vote based on participation in a crime. Compl. [1] (filed in 3:18-CV-188-DPJ-FKB) at 4-5. They also contend that the mechanism to restore voting rights violates the Equal Protection Clause of the Fourteenth Amendment and the First Amendment. Id. at 5.

         As relief, Plaintiffs generally seek (1) class-wide declarations that sections 241 and 253 are unconstitutional; (2) class-wide injunctions effectuating those declarations; (3) an order requiring the Secretary of State to provide notice to all class members and otherwise educate the public regarding the restored rights; and (4) reasonable costs and attorney's fees. Id. at 43-45.

         In the present motion, Plaintiffs seek to certify a class they now define as including:

Any person who (a) is or becomes disenfranchised under Mississippi state law by reason of a conviction of a crime that the Secretary of State contends is disenfranchising under Section 241 of the Mississippi Constitution, Miss. Code § 23-15-11 and/or Miss. Code § 23-15-19, and (b) has completed the term of incarceration, supervised release, parole and/or probation for each such conviction.

Pls.' Mem. [45] at 11.

         II. Analysis

         Class certification is a two-step process. First, Rule 23 provides four prerequisites to class certification: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a); see Ibe v. Jones, 836 F.3d 516, 528 (5th Cir. 2016). Although Hosemann says Plaintiffs' claims are substantively meritless, he agrees Plaintiffs have satisfied these four procedural criteria.

         Second, “[a] class action may be maintained” if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). Again, Hosemann preserves his merits-based opposition to Plaintiffs' claims but acknowledges that they “dovetail with Rule 23(b)(2)'s expressed requirements.” Def.'s Mem. [50] at 8.

         Accordingly, there is effectively no dispute Plaintiffs' motion satisfies all technical requirements for class certification under Rule 23. Nevertheless, Hosemann asks the Court to deny class certification because it is unnecessary. Alternatively, Hosemann urges the Court to re-define the class if it is certified. The balance of this Order will separately examine the suggested necessity requirement and the class definition.

         A. Necessity

         Hosemann reasons that because success on Plaintiffs' constitutional claims “will simultaneously benefit” the proposed class, class certification “lacks utility” and should be denied. Def.'s Mem. [50] at 8. His ...


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