Disfranchisement in Virginia

until after the Civil War, only white men had an opportunity to vote
Source: Humanities - Picturing America, George Caleb Bingham: The County Election, c.1852

During the colonial period, only freemen (adult white men not working as an indentured servant) could vote.

Since women were never allowed to vote in colonial Virginia, they were never "disfranchised" as a group because they were not "enfranchised" until the 19th Amendment to the US Constitution required Virginia to allow them to vote starting in 1920. Similarly, Native Americans were not disfranchised because they were "Indians not taxed" and not allowed to vote, even after ratification of the 15th Amendment in 1870. Even after passage of the Indian Citizenship Act in 1924 declared all the Native Americans who had been born within the United States to be citizens, voting barriers erected during the days of Jim Crow were applied to Native Americans.

Black men were not granted the right to vote until a new state constitution went into effect in 1870. That document theoretically gave black men (but not black women) the right to vote, but from the beginning that right was constrained by both official and unofficial actions by white men.

It is possible that one or more persons of color had managed to vote in the 1620's, but in the mid-1600's Virginia's colonial leaders made clear that blacks would be enslaved for their entire lifetime and slavery would be hereditary. They would not be granted the same freedoms as white indentured servants, who were allowed to vote after completing their terms of service (their "indenture") and acquiring property.

The prohibition against voting by women, slaves, mulattoes, Native Americans, indentured servants, and those under the age of 21 were formalized in different acts of the General Assembly passed in 1699, 1705, and 1723. Passage of those laws suggest that that there had been a problem recently when a member of the excluded class had tried to vote, triggering a response by the General Assembly.

The 1723 law, "An Act directing the trial of Slaves, committing capital crimes; and for the more effectual punishing conspiracies and insurrections of them; and for the better government of Negros, Mulattos, and Indians, bond or free," may have included specific language in response to concerns that a non-white man had tried to vote:¹

And be it further enacted, by the authority aforesaid, and it is hereby enacted and declared, That no free negro, mullatto, or indian whatsoever, shall hereafter have any vote at the election of burgesses, or any other election whatsoever.

The stimulus for passing those laws may have been someone trying to violate the customs of the day, causing one or more county sheriffs to ask for official authority to block a future attempt to vote.

The first group to have the right to vote and then be disfranchised were white males living in a household with an older male. In 1655, the right to vote for members of the House of Burgesses was limited to just the heads of households.

During the Interregnum after Charles I had been executed in England, the Puritans had sent an expedition to seize Virginia from royal supporter Governor William Berkeley. After they took control of Virginia in 1652, they held an election for a new House of Burgesses. Voters were required to swear a new oath in support of Parliament rather than the king. Some royalists may have felt disfranchised, but it appears voter turnout was still high.

The legislature elected after the Puritans took control did limit the suffrage for the first time. The General Assembly decided in 1655 that only one person per family could vote in future elections, and made clear that voters had to be at least 21 years old.

As a result of the 1655 law, sons who were living with their father lost the right to participate in elections for the House of Burgesses. Young men living in homes of their older brothers, and formerly-indentured servants still living in the home of their employer, also were disfranchised.

Since all males over sixteen years of age had to pay the poll tax, the class of young males 16-20 years old experienced taxation without direct representation. They could express their concerns to the head of the house, in hopes of shaping his vote and affecting an election indirectly.

The one-vote-per-household restriction on the electorate lasted only one year. In 1656, the burgesses concluded:²

we conceive it something hard and unagreeable to reason that any persons shall pay equall taxes and yet have no votes in election

between 1619-1920, white men (and later black men) controlled who would represent all Virginians in the General Assembly
Source: Internet Archive, A school history of the United States, from the discovery of America to the year 1878 (p.40)

The second group to be disfranchised were white males without enough property (land or a lease for land) to be taxed.

In 1660, William Berkeley was restored to his position as governor in Virginia and Charles II was restored as king in England. In 1670, Governor Berkeley restricted the right to vote to white males who owned enough property that they were required to pay local taxes.

The governor was concerned about the growing numbers of former indentured servants who had completed their term of service, but had not acquired land to start their own farm. The governor prioritized maintaining peace with Native Americans, with whom he was engaged in a profitable fur trade. He was not willing to go to war so colonists could establish new farms in the backcountry.

Driving those Native Americans far away would reduce raids on the outlying "quarters" staffed with indentured servants and enslaved people, and on the small farms created by the indentured servants after their terms of service were completed. However, the governor was not willing to pay the militia to complete that expensive task.

He was willing to approve construction of new forts, which also required new taxes but provided little or no military protection. The political advantage of building forts was that key members of the already-wealthy gentry got paid to build them. The gentry also were appointed to different colonial offices that required higher taxes as well. The elite who depended upon the governor supported him as he redistributed wealth collected from many taxpayers to just a few officeholders, but the poor farmers ultimately grew unruly. The new property requirement limited the ability of the unhappy farmers burdened with extra taxes to prevent the governor and General Assembly from "soaking the poor."

In England, the right to vote had long included a property requirement. For many locations, the minimum was 40 shillings. As inflation increased, more and more people qualified to vote. Different boroughs had separate requirements. In one, the judges allowed "potwallopers" to vote. A potwaller/potwalloper did not own or rent an entire house, but had enough control over one fireplace to boil the pot for themselves and their families.³

The property requirement was dropped briefly in 1676, when Governor Berkeley finally dissolved the "Long Assembly" and called an election for a new House of Burgesses. That was followed by Virginia's first civil war, Bacon's Rebellion.

After the rebellion was suppressed, royal instructions required reinstating the property requirement. The General Assembly passed such a mandate in 1684, and Virginians had to own a minimum amount of property in order to vote for the next 175 years.

