WASHINGTON, D.C. — On Monday, June 26, Bridging The Gap In Virginia and three Virginia residents who are disenfranchised due to former felony convictions filed a federal lawsuit challenging the Virginia Constitution’s felony disenfranchisement provision.
The challenged felony disenfranchisement provision specifically denies the right to vote to all people convicted of any felony. As a result of the provision, “an estimated 312,540 Virginians are disenfranchised, rendering Virginia the state with the fifth highest number of citizens disenfranchised for felony convictions, and the sixth highest rate of disenfranchisement,” the complaint highlights.
In addition, the lawsuit underscores how the impact of the provision “has fallen disproportionately on Black Virginians” who “comprise less than 20% of Virginia’s voting age population,” but “account for nearly half of all Virginians disenfranchised due to a felony conviction.”
The plaintiffs allege that the provision violates the Virginia Readmission Act of 1870, a law that only allows Virginia to disenfranchise its citizens if they were convicted of crimes that were considered “felonies at common law” during the enactment of the law in 1870. In other words, the law only permits Virginia to deny the right to vote to those who were convicted of crimes that were considered “common law” felonies at the time of the Act’s passage in 1870; these crimes included “murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny.”
However, in the succeeding years, Virginia amended its constitution to “strip citizens of the right to vote if they had been convicted of…any felony” — including crimes (such as drug possession) that “were not common law felonies when the Virginia Readmission Act was passed in 1870.” According to the plaintiffs, “Virginia’s disenfranchisement of citizens with felony convictions for crimes other than those that were felonies at common law in 1870 has resulted in the disproportionate disenfranchisement of Black Virginians.”
“The rate of felony disenfranchisement among Black voting-age Virginians is more than twice as high as the rate of felony disenfranchisement among the entire United States Black voting-age population,” the complaint states. The plaintiffs ask the court to declare the Virginia Constitution’s felony disenfranchisement provision in violation of the Virginia Readmission Act and to block its enforcement.
Although Virginia’s constitution disenfranchises people for life after a felony conviction, the previous three governors streamlined voting rights restoration. In 2013, Gov. Robert McDonnell (R) automatically approved rights restoration for people convicted of non-violent felonies after the completion of their entire sentence. Democratic Govs. Terry McAuliffe and Ralph Northam built upon that policy: In 2016, McAuliffe expanded rights restoration to all individuals after the completion of their sentences and in 2021, Northam moved forward the restoration timeline from after the completion of a sentence, which includes probation and parole, to after release from incarceration. Over 300,000 individuals regained voting rights during this period.
Back in March however, Gov. Glenn Youngkin (R) terminated the state’s previous rights restoration scheme and replaced it with a policy that only allows for rights restoration on a case-by-case basis at the governor’s discretion (as opposed to automatically upon release from incarceration). In response, pro-voting plaintiffs filed a separate federal lawsuit challenging Virginia’s new voting rights restoration scheme for violating the First Amendment of the U.S. Constitution.
As other states, including Minnesota and New Mexico, are implementing crucial measures to restore voting rights to individuals with former felony convictions, Virginia is reverting back to an early 1900s-era policy by maintaining one of the strictest felony disenfranchisement schemes in the country.