Daniel Ernst is a 1L at the American University Washington College of Law.

In the words of President Lyndon B. Johnson, the right to vote is “the basic right without which all others are meaningless.”[1] Yet, the right to vote has long been denied to people because of the color of their skin.[2]

Methods to disenfranchise voters on the basis of race have included literacy tests, poll tests, grandfather clauses, and felony disenfranchisement.[3] While nearly every state has some form of felony disenfranchisement, only a few states—including Virginia—maintain lifelong bans on voting for felons absent governor intervention.[4] Virginia is unique, though, in that it is the only state[5] that currently bars all persons convicted of a felony.[6] Recent lawsuits question the legality of this Virginia practice, and oft-proposed legislation may finally be poised to rectify this injustice.

Felony disenfranchisement was weaponized in Virginia during the infamous Constitutional Convention of 1902.[7] Seven decades later,[8] the Constitution of 1971 amended the 1902 suffrage amendment[9] and limited the penalty of disenfranchisement to felonies only.[10]  Starting with Republican Governor Bob McDonnell in 2013, Virginia governors began to use their clemency powers to grant relief to the broader group of non-violent felons.[11] From 2013 to 2021, over 300,000 non-violent felons had their voting rights restored by governors en masse on a mostly automatic basis.[12] The current governor, Glenn Youngkin, broke with this general policy and began evaluating whether individuals may have their rights restored on a case-by-case basis.[13] This policy shift has dramatically slowed the process for restoring rights and decreased the number of felons who have had their rights restored.[14]

Recently, multiple lawsuits have been filed against Governor Youngkin over his change of policy, including one brought by the Fair Elections Center (FEC) and one brought by the American Civil Liberties Union, Protect Democracy, and WilmerHale (ACLU et al.).[15]

The FEC argues that Governor Youngkin’s policy is unconstitutional because it is based on only the governor’s “unfettered discretion.”[16] The FEC further alleges the governor “actually does make decisions in a wholly arbitrary manner” and that applicants not approved are now being left in “limbo” without a final answer on their application.[17] Accordingly, the FEC is petitioning, under 42 U.S.C. § 1983 for violations of the First Amendment to the U.S. Constitution, for an injunction to prevent Governor Youngkin and his administration from continuing the current policy.

ACLU et al. argue that Governor Youngkin’s policy violates the 1870 Act to Admit the State of Virginia to Representation in the Congress of the United States (Readmission Statute).[18] The Readmission Statute provided that Virginia’s representation in Congress was contingent, in part, on never again depriving a citizen of the right to vote “except as a punishment for such crimes as are now felonies at common law.”[19] ACLU et al. contends that the felonies which were recognized by the common law in 1870 were “murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny,” and therefore the “numerous crimes beyond the nine” recognized today in Virginia violate the Readmission Statute’s narrow definition of felonies.[20] ACLU et al. further contends that disproportionate policing of Black citizens and resulting widespread felony disenfranchisement of Black citizens effectively “abrogat[es] . . . the republican form of government” the statute was enacted to guarantee.[21]

Efforts to amend what multiple legislators have dubbed, “one of the final vestiges of Jim Crow election suppression”[22] have faced numerous stops-and-starts. Senator Yvonne Miller, the first Black woman to serve in the General Assembly, began to annually introduce a bill to amend the Virginia Constitution in the early 2000s through her death in 2012, to no avail.[23] Senator Mamie Locke “took up the mantle” thereafter,[24] and has been joined in recent years by a bi-partisan, bicameral cohort of supporters.[25] In 2021, Majority Leader-elect Charniele Herring successfully passed an amendment in the General Assembly; however, control of the House of Delegates changed in 2022, ultimately resulting in the amendment failing.[26] Democrats on the campaign trail in 2023 promised that if they achieved majorities in the General Assembly in 2024, they would begin the process of amending the constitution once again.[27] Following their success in the November 2023 elections, joint resolutions have since been introduced in the General Assembly by Delegate Elizabeth Bennett-Parker[28] and Senator Mamie Locke.[29] Notably, the Speaker of the House of Delegates—Del. Don Scott Jr.—is not only the first Black person to serve in the role but was himself one of the individuals to whom Governor McDonnell restored voting rights a decade ago.[30]

The lawsuits against Governor Youngkin’s voter restoration policy and the legislative efforts to enshrine automatic felon voting rights restoration are in their infancy, and it is still unclear how these efforts will conclude. One can be optimistic that these recent lawsuits and legislative efforts demonstrate that more people are recognizing that voting is the “basic right without which all others are meaningless,”[31] and are realizing their shared obligation to fight for that same right for their fellow citizens.

 

[1] Lyndon Johnson, President of the U.S., Remarks in the Capitol Rotunda at the Signing of the Voting Rights Act (Aug. 6, 1965) (quoting Lyndon Johnson, Majority Leader of the Senate, Remarks in Support of Legislation to Guarantee the Right of All Men to Vote (1957)).

[2] Id. (“Millions of Americans are denied the right to vote because of their color.”).

[3] Matt Ford, The Racist Roots of Virginia’s Felon Disenfranchisement, The Atlantic (Apr. 27, 2016), https://www.theatlantic.com/politics/archive/2016/04/virginia-felon-disenfranchisement/480072.

[4] Id.

[5] Disenfranchisement Laws, Brennan Ctr. for Just., (last visited Nov. 18, 2023), https://www.brennancenter.org/issues/ensure-every-american-can-vote/voting-rights-restoration/disenfranchisement-laws.