A law passed in 1705 required that a man had to live in the county where he voted, but later laws simply defined a property rather than residence requirement. Relaxing the residence requirement allowed some wealthy property owners to vote in multiple jurisdictions, and to choose between them when running for the House of Burgesses.⁴

In 1736, the property minimums were defined as 100 acres of undeveloped land, 25 acres with a house and farmed land plantation, or a town house and lot. In 1762, the minimum ownership of undeveloped land was lowered to 50 acres and the minimum size of the town house was set at twelve feet by twelve feet (twelve feet square, or 144 square feet). Since normal town houses were at least twenty feet square, the 1762 law expanded the electorate.

The first state constitution adopted in 1776, after the colony of Virginia declared independence from Great Britain, did not alter voter qualifications. Voting was restricted to while males over 21 who owned land or a house. The 1723 law that said "no negroes, mullatto, or indian whatsoever shall hereafter have any vote at the election of burgesses, or at any election whatsoever" remained unchanged.

There was discussion of expanding the concept of "liberty" to include more than just white males. "Liberty" was popularized as the rationale for revolution, but the Fifth Virginia Convention revised George Mason's Declaration of Rights to include the alteration proposed by Edmund Pendleton that limited who would be affected. That modification (emphasis added) ensured that enslaved people who were presumed to be living "in a state of nature" would not be allowed to vote.⁵

That all men are by nature equally free and independent, and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity, namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety. (emphasis added)

The 1830 constitution loosed the requirements and authorized more white males over 21 to vote. The new constitution added leaseholders who paid taxes on $20-25 of property, plus all tax-paying housekeepers who were heads of families. The 1851 state constitution finally dropped the property ownership barrier to voting by stating:⁶

Every white male citizen of the commonwealth, of the age of twenty-one years, who has been a resident of the state for two years, and of the county, city or town where he offers to vote for twelve months next preceding an election - and no other person - shall be qualified to vote for members of the General Assembly and all officers elective by the people; but no person in the military, naval or marine service of the United States shall be deemed a resident of this state, by reason of being stationed therein. And no person shall have the right to vote, who is of unsound mind, or a pauper, or a non-commissioned officer, soldier, seaman or marine in the service of the United States, or who has been convicted of bribery in an election, or any infamous offence.

The third group to be excluded were Catholics.

The Church of England was the established church in Virginia. Parish boundaries were defined by the General Assembly, and new parishes were created in a parallel process with the creation of new counties. Anglican ministers were paid by local taxes collected by the county sheriff, and Anglican vestries were responsible for social welfare efforts such as finding homes for orphans. The Anglican form of worship was required. Governor William Berkeley in particular sought to purge the colony of Puritans, Quakers, and others who did not conform.

When colonists first arrived at Jamestown, Catholics were associated with Spain and France, which was beginning settlement in the St. Lawrence River valley and on islands near the Atlantic Ocean shoreline.

There were Catholics spies in the early colony and in England who managed to feed information about the early Virginia colony to the Spanish ambassador in London, Don Pedro de Zuniga. Catholics in Jamestown were viewed as military threat, and as potential saboteurs if a Spanish ship arrived to attack. George Kendall was deposed from his position on the Council and in 1608 became the first man executed in Virginia, after being accused of serving as a spy for Catholic Spain.

Creation of the Maryland colony in 1608 brought Catholics to the area and constrained Virginia's fur trade in the upper Chesapeake Bay. Economic and religious rivalries merged, and during the English Civil War Virginians provided assistance to rebels who seized control from the Calverts.

The disruptions in Maryland caused members of the Brent family to cross the Potomac River and settle in Virginia. Their wealth and social status made them welcome in Stafford County, even though they were Catholics.

Religious conflict in England triggered new restrictions on Catholics in Virginia. In 1672 King Charles II issued a Declaration of Indulgence, easing penalties imposed upon Catholics, Dissenters, and other nonconformists, but Parliament passed the Test Oath in 1673 to require all officials to commit to membership in the Anglican church. Charles' brother James, heir to the throne, had converted to Catholicism in 1668/69. He chose to resign his position as Lord High Admiral, and also married a Catholic woman.

King James II assumed the throne in 1685, the first openly-Catholic ruler since Queen Mary in 1553-1558. He ignored the Test Act and appointed Catholics to high positions in courts, universities, and the military. In 1687 James II reissued the Declaration of Indulgence.

In 1687, George Brent from Stafford County joined with three other partners in England and purchased a large parcel from Lord Culpeper. The potential for settlement had increased after the Iroquois agreed, in the 1684 Albany agreement (also known as Lord Howard's treaty), to limit their travel in the Piedmont and stay "at the foot of the mountains."

The four land speculators got James II to allow settlers at the 30,000-acre Brent Town settlement to practice their religion without restriction. The plan was to attract Huguenot refugees fleeing France, after Louis XIV revoked the Edict of Nantes which officially tolerated Protestants in 1685, but they later switched and sought to recruit Catholics. In 1688, while James II was placing Catholics in high positions in England and the Test Act was not enforced, Brent was elected to the General Assembly.

The moment of crisis occurred after Queen Mary gave birth to a male heir in 1688. That created the prospect of a new royal line of Catholic monarchs. In England, it triggered the Glorious Revolution in which James II was forced to flee to Europe and William and Mary became the new monarchs in London.

In Virginia, Rev. John Waugh was an Anglican minister and anti-Catholic agitator in Overwharton Parish, which included a church at Aquia. In 1689, he claimed that Catholics and Native Americans in Maryland planned to murder Anglicans north of the Rappahannock River. To protect his personal safety, George Brent was placed under house arrest until officials could restore calm. In Maryland, the agitation led to removal of the Catholics from government, a shift in the state capital from St. Mary's City to Annapolis, and official establishment of the Anglican Church in the once-Catholic colony.

