Disfranchising Convicted Felons and Restoring Their Right to Vote

Voting is a civil right. Each state must comply with Federal civil rights laws and the US Constitution, but each state has flexibility in determining if people convicted of a felony lose the right to vote in local, state, and Federal elections.

Virginia became the first state to ban felons from voting, in 1830. When Virginia adopted its second constitution that year, white males who met the minimum property requirements lost the right to vote once they were convicted of an "infamous offence." Prior to the Civil War, most other states followed the example of Virginia and banned felons from voting.1

since 1830, the Constitution of Virginia has declared that people convicted of a felony lose the right to vote
since 1830, the Constitution of Virginia has declared that people convicted of a felony lose the right to vote
Source: For Virginians: Government Matters, Virginia Constitution of 1830

That restriction has been retained and expanded in all subsequent constitutions. In 1851, conviction for bribery was added as a disqualifying act. Specific reference to felony convictions was added starting in 1869.2

since 1830, the Constitution of Virginia has declared that people convicted of a felony lose the right to vote

since 1830, the Constitution of Virginia has declared that people convicted of a felony lose the right to vote

since 1830, the Constitution of Virginia has declared that people convicted of a felony lose the right to vote

since 1830, the Constitution of Virginia has declared that people convicted of a felony lose the right to vote
since 1830, the Constitution of Virginia has declared that people convicted of a felony lose the right to vote
Source: For Virginians: Government Matters, Virginia Constitution of 1830, 1851, 1869; 1902, Commonwealth of Virginia, Constitution of Virginia, 1971

Disfranchising felons was not a law passed by the General Assembly to suppress the African-American vote in 1830, since only whites were voting in 1830.

After the Civil War, the Federal government required Virginia to restructure its government before being allowed back into the Union. The Constitution of 1869 gave more power to the governor, including the authority to restore voting rights to felons.3

Governor McAuliffe recognized in 2016 that disfranchising felons discriminated against minority groups, since they were convicted of felonies at far higher rates than whites. The governor issued a blanket restoration of rights for all felons who had served their time and had completed any supervised release, parole or probation requirements. The governor did not issue "pardons" that forgave criminals for their past actions, but he did use the powers granted to him in Article V, Section 12 of the Constitution of Virginia so 200,000 people woud regain civil rights, including the right to vote.

in 2016, Governor McAuliffe issued a blanket pardon for 200,000 felons who had served their time and had completed any supervised release, parole or probation requirements
in 2016, Governor McAuliffe issued a blanket pardon for 200,000 felons who had served their time and had completed any supervised release, parole or probation requirements
Source: Commonwealth of Virginia, Restoration of Rights (April 22, 2016)

Much of the news coverage suggested focused on how the newly-enfranchised voters might support Democratic candidates in the 2016 election, and Republicans filed suit to block the blanket restoration of rights.

The Virginia Supreme Court quickly ruled in a 4-3 decision that the governor's blanket restoration order was not constitutional:4

Never before have any of the prior 71 Virginia Governors issued a clemency order of any kind — including pardons, reprieves, commutations, and restoration orders — to a class of unnamed felons without regard for the nature of the crimes or any other individual circumstances relevant to the request. To be sure, no Governor of this Commonwealth, until now, has even suggested that such a power exists. And the only Governors who have seriously considered the question concluded that no such power exists.

In this case, Governor McAuliffe asserts that his clemency power in this matter is "absolute" under Article V, Section 12 of the Constitution of Virginia... We respectfully disagree. The clemency power may be broad, but it is not absolute.

To overcome that ruling, the governor proceeded to process paperwork for the 206,000 individuals in state databases of felons eligible for restoration of civil rights. He restored the right to vote, plus the right to hold public office, serve on a jury, and act as a notary public, but did not restore the right to purchase or possess a firearm.

In his final State of the Commonwealth address in 2018, Governor McAuliffe told the General Assembly and guests in the balconies:5

Like any relationship, we have had our rough patches.

I, for one, did not come into this job expecting the Republican leadership of the General Assembly to sue me for contempt over restoration of rights...

...The power of second chances also defined my proudest moment as governor. Many of you have heard me tell the story of standing on the steps of this building and ending more than 100 years of disenfranchisement and racial discrimination.

Since then, my team has worked with all three branches of government to finalize a process that we have used to restore the rights of more than 173,000 Virginians, more than any governor in the history of the United States of America!

Over the years, I have met hundreds of men and women whose rights were restored during my term. I’ve even introduced you to some from this desk.

Every one of those Virginians represents the same story of hope for a better life that we saw play out just this past election day, as these men and women went to the polls, many of them for the first time in their lives.

If you want to see the power of second chances, watch the videos that were posted on social media as grown men and women broke down in tears of joy after doing something that most people take for granted – voting in an election.

That is what citizenship looks like at its very best – and we should work together to encourage more of it, not less.