[6] Voting Rights Restoration Efforts in Virginia, Brennan Ctr. for Just. (Apr. 3, 2023), https://www.brennancenter.org/our-work/research-reports/voting-rights-restoration-efforts-virginia.

[7] Ford, supra note 3; see also Va. Const. art. II, § 23 (amended 1971) (providing that voters could be disenfranchised for conviction “of treason, or of any felony, bribery, petit larceny, obtaining money or property under false pretences [sic], embezzlement, forgery, or perjury; persons who, while citizens of this State, after the adoption of this Constitution, have fought a duel with a deadly weapon, or sent or accepted a challenge to fight such duel, either within or without this State, or knowingly conveyed a challenge, or aided or assisted in any way in the fighting of such duel”).

[8] Helen A. Gibson, Felons and the Right to Vote in Virginia: A Historical Overview, 91 Va. News Letter, no. 1 (Univ. of Va Inst. of Gov’t, Richmond, VA), Jan. 2015, at 8 n.38 (noting that the Virginia Constitution of 1928 preserved the language of the Constitution of 1902 until the current 1971 Virginia Constitution).

[9] Id. at 1, 4 (discussing felony disenfranchisement in Virginia, tracing its history in the years following the Civil War, and comparing its development to the practices of other states).

[10] Va. Const. art. II, § 1.

[11] Alex Burness, “Back to 1902”: Virginia Governor Revives Lifetime Ban on Voting, Bolts (Mar. 28, 2023), https://boltsmag.org/virginia-governor-youngkin-rights-restoration (noting that in previous decades, governors had implemented lengthy application processes for felons to apply so that they might have their voting rights restored).

[12] Id.

[13] Id.

[14] Id.

[15] Denise Lavoie & Ben Finley, Virginia NAACP Sues Youngkin for Records Behind the Denials of Felons’ Voting Rights, AP (Oct. 20, 2023, 5:12 PM), https://apnews.com/article/voting-rights-felons-restoration-virginia-naacp-youngkin-0392d38300c1e771d1190dc04a16d025.

[16] Complaint, Nolef Turns, Inc. v. Youngkin, No. 3:23-cv-00232 (E.D. Va. filed Apr. 6, 2023) (Democracy Docket) (arguing that the “absence of objective, transparent rules or criteria for restoration opens the door to political or viewpoint discrimination”).

[17] Id. at 14.

[18] Complaint, King v. Youngkin, No. 3:23-cv-408 (E.D. Va. filed June 26, 2023) (Westlaw).

[19] An Act to Admit the State of Virginia to Representation in the Congress of the United States, ch. 10, 16 Stat. 62, 63 (1870) (emphasis added).

[20] King, No. 3:23-cv-408, at 21.

[21] Id. at 22.

[22] Mallory Noe-Payne, Branded: The Fight to Restore Voting Rights, WVTF (last visited Nov. 18, 2023), https://www.wvtf.org/branded-the-fight-to-restore-voting-rights (discussing the history of felony disenfranchisement in Virginia); Regina Mobley, Lawsuit: Youngkin’s Plan to Roll Back Restoration of Rights Is Unconstitutional, WAVY (Apr. 8, 2023, 1:20 AM), https://www.wavy.com/news/politics/virginia-politics/lawsuit-youngkins-plan-to-roll-back-restoration-of-rights-is-unconstitutional/ (reporting on State Senator Louise Lucas’s reaction to lawsuits over Governor Youngkin’s policy changes).

[23] Noe-Payne, supra note 22.

[24] Id.

[25] See, e.g., House Joint Resolution No. 555, Virginia’s Legis. Info. Sys. (last visited Nov. 18, 2023), https://lis.virginia.gov/cgi-bin/legp604.exe?231+ful+HJ555+hil (proposing an amendment to Section 1 of Article II of the Virginia Constitution allowing for automatic restoration of voting rights to felons).

[26] HB 416 Constitutional Amendment; Qualifications of Voters and the Right to Vote (Voter Referendum), Virginia’s Legis. Info. Sys. (last visited Nov. 18, 2023), https://lis.virginia.gov/cgi-bin/legp604.exe?221+sum+HB416 (showing that Subcommittee #1 of the Committee on Privileges and Elections refused to move forward with an amendment to Section I of Article II of the Virginia Constitution allowing for the automatic restoration of voting rights to felons in a second session, preventing the amendment from being considered by voters).  The Virginia Constitution requires that any amendment first be approved by both chambers of the General Assembly in two consecutive legislative sessions, with a general election in between, and thereafter by a majority of voters. Va. Const. art. XII, § 1.

[27] Gregory S. Schneider, Virginia House Makes History by Nominating First Black Speaker, Wash. Post (Nov. 11, 2023, 3:59 PM), https://www.washingtonpost.com/dc-md-va/2023/11/11/virginia-assembly-speaker-scott-youngkin.

[28] See, House Joint Resolution No. 2, Virginia’s Legis. Info. Sys. (last visited Jan. 26, 2024), https://lis.virginia.gov/cgi-bin/legp604.exe?241+sum+HJ2 (proposing an amendment to Section 1 of Article II of the Virginia Constitution allowing for automatic restoration of voting rights to felons, which has garnered over three dozen legislators as co-patrons of the bill).

[29] See, Senate Joint Resolution No. 2, Virginia’s Legis. Info. Sys. (last visited Jan. 26, 2024), https://lis.virginia.gov/cgi-bin/legp604.exe?241+sum+SJ2 (proposing an amendment to Section 1 of Article II of the Virginia Constitution allowing for automatic restoration of voting rights to felons).

[30] Id.

[31] Johnson, supra note 1.