George Brent did not return to the General Assembly, and he ended up being the only Catholic elected to office in colonial Virginia. In 1699, the General Assembly banned "recusant convicts" (those who refused to attend Anglican church services) from voting:⁷

Be it enacted by the Governour, Councill and Burgesses of this present generall assembly and the authority thereof, and it is hereby enacted. That no person or persons shall be enabled to give a vote for the election of a burgeses or burgeses to serve in the generall assembly hereafter to be caled but those who are freeholders in the respective county or towne for which the said burgess or burgesses shall be elected and chosen, and if any person shall presume to give his vote for the election of a burgess or burgesses in any county or towne who is not a freeholder in such county or towne he shall forfeit and pay the sume of five hundred pounds of tobacco for every such offence. Provided alwayes, and it is the true intent and meaning of this act that no woman sole or covert, infants under the age of twenty one years, or recusant convict being freeholders shall be enabled to give a vote or have a voice in the election of burgeses any thing in this act to the contrary notwithstanding.

Catholics did not regain the right to vote until 1776. The Fifth Virginia Convention adopted a Declaration of Rights stating "all men are equally entitled to the free exercise of religion," and Virginia's first constitution made no reference to how religious status affected suffrage.⁸

Criminals were the fourth group of Virginians to be disfranchised as a class. When the state adopted its second constitution in 1830, people convicted of an "infamous offence" lost the right to vote. The 1829-1830 constitutional convention retained the requirement for voters to be property owners, and also recognized that free black men were convicted of "infamous offences" at a percentage four time greater than white men. The ban of felons from voting after 1830 affected only whites, since no black men at the time could cast a vote.

The restriction on felons voting has been retained and expanded in all subsequent constitutions. In 1870, the General Assembly initiated a database (using paper at that time..) documenting who was disqualified to vote, requiring that:⁹

...every clerk of the court of each county and corporation shall keep a register of full and accurate descriptive lists of every person convicted in his own or any other court of record of his county or corporation, of felony or other infamous offence.

members of the House of Burgesses who met in the Capitol Building in Williamsburg were elected by white, Protestant males who owned at least 50 acres or a townhouse
Source: Wikipedia, Old Capitol Building, Williamsburg

The power to disfranchise criminals was expanded in 1876 by an amendment to the state constitution that blocked from voting those convicted of petty theft ("petit larceny"). The 1876 law was designed to exclude blacks who, during Reconstruction, were actively engaged in the political process. Black men were voting and even being elected to office as Republicans.

The 15th Amendment to the US Constitution blocked the state from simply declaring that only white men could vote. The 14th Amendment included a key exemption, allowing a state to block voting by anyone guilty of "participation in rebellion, or other crime." After the 1876 amendment white sheriffs, working with racially-biased white judges and juries who were also conservative Democrats, ensured that black men would be convicted of petit larceny crimes, and thus disfranchised at a far higher rate than white men.

Legislators took another step to ensure that conviction of felonies and petty theft led to removal of voting rights. After the state constitution was amended in 1876 to disqualify voters convicted of petit larceny as well as felonies from voting, the General Assembly required that the courts send a list of all convicted people to voting registrars. That process enabled white Democrats to challenge black men when they appeared at a precinct, and block anyone convicted of even a minor crime from voting. What was theoretically a race-neutral law was designed to create inequity, not equality:¹⁰

The clerk of the County Court and Hustings, or Corporation Court, shall at each registration, deliver to each registrar in his county or city, a list of all voters who have died, or who have been convicted of felony or petit larceny since last registration... and he shall strike from the list of voters the name of any person convicted of felony or petit larceny...

When the state constitution was revised in 1971, the automatic loss of voting rights for those convicted of petit larceny was dropped. The provision was retained for people convicted of felonies.

President Richard Nixon declared a "War on Drugs" on June 17, 1971, and created the Drug Enforcement Administration in 1973. John Ehrlichman, Nixon's key domestic policy advisor, revealed years later that the "war" was designed to punish Nixon's political opponents, especially Vietnam War protestors and blacks:¹¹

We knew we couldn't make it illegal to be either against the war or blacks, but by getting the public to associate the hippies with marijuana and blacks with heroin, and then criminalizing both heavily, we could disrupt those communities. We could arrest their leaders, raid their homes, break up their meetings, and vilify them night after night on the evening news. Did we know we were lying about the drugs? Of course we did.

Nationwide, drug convictions swelled the 1.17 million felons disenfranchised in 1976 to over 5.85 million in 2010. The statistics for law enforcement demonstrated the racial bias during the War on Drugs. In 2010, almost 7.7% of blacks were disfranchised, compared to 1.8% of the rest of people in the United States.

In Virginia, 20% of adult blacks were disfranchised. Though only 19% of the state's population was black in 2010, but 58% of people in jails and prisons were black.¹²

imprisonment skyrocketed during the War on Drugs, and 20% of adult blacks were disfranchised in Virginia due to felony convictions
Source: US Department of JUstice, Prevalence of Imprisonment in the U.S. Population, 1974-2001 (Figure 3)

Unlike many other states, Virginia did not create a process for automatic restoration of voting rights after felons completed their sentences. Those seeking the rights to vote, serve on juries, and be elected to office had to petition the governor to take special action.

The 1870 state constitution gave the governor the power to grant pardons, including removal of political disabilities. That option was created at a time when former Confederates might require such action in order to vote. A Virginia Supreme Court of Appeals decision in 1883 drew a distinction between the governor's pardon authority and his authority to restore political rights. Since 1906, reports from the governor to the General Assembly have distinguished the number of pardons granted from the number of actions taken by the governor to restore political rights.¹³

The distinctive legal steps for restoration of rights became a problem for the governor 110 years later.

In 2010, less than 3% of felons in Virginia had succeeded in getting their voting rights restored. Republican Governor Bob McDonnell, elected in 2011, started large-scale restoration of voting rights to felons in 2013. He processed the necessary paperwork for 8,000 people to regain their political rights after they had served their time in prison and completed parole successfully.

In 2016, Democratic Governor Terry McAuliffe broke with precedent and issued a mass restoration for all convicted felons, if they had served their time and had completed all supervised release, parole or probation requirements. Republican leaders in the General Assembly filed a lawsuit challenging his authority to use one document to restore rights to 206,000 people. The conventional wisdom was that most of the convicted felons, many of whom were black males, were inclined to vote for Democratic candidates in the upcoming 2016 elections.

