by Adele Uphaus
Managing Editor and Correspondent
A U.S. District Court judge found today that a lawsuit challenging Virginia’s practice of stripping voting rights from people with felony convictions has merit and can proceed.
The ACLU of Virginia, along with WilmerHale and Protect Democracy, is bringing the suit on behalf of three individuals against Glenn Youngkin, in his capacity as Governor of Virginia, and others associated with the state Department of Corrections. It alleges that Youngkin and the other defendants are in violation of the 150-year-old federal law that established the terms of Virginia’s readmission to representation in the U.S. Congress after the Civil War.
That law, the Virginia Readmission Act of 1870, prohibits Virginia’s Constitution from being “amended or changed to deprive any citizen or class of citizens of the right to vote, except as a punishment for such crimes as are now felonies at common law [emphasis added by the ACLU of Virginia].”
But a few years later, Virginia amended its Constitution to disenfranchise people convicted of additional felonies. Today, the state strips voting rights from anyone convicted of any felony, including forgery and drug possession, according to the ACLU of Virginia.
According to a 2023 report by the Sentencing Project, Virginia’s disenfranchised population totaled 312,540 – 5% of the voting age population – in 2022. Of that total, just under half (147,164) of disenfranchised individuals are Black.
Virginia is also the only state that gives the governor sole authority to restore an individual’s civil rights, which include the right to serve on a jury, run for office, and carry a firearm, in addition to the right to vote.
The three governors preceding Youngkin, starting with Bob McDonnell, a Republican, took steps to streamline the process of rights restoration. But Youngkin last year stopped automatically restoring voting rights to residents who have completed felony sentences, and the process has stagnated.
In his ruling today, John Gibney, a senior U.S. District Judge, wrote, “the plaintiffs allege that Virginia’s Constitution has been amended to disenfranchise persons who could have voted under the 1869 Constitution, and that the defendant’s ongoing enforcement of … Virginia’s Constitution thus violates the Virginia Readmission Act. The Court will allow [this count] to proceed to summary judgement.”
In a statement released Monday after the ruling, Vishal Agraharkar, supervising attorney at the ACLU of Virginia, said, “Virginia may no longer be a Confederate state, but the provision of our constitution that was specifically put in place to suppress the voting rights of newly enfranchised Black citizens after the Civil War is still oppressing Virginians today.”
“Virginia is the only state in the country to automatically take away a person’s right to vote after any felony conviction and then require them to individually petition the governor who applies unknown criteria to get it back. Virginia is still living in the past, but by allowing our case to proceed today, the court demonstrated that it’s never too late to work for justice.”
The case will now proceed to the discovery stage.
A local priority issue
The restoration of voting rights is a priority issue for the local chapter of Virginia Organizing. Duane Edwards, a member of the organization’s board, said the ultimate goal is for that to happen automatically upon release from jail or prison.
“We’re hoping that people come out of incarceration and immediately have their rights, because on Day 1, they’re coming out and being taxed,” Edwards said. “We would also like [our state government] to start looking at this as a nonpartisan issue. The sole right and responsibility [for restoring civil rights] should not be partisan. We can’t have nonpartisan issues left in partisan hands.”
Jen R is an area resident with a felony substance abuse charge, who is now working with Virginia Organizing. She asked that the Advance not use her full last name in order to protect her identity. When she was released from incarceration in 2018, while Ralph Northam was still governor, the restoration of voting rights was automatic, and Jen said that “meant a lot to me during that time.”
“It helped me feel like less of an outsider – like a normal citizen,” she said. “I didn’t have to lie, and it was a step closer to normalcy.”
Prior to her involvement with the justice system, Jen said she “didn’t care about politics.” But that’s changed now that she’s experienced the temporary loss of her civil rights.
“Now I know that it’s a privilege,” she said. “I can vote that has made me more active politically.”
