ACLU Deploys Originalism in Bid for Voting Rights Restoration
Virginia is the only state which automatically disenfranchises all people with felony convictions and requires them to individually petition the governor for restoration. In contrast, Maine and Vermont never disenfranchise felons. Pennsylvania, Ohio, New Mexico, California, and other states restore voting rights upon release from prison. In Texas, Wisconsin, Georgia, and still other states, completion of one’s sentence, which can be distinct from release from prison, triggers restoration. Virginia is part of the cadre of states with the most severe felon disenfranchisement laws, which require an additional waiting and/or additional action in order to restore rights upon sentence completion. Even among its cohort, Virginia stands out as the only state requiring individual petition to the governor.
The Commonwealth is touted as the birthplace of democracy, having convened the first representative legislature in 1619. If voting is sacred anywhere, one might think it would be in Virginia. But Virginia also was the capital of the Confederacy. It was the landing place of the White Lion and the Treasurer, privateered ships carrying captive people from present-day Angola, marking the beginning of the transatlantic slave trade. Voting here is only as sacred as the state’s efforts to reckon with its history of oppression. In the United States, one in thirteen voting-age African Americans cannot vote.
While felon disenfranchisement has its roots in ancient civilizations, it came to the fore in America’s post-bellum South. Mississippi and South Carolina passed the country’s first Black Codes, though Virginia was not far behind, passing similar laws in 1866. The Brennan Center, quoting Pulitzer Prize-winning author Douglas Blackmon, explained in a public report that these laws “were ‘essentially intended to criminalize black life.’” States began enacting broader felon disenfranchisement laws, tracking “the rising inequalities in the nation’s justice system.” Virginia, for example, expanded its disenfranchisement law to include petit larceny.
Taking a step back in the chronology for a moment, when Virginia was readmitted to the Union, it was required to ratify the Thirteenth and Fourteenth Amendments, but it also had to pass what were called readmission acts. Most former Confederate states were required to ratify such statutes in order to readmit their representatives to Congress. The Virginia Readmission Act proscribes any alterations to the Commonwealth’s constitution that would disenfranchise “any citizen or class of citizens,” with the exception of punishment for “crimes as are now felonies at common law.” In 1902, however, Virginia amended its constitution to allow disenfranchisement for any felony conviction. One state senator exclaimed that the purpose of the amendment was “to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution.” The current state constitution, partially overhauled in 1971, still disenfranchises all felons unless their rights are restored by the governor.
The ACLU, Protect Democracy, and WilmerHale brought suit challenging the Virginia Constitution’s felon disenfranchisement provision as unlawful under the Readmission Act. The theory of the case is predicated upon the interpretation of the Readmission Act as applying only to the nine common law felonies generally recognized in 1870 when the statute was passed: “murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny.” The individual plaintiffs all have felony convictions which fall outside this list: drug offenses and uttering. The phenomenon of racially skewed prosecution of drug offenses is well-documented.
The complaint was filed in June 2023, bringing four claims under the Readmission Act. Three of those four claims were dismissed for failure to state a claim on which relief can be granted. In December 2024, the Fourth Circuit ruled that the one surviving claim could proceed, rejecting the defense’s assertion of sovereign immunity. The Supreme Court denied cert. and the case remains pending in the district court, where the plaintiffs have motioned for class certification and both sides have motioned for summary judgment.
The plaintiffs estimate that 312,540 Virginians are disenfranchised, ranking the Commonwealth as sixth highest in the country in disenfranchisement rate. It appears that although Virginia has a long history of constitutionally allowing blanket disenfranchisement, recent Virginia governors had provided clear paths to mass voting rights restoration. Governor Youngkin, in contrast, broke with tradition and ended his predecessors’ uncodified restoration practices. VPM News pointed out that, under his case-by-case program, Governor Youngkin’s rights restoration dropped year over year for the past three years.
It remains to be seen whether the plaintiffs’ approach to originalism will persuade the courts. In the meantime, millions of people with felony records remain disenfranchised throughout the United States. While the facts of the Virginia case are somewhat unique (though not entirely, given that other states also passed readmission acts), it is worth considering why the plaintiffs sought relief under a relatively esoteric statute. The United States Supreme Court ruled in Richardson v. Ramirez that a California law disenfranchising people with felony records who had completed their sentences and parole did not violate the Equal Protection Clause. A report by the Brennan Center found that post-Ramirez, challenges to felon disenfranchisement have “largely floundered.” The campaign for rights restoration thus must find creative solutions beyond the Fourteenth Amendment.