The lawsuit was quickly heard by the Virginia Supreme Court. The judges ruled that the governor had the authority to restore voting rights, but the paperwork had to be processed individually. The governor then completed the process in accord with the court decision, and restored voting rights to 168,000 convicted criminals in time for them to vote in the 2017 elections for the House of Delegates and State Senate. Governor McAuliffe restored rights to 5,000 more people before the end of his term, for a total of 173,166 people.

Source: Restoration of Rights | Terry McAuliffe for Virginia Governor 2021

The next Governor, Ralph Northam, continued the process. His predecessor had worked though most of the backlog, but Governor Northam restored voting rights for 11,000 felons in 2018.

In 2021, the governor announced that he was ending the requirement for felons to have completed probation before getting their voting rights restored. He processed the paperwork for 69,000 people who had been released from jail but were still on probation to regain their right to vote. However, he stopped short of restoring voting rights to the 33,000 people still incarcerated as felons.

The 2021 General Assembly passed legislation to eliminate the need for the governor to act. The legislators approved a constitutional amendment that would automatically restore voting rights. Until voters approved the amendment, however, the governor still had to act on individual cases.¹⁴

The fifth group of Virginians to experience mass disfranchisement were white male Confederates during the Civil War.

The Union Army occupied a portion of Virginia starting with the seizure of Alexandria on May 24, 1861, and the Federal government recognized the Restored Government of Virginia based in Wheeling as the official state government. When West Virginia was admitted as a state in 1863, the Restored Government of Virginia moved to Alexandria.

In 1864, the Restored Government of Virginia approved a new constitution for the state. It required voters to take an "iron clad" oath designed to disfranchise all who had supported the Confederacy after January 1, 1864. Anyone who had served in the Confederate government or state government was also banned. The 1864 constitution did not attempt to disfranchise local officials with the oath (emphasis added):¹⁵

I do solemnly swear (or affirm) that I will support the Constitution of the United States and the laws made 1n pursuance thereof, as the supreme law of the land, anything in the constitution and laws of the State of Virginia, or in the ordinances of the convention which assembled at Richmond on the thirteenth day of February, eighteen hundred and sixty-one, to the contrary notwithstanding; and that will uphold and defend the government of Virginia as restored by the Convention which assembled at Wheeling on the eleventh day of June, eighteen hundred and sixty one, and that have not since the first day of January, eighteen hundred and sixty-four, voluntarily given aid or assistance, in any way, to those in rebellion against the Government of the United States for the purpose of promoting the same.

the 1864 constitution attempted to block Confederates from voting
Source: For Virginians: Government Matters, Constitution of 1864

The 1867-68 convention, presided over by Federal Judge John C. Underwood, proposed a new state constitution with the requirement that voters take the "iron-clad oath" swearing they were always Union supporters.

The proposed constitution would allow black men to vote, but disfranchise those white men who had held public office prior to the Civil War and then supported the Confederacy. The moral argument was that those men had broken their oath to uphold the Constitution of the United States.

The practical effect, which may have been a prime motivator for those in the 1867-68 convention who wrote the new state constitution, was to block almost all of the conservative white leadership from participating in the political process. If the top white leaders were disfranchised, then the Republicans and the newly-enfranchised blacks would be able to control the governor's office, the General Assembly, and local offices.

enfranchising recently-enslaved people, who had neer been allowed to attend school, was controversial in all Southern states
Source: Library of Congress, The Georgetown elections - the Negro at the ballot-box (by Thomas Nast, 1867)

In 1869, a compromise was created to allow a separate vote on the suffrage restriction. Voters rejected the disfranchisement of Confederates, as proposed in the fourth clause of Article 3, Section 1:¹⁶

Every person who has been a Senator or Representative in Congress, or elector of President or Vice-President or who held any office, civil or military, under the United States, or under any State, who, having previously taken an oath as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, shall have engaged in insurrection or rebellion against the same or given aid or comfort to the enemies thereof.

This clause shall include the following officers: Governor, lieutenant-governor, secretary of state, auditor of public accounts, second auditor, register of the land office, State treasurer, attorney-general, sheriffs, sergeant of a city or town, commissioner of the revenue, county surveyors, constables, overseers of the poor, commissioner of the hoard of public works, judges of the supreme court, judges of the circuit court, judges of the court of hustings, justices of the county courts, mayor, recorder, alderman, councilmen of a city or town, coroners, escheators, inspectors of tobacco, flour, etc., clerks of the supreme, district, circuit, and county courts and of the court of hustings, and attorneys for the Commonwealth

Article 3, Section 1 of the 1869 constitution included only three clauses, after voters rejected the proposed fourth clause to disfranchise former Confederates
Source: "Virginia Constitution, 1870," for Virginians: Government Matters, http://vagovernmentmatters.org/primary-sources/516 (last checked April 1, 2021)

The US Congress accepted the new state constitution, which allowed previous Confederate leaders to be eligible to serve in public office. Every male who had lived within Virginia was allowed to vote unless they were insane, felons, or had fought a duel. Former Confederates, like all other voters, had to register and take an oath:¹⁷

I, ______, do solemnly swear (or affirm) that I am not disqualified from exercising the right of suffrage by the constitution framed by the convention which assembled in the city of Richmond on the third day of December, 1867, and that I will support and defend the same to the best of my ability.

Robert M. T. Hunter resigned from the US Senate and became Confederate Secretary of State, so the Underwood Constitution of 1869 would have blocked him from voting if the disfranchisement clause had been approved
Source: U.S. House of Representatives, Robert Mercer Taliaferro Hunter

The sixth major group of people to be disfranchised in Virginia were black men. Because they lacked the right to vote and were not enfranchised until after the Civil War, black men were one of the last groups to be disfranchised.

On May 25, 1865, black men went to the polls in Norfolk to vote in the first election after the end of the Civil War, to send delegates and a state senator to Richmond.

At three wards, election officials refused to let the blacks vote. In the Second Ward, votes were recorded, though on a separate sheet which was not counted when determining results that day. Simply denying the right to vote in three wards extended the traditional barrier of disfranchisement by color, while the manipulation of the voting process by refusing to count the votes of black men in the Second Ward initiated a new mechanism of controlling the vote.

In March 1867, the US Congress declared Virginia to be Military District 1 and mandated the state adopt a new constitution that allowed black adult males to vote. The Federal government did ensure blacks could vote when Virginia elected a constitutional convention on October 22, 1867. Over 20 blacks were elected to serve in the convention.

in 1867, the first black men were called to serve on a Virginia jury - which prepared to try Jefferson Davis in U.S. Circuit Court for the District of Virginia
Source: Virginia Humanities, Block the Vote

in 1870, black men registered to vote in Richmond while Federal troops were still located in the city
Source: Library of Congress, First municipal election in Richmond since the end of the war - registration of colored voters (Harper's Weekly, June 4, 1870)

One of those was Willis Augustus Hodges, elected from Princess Anne County. All of his 807 votes came from African American men voting for the first time. The candidate to serve in the constitutional convention with the second-highest number of votes was a white man. One of his 609 votes came from an African American man, and the 608 votes came from white men.

Known as "Old Specs Hodges" because he wore glasses, Frank Leslie's Illustrated Newspaper highlighted his presence in a February 15, 1868 illustration of the convention. In the 1869 election for the House of Delegates, his brother Charles E. Hodges was elected from Norfolk County/Portsmouth, and his nephew John Quincy Hodges was elected from Princess Anne County.¹⁸

Willis Augustus Hodges, wearing glasses at the 1868 convention chaired by Judge John C. Underwood
Source: Library of Congress, First municipal election in Richmond since the end of the war - registration of colored voters (Harper's Weekly, June 4, 1870)

Disfranchisement of black men became possible only after the Fifteenth Amendment, was added to the US Constitution in 1870. In theory, after passage of the Fifteenth Amendment black men had the right to vote and be elected to office. Thee were 92 black men who served in the General Assembly between 1869 and 1890, and two-thirds of them had once been enslaved. Nineteen black members of the House of Delegates served at least two terms, and Ross Hamilton from Mecklenburg County was elected to seven terms.

both black and white men served as delegates at the Readjuster Party's state convention in 1881
Source: Library of Virginia, Virginia - The Readjuster State Convention at Richmond (by Walter Goater, 1881)

After the Readjuster Party was defeated in 1883, Virginia's Democrats ensured that few blacks participated in the political process. White Democrats in Virginia successfully kept many black men from voting through multiple techniques until Federal intervention in 1965.

After Virginia was readmitted to the Union in 1870, the General Assembly passed laws to evade compliance with the 15th Amendment. After Federal troops left Virginia in 1877, the law enforcement system was designed to discriminate against blacks in a series of laws named after a black character in minstrel shows, Jim Crow. White leaders in the southern states feared political equality might lead to economic and social equality between the races.

The scope of the 15th Amendment and legislation passed by the US Congress, including the Enforcement Act of 1870 and the Civil Rights Act of 1875, were constrained by US Supreme Court decisions. In the 1876 United States v. Reese decision, states were empowered to define barriers to voting that appeared to be race-neutral, but when applied would discriminate against blacks:¹⁹

...the Supreme Court opened a Pandora's box with its finding that the Fifteenth Amendment did not confer upon any individual the right to vote, but merely forbade states to give any citizen preferential treatment. In this interpretation, the right to vote derived from states, rather than the federal government - leaving state governments to determine how voters were qualified and under what circumstances voting would be allowed.

The US Supreme Court decision made possible the vision of former Confederate Vice-President Alexander Stephens to exclude the Federal government from protecting civil rights in southern states, and to allow businesses and governments to discriminate. Stephens had argued against passage of the Civil Rights Act of 1875, saying:²⁰

...if the people, colored and white, in several Southern States, shall be left to themselves to work out their own destiny under the present system, subject alone to the controlling law of justice... without external interference of any sort, it will, in my judgment, be infinitely better for both races.

laws, voting procedures, and intimidation reduced the opportunity for black men to vote despite the 15th Amendment
Source: Harper's Weekly, Of Course He Wants to Vote the Democratic Ticket (by A. B. Frost, 1876)

Voters in Virginia passed a constitutional amendment in 1876 that led to large-scale conviction of blacks for petit larceny. Because such convictions disqualified those convicted of petty crime from voting and judges were all white, the amendment created a powerful tool for racial discrimination while meeting the Supreme Court's criteria for being race-neutral.

A second constitutional amendment also approved by the voters in 1876 created a poll tax, with similar intent to constrain primarily blacks from voting. Poll taxes had been imposed starting in 1623, when extra funding was required to recover from the 1622 uprising led by Opechancanough as head of the Native American paramount chiefdom. As Anglican vestries were created, they also depended upon a per capita tax to fund their operations.

The poll tax requirement ended in 1787, but was reimposed briefly in 1792. In 1813-1816 the tax was reimposed, but only on "free negroes and mulattoes." The poll tax was restarted in 1850, applied initially to just free negroes with funding to be used for transporting free negroes to Liberia. A poll tax was imposed on white males starting in 1852.

pictures of the members of the General Assembly in 1871-72 were segregated, with all black members on the bottom
Source: Library of Virginia, Legislature of Virginia, Session 1871 and '72

For the first time, the 1876 law made payment of the poll tax a prerequisite for voting. In theory, those desiring to vote would be incentivized to pay the tax, increasing compliance and revenue. Practically, those freed from slavery in 1865 were obviously less capable of paying the tax. The poll tax succeeded in reducing the total number of voters by 10%. Since blacks had less wealth than whites, the poll tax appeared to be race-neutral but in fact discriminated by race.

the requirement to pay the poll tax before voting had a racially-biased impact
Source: HathiTrust, The Taxation of Negroes in Virginia (by Tipton R. Snavely, p.21)

In 1882, the Readjusters controlled the General Assembly. They proposed a new constitutional amendment to allow voting without paying the poll tax.²¹

The Democrats gained control of both the House of Delegates and the State Senate from the Readjuster coalition, and then chose a new mechanism to control who would be able to vote. The General Assembly passed the Anderson-McCormick Act. in 1884. That law allowed the Democrats in the legislature to:²² 1)

....appoint all members of electoral boards in all counties and cities. Those boards in turn appointed all local voter registrars, who kept separate lists of white and black men who were registered to vote. The boards also appointed three election judges in each precinct or ward, and those judges appointed clerks to compile the results. The Anderson-McCormick Act, in effect, gave to Democratic Party workers command of the registration of voters, the conduct of elections, and the compilation and reporting of the results.

white former Confederates resented the ability of formerly enslaved black men to vote
Source: Harper's Weekly (April 13, 1867)

The result was blatant fraud in elections. At the time, voters provided their own ballots on which they wrote the name of the candidate which they supported. Voters committing fraud would secretly insert multiple copies into the ballot box.

At the end of election day, if an Electoral Board discovered more ballots than the number of voters who had participated in that day's election, the judges were required to randomly select and discard enough ballots to lower the total. The duplicate ballots stuffed into ballot boxes for Democratic candidates used paper with a distinctive feel. The judges could reach into the ballot box and "randomly" select for other ballots, then discard paper ballots which might include names of Republican and Readjuster candidates while ensuring ballots for Democratic candidates remained in the box.

The dishonest voting process became too obvious, so in 1894 the General Assembly passed the Walton Act. That law required electoral officials to provide a standardized ballot to voters. Voters were required to scratch a line through the names of candidates they did not support, while leaving the names of their preferred candidates unmarked.

The Walton Act eliminated the selective removal of ballots as a fraud technique and required that electoral boards include members of both political parties, but also provided new mechanisms to control the vote. When counting the ballots, electoral judges could choose to discard those on which the lines were not scratched through candidate names exactly as required by the Walton Act if the Republican candidate had been chosen, while accepting less-than perfect ballots cast for Democrats.

Electoral boards were required to appoint a special constable who would assist voters, especially those who were illiterate, to determine which lines to scratch through and which candidate names to leave unmarked. No one observed if the constable was honest in his guidance to voters as he performed his duties under the Walton Act:²³

At the request of any elector in the voting booth who may be physically or educationally unable to vote, the said special constable may render him assistance by reading the names and offices on the ballot and pointing out to him the name or names he may wish to strike out, or otherwise aid him in preparing his ballot.

Electoral Boards controlled by Democrats ensured the constable was a Democrat. The appointment of constables was eliminated in a revision of the law in 1896, and electoral judges were given the responsibility to assist voters. They also retained the ability to manipulate the recorded "poll list" identifying who voted, so fraudulent ballots never cast by a voter could be included in the final total.

Illiterate voters who were unwilling to admit their ignorance and request assistance were not inclined to vote. Republicans found a way to overcome that reluctance. They arranged for someone to vote early in the day, then report which line had the Republican candidate's name so illiterate voters could be trained on how to vote "correctly" and without requesting aid. Democratic election officials countered that technique by having different versions of the ballots printed, so the Republican candidates would be listed on different lines.²⁴

Virginia's white leaders took advantage of multiple opportunities to legally limit the number of black and white Republican voters. The discrimination occurred as Black Code or "Jim Crow" laws were established across the southern states; discrimination extended far beyond voting practices.

The US Supreme Court authorized "separate but equal" treatment of the races in the 1896 Plessy v. Ferguson decision. That court also approved Missisippi's techniques to suppress the black vote in the 1898 Williams v. Mississippi decision. The court continued to rule that states could disfranchise black voters through racially-biased administration of laws that appeared to be race-neutral. Starting in 1904, Southern legislators in the US Congress even sought to create a case allowing the courts to rule that the 14th Amendment and 15th Amendment were not legally adopted.²⁵

In 1902, a convention adopted a new Virginia constitution, written to exclude black men from the political process even more effectively. Legal discrimination would reduce the need for fraud, which became a problem when elections to the US House of Representatives were protested. Between 1874-1900, six elections in Virginia had been overturned by a Republican-controlled US House of Representatives because the election process had been so clearly tainted. New techniques, legal in the eyes of the US Supreme Court, could reduce the potential that Democrats would be denied a seat due to obvious cheating at the polls.²⁶

The 1902 Virginia constitution was modelled on the 1890 Mississippi state constitution. Mississippi implemented a literacy requirement designed to minimize the number of black voters, successfully reducing the 76,742 black voters in 1890 to just 8,615 in 1892. At the Virginia constitutional convention, Carter Glass made crystal clear that the state would take advantage of the willingness of the US Supreme Court to allow discrimination, so long as the words were race-neutral. Virginia would use its new constitution to strip black men of the opportunity to participate in the political process:²⁷

Discrimination! Why, that is precisely what we propose; that, exactly, is what this Convention was elected for - to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate

after passage of the 15th Amendment, Virginia officials managed to disfranchise black men by multiple techniques
Source: Architect of the Capitol, Lincoln's Second Inaugural, 1865

The 1902 constitution was successful in treating white and black voters unequally. The number of black voters fell from about 147,000 to fewer than 10,000, and Democrats gained control of a higher percentage of the vote:²⁸

Registration and voting dropped precipitately following the proclamation of the Constitution of 1902. In the 1900 presidential election, 264,240 Virginia men voted; in 1904 a mere 135,865 did, a reduction in the whole number of votes of 48.6 percent. The Republican vote fell from 43.8 percent to 35.2 percent of the total. The number of white voters declined by about 50 percent, and the number of black votes declined by about 90 percent and remained insignificantly small in all but a few communities until the mid-1960s.

the 1902 Constitution was designed to limit the electorate by excluding people of color
Source: Virginia Chronicle, Times (18 October18, 1901)

One tool of the new constitution was to reinstate the requirement that voters must be taxpayers in order to be voters. The poll tax was already in effect before the 1902 constitution was adopted, but payment was not required before a man at least 21 years of age was allowed to vote. The new constitution required voters to pay a poll tax after 1904. It became the primary tool for ensuring a majority of the electorate supported white supremacy.

black men fought back against disfranchisement and sought to retain their voting rights
Source: Library of Congress, To the colored men of voting age in the southern states.

A "grandfather clause" in the 1902 constitution allowed all men to vote if they had served in the Civil War, as either a Union or Confederate soldier. This special provision "grandfathered in" older white voters without requiring them to pay the poll tax. Former Union soldiers who could take advantage of the grandfather clause, almost all black men, were far fewer than the whites who were allowed to vote without paying the poll tax.

the 1902 Constitution "grandfathered" those who fought in the Civil War, or whose fathers fought, to vote without paying the poll tax
Source: Library of Virginia UnCommonwealth blog, We Demand Complete Realization: The Slow Legal Fight For Enfranchisement (September 11, 2020)

After the US Supreme Court ruled in 1915 that such clauses violated the 15th Amendment, the Virginia Attorney General commented that the grandfather clause was not needed to discriminate successfully,. He wrote in an Alexandria paper:²⁹

The effort was to eliminate the negro from control and at the same time disfranchise as few as possible white men... The real safeguard against negro domination is the poll-tax provision.

the poll tax required after 1904 disfranchised far more blacks than whites, with even greater impact than between 1876-1883
Source: HathiTrust, The Taxation of Negroes in Virginia (by Tipton R. Snavely, p.35)

The Constitution of 1902 required all voters to register in advance. By that time, the white Democrats in the General Assembly had appointed all the judges in the circuit courts, and were confident that their perspective was "safe" on regarding race. The convention chose to professionalize administration of the voting process, creating the appearance of fairness in contrast to procedures used under the Walton Act.

Section 31 in the 1902 constitution assigned the authority to appoint members of local Electoral Boards to Circuit Court judges, rather than to the politicians in the legislature. The constitution also required that Electoral Boards appoint a roughly equal number of election judges from both the Republican and Democratic primaries. (After a 1928 amendment to the state constitution, one of the three members of the Electoral Board had to represent the political party which had won the second-highest votes in the most recent general election.)

Adoption of the 1902 state constitution gave the Democratic majority in Virginia the ability to use legal constraints in the registration process, rather than illegal fraud at the polls, to minimize the ability of black men to affect election outcomes.

In addition to the special clause for initially registering Civil War veterans, all males 21 and over who had paid property taxes of at least $1 were also allowed to register. Also eligible were males over 21 who were:³⁰

...able to read any section of this Constitution submitted to him by the officers of registration and to give a reasonable explanation of the same; or, if unable to read, such section, able to understand and give a reasonable explanation thereof when read to him by the officers.

That provision allowed election officers to register illiterate white males, while refusing to acknowledge that black males qualified according to the "understanding clause." Starting in 1904, a literacy test was used to block people from voting. Starting in 1904, those seeking to register had to have paid poll taxes for the preceding three years (unless they were just turning 21), be able to answer "any and all questions affecting his qualifications as an elector.," and:³¹

...make application to register in his own handwriting, without aid, suggestion, or memorandum, in the presence of the registration officers, stating therein his name, age, date and place of birth, residence and occupation at the time and for the two years next preceding, and whether he has previously voted, and, if so, the state, county, and precinct in which he voted last

A mere literacy test was impossible of adoption, because the higher percentage of illiteracy was found in the mountainous portion of the state where there were few negroes. Conditions in the western counties, where the negro population has always been extremely small, were entirely different from those of the eastern and southside, or "Black Belt" counties. It was difficult to obtain an "understanding" clause or a capable clause based on literacy without at the same time disfranchising many of the whites.

understanding clause questions and answers for Junius Jones, a "colored voter" in Charles City County (1904)
Source: UnCommonwealth blog, Library of Virginia, Records Room Road Trip - Winter Circuit

The Democratic Party managed to block blacks from voting in party primaries, which were used after 1912 to nominate its candidates. By that time, Virginia was part of the Solid South where Democrats won almost every election in November. Nomination by the Democratic Party was tantamount to election, so candidates with conflicting priorities or personal agendas competed in the primary with confidence that the Democratic nominee would be elected in November.

Republicans in southern states recognized that they were doomed to defeat if they continued to support black voting rights. Disfranchisement based on racial lines was effective in preventing Republicans from winning elections with black votes. At the same time, even token Republican support of black voting rights pushed white voters towards the Democratic Party, as "Jim Crow" segregation expanded. After passage of the 1902 state constitution, the Republicans in Virginia decided to discriminate against blacks like the Democrats and recast themselves as a "lily white" party.

In 1908, all members in the Virginia delegation to the Republican National Convention were white. That convention refused to seat an alternative delegation from Virginia which included African-American men. In 1921, the Virginia Republican Convention in Norfolk openly banned any blacks from participating. In response, a convention of black Republicans met in Richmond. The 600 members nominated a "lily black" ticket, with just blacks selected to run for governor and other statewide offices.

The protest drew attention, but did not change the policy of the white Republican leaders in Virginia. In 1922, the Republican Convention met in Luray to nominate candidates for US House of Representatives. The convention retained the lily white policy and excluded black delegates elected by local party units.³²

The Eastern District Court of the United States ruled in 1929 that a state-funded Democratic primary could not be restricted to just whites. A Federal appeals court upheld the decision in 1930.

Democrats could have claimed to be a private association and excluded blacks from a party-run primary or convention, but the party would have had to pay the costs for that nomination process. There was a slight increase in black participation in primaries in Virginia's larger cities, but the effectiveness of other discriminatory tools was adequate to protect the control of the Byrd Organization over the selection of candidates. When the US Supreme Court later invalidated white primaries in other southern states in the 1944 Smith v. Allwright decision, the Richmond Times-Dispatch calmly observed that blacks had been voting in Virginia and "the skies haven't fallen."³³

In 1958, the General Assembly tried to block blacks from registering to vote by creating the "blank sheet" registration form. Activists such as Evelyn Thomas Butts responded to overcome the technique until is was ended in 1962:³⁴

The law required every voter applicant to fill out a "blank sheet" registration form - a form that wasn't a form, but a blank piece of paper. There were no questions on the "form," but applicants had to handwrite the answers in the correct order in the presence of a voter registrar, and do so without looking at notes or asking anyone for help, including a registrar.

Butts taught applicants to correctly fill out the blank sheets from memory. Activists across Virginia conducted similar tutoring sessions, and the voter-suppression scheme backfired. Black voter-registration continued to rise, but blank sheets confused and frustrated many unprepared white Virginians.

Democratic Party leaders and later the Byrd Organization mastered control of the electorate from the 1920's into the 1960's. Voter suppression was so effective that only 10-12% of the eligible voters actually participated in elections. Candidates endorsed by the "organization" led by Harry F. Byrd were assured victory with the support of no more than 7% of the potential voters.

The key to election was campaigning for support of Byrd allies who occupied local offices, the "courthouse clique," rather than campaigning for support from voters. In 1947 E. O. Key described the anti-competitive election process in Virginia as a "museum of democracy" rather than a vibrant process to determine priorities of the citizens.

After World War II, the Byrd Organization was threated from inside the Democratic Party by "Young Turks" who desired more funding for public education and services in urbanizing areas.

Federal court rulings, the 24th Amendment to the US Constitution eliminating poll taxes for Federal elections, and civil rights laws passed by the US Congress expanded the electorate in the 1960's. The Republican Party gained supporters in reaction to Senator Harry Byrd's leadership of the massive resistance approach to Federal mandates for desegregation, culminating in the election of a Republican as Governor in 1969.

Dr. William Ferguson Reid was the first person of color elected to the General Assembly in the 20th Century. He won a seat in the House of Delegates in 1967. Douglas Wilder became the first black man to serve in the State Senate after Reconstruction by winning a special election in 1969. Wilder became Lieutenant Governor in 1985 and Governor in 1989.

The first black woman elected to the House of Delegates was Yvonne B. Miller, elected in 1983. She became the first black woman to serve in the State Senate when she won election to that body in 1987.

The pace of increasing diversity in the state legislature was slow, but by the start of the 2024 General Session the change was clear. The Lieutenant Governor, the Speaker and the Majority Leader in the House of Delegates, and the powerful chairs of the "money committees" in each house were black.

Seven of the 40 members of the State Senate and 24 of the 100 members of the House of Delegates were black. That exceeded the previous peak of black legislators in 1869. Overall, there were 41 nonwhites elected to serve in the 2024 General Assembly.³⁵

At the start of the 2024 General Assembly, Lt. Gov. Winsome Earle-Sears, House Majority Leader Don Scott and Senate president pro tempore Louis Lucas sat behind Youngkin
Source: Virginia House of Delegates Video Streaming, Regular Session (Janury 10, 2024)

broadening the electorate after World War II led to greater diversity in the 2024 General Assembly
Source: Black Virginia News, How a Bold Black Firm Redefined Virginia's Political Future, Richmond Casino Vote Map Breakdown, Threat to Democracy: Trump Dominates Latest NH Poll

The processes used for disfranchising blacks also limited the potential for Native Americans to vote in Virginia.

Native Americans were not allowed to vote when Virginia was a colony, or after 1776. Federal laws regarding Native Americans were not relevant in Virginia, since there were no Federal treaties with Virginia tribes. Whites managed to buy the land in all but two areas once reserved for different tribes. The Pamunkey and Mattaponi managed to retain control of land, but lacked civil rights. White trustees were appointed to represent them in courts.

"Indians not taxed" were legally excluded from voting in states other than Virginia. The US Supreme Court, in an 1884 case, ruled that members of Federally-recognized tribes were not citizens as defined by the 14^th Amendment.

The Indian Citizenship Act of 1924 explicitly gave Native Americans the right to vote, but that same year the Virginia General Assembly passed the Racial Integrity Act. Discrimination against Native Americans in Virginia was based on a perception that they were so intermixed with blacks that the "Indian" identify had disappeared. Rather than acknowledge that the Indian Citizenship Act of 1924 would be relevant in Virginia, the registrar of Virginia's Bureau of Vital Statistics sought to classify all Virginians as either "white" or "colored." Walter Plecker claimed that anyone with one drop of African blood was black.

The disfranchisement on poor whites, blacks, and Native Americans reflected the ancient philosophy that an educated, wealthy alite should have more political power than the average citizen. In Rome, Cato the Younger was one of the "optimates," wealthy landowners who opposed the "populares" proposal to expand the number of citizens allowed to vote. Cato was celebrated by Southern leaders after the American Civil War in 1861-65 due to his Stoic acceptance of defeat without sacrificing his high values. Cato committed suicide rather than accept a pardon from Julius Ceasar; he was unwilling to be ruled by a victor who he thought had such a lower standard of morality.

William F. Buckley, conservative publisher of the National Review, supported the argument that white Americans were "the advanced race." In a 1965 debate at Cambridge University with James Baldwin, Buckley claimed that white privilege was appropriate because most black Americans were culturally deficient and not qualified to make public policy decisions. In his opinion, full civil rights did not extend to those who had not yet become as civilized as Buckley's peers.

When challenged by an audience member at Cambridge to allow blacks in Mississippi to register and vote in elections, Buckley revealed the elitist perspective when responding:³⁶