In his official portrait, Governor McAuliffe was painted in his workday office with an open notebook, working on rights restoration.6

Gov. McAuliffe had himself shown as working on rights restoration initiative in his official portrait
Gov. McAuliffe had himself shown as working on rights restoration initiative in his official portrait
Source: Richmond Times-Dispatch

Of the 168,000 whose rights were restored prior to the 2017 state elections, 46% were black and 42,000 people registered to vote. If they voted at the statewide average, then the governor's actions resulted in 19,000 additional votes in the 2017 elections.

That would equal an additional 1% of the total electorate. Even if all 19,000 new voters had supported the Democratic candidates for Governor, Lietenant Governor, and Attorney General, the additional votes would not have affected he outcomes of those races. Republican concerns that restoration of rights might benefit Democratic candidates had more relevance in the 2017 races for some of the 100 House of Delegates seats. A few were very close, and the 94th District race ended in a tie vote.7

the demographics of the restoration of rights reflected the demographics of felony convictions in the court system
the demographics of the restoration of rights reflected the demographics of felony convictions in the court system
Source: Commonwealth of Virginia, Restoration of Rights Demographics

The right to vote was important enough for 42,000 felons to chose to register. As one recipient noted:8

If I have to pay taxes and I am following the laws... I should have the right to decide who gets to make the laws.

Lifing the ban on voting by felons was presented by the McAuliffe administration as overcoming a Jim Crow-era law, designed to suppress the black vote. Some stories traced the ban back to new restrictions on voting that were included in the 1902 state constitution. That 1902 document did restrict the electorate, but the disfranchisement of felons had occurred 70 years earlier and was unrelated to later efforts to suppress the African-American vote.9

based on updates from the Virginia Election & Registration Information System (VERIS), local registrars remove newly-convicted felons from lists of registered voters
based on updates from the Virginia Election & Registration Information System (VERIS), local registrars remove newly-convicted felons from lists of registered voters
Source: Virginia Department of Elections, General Registrar and Electoral Board Handbook (p.75)

Governor McAuliffe's attempt at a mass restoration of rights in 2016, and then his individual actions for felons, did not change the laws of Virginia. People convicted of a felony (but not misdemeanor) in Virginia still lose the right to vote in Virginia automatically. If those convicted of a felony had been registered, them local election officials in 133 Virginia jurisdictions remove their names from the rolls of eligible voters.

United States attorneys provide lists of people convicted of a felony in Federal District Courts to the Virginia Department of Elections, which updates the Virginia Election & Registration Information System and provides the names to local registrars. The Virginia State Police uses its Central Criminal Records Exchange to updates the Virginia Election & Registration Information System monthly, sharing details of people convicted of felonies in state courts.10

To regain the right to vote in Virginia, people convicted in state or Federal court in Virginia of a felony still need a clemency action from the governor.

People convicted in other states, including those convicted in Federal courts there, may have their voting rights restored by whatever process is used in that state. Some never withdraw the right to vote, some automatically restore it after completion of the jail sentence, some restore the right automatically after completion of parole/probation (sometimes after an extra waiting period), and some require action such as a pardon by the governor.

If a felon's rights have been restored by the process used in another state, then Virginia will allow that person to vote.11

Disfranchisement in Virginia

Voting in Colonial Virginia

Voting in Modern Virginia

What Happens If the Vote Ends In a Tie?

felons convicted in other states whose rights were previously restored by that state's process may vote in Virginia
felons convicted in other states whose rights were previously restored by that state's process may vote in Virginia
Source: Virginia Department of Elections, Virginia Voter Registration Application

Links

References

1. "Virginia Constitution of 1830," For Virginians: Government Matters, http://vagovernmentmatters.org/archive/files/vaconstitution1830_8fbb7c9705.pdf; William Walton Liles, "Challenges To Felony Disenfranchisement Laws: Past, Present, And Future," University of Alabama Law Review, Volume 58, Issue 3 (2007), https://www.law.ua.edu/pubs/lrarticles/Volume%2058/Issue%203/liles.pdf (last checked December 26, 2017)
2. "Virginia Constitution of 1851," For Virginians: Government Matters, http://vagovernmentmatters.org/archive/files/vaconstitution1851_ded45111de.pdf; "Virginia Constitution of 1869" For Virginians: Government Matters, http://vagovernmentmatters.org/archive/files/vaconstitution1870_184f3135d4.pdf (last checked December 26, 2017)
3. "Journal of the Constitutional Convention of the State of Virginia: Convened in the City of Richmond December 3, 1867, by an Order of General Schofield, Dated November 2, 1867, in Pursuance of the Act of Congress of March 23, 1867, in Pursuance of the Act of Congress of March 23, 1867," Office of the New Nation, 1867, p.54, https://books.google.com/books/about/Journal_of_the_Constitutional_Convention.html?id=X-MoAAAAYAAJ (last checked December 26, 2017)
4. Howell v. McAuliffe, Virginia Supreme Court, Record No. 160784, July 22, 2016, http://www.courts.state.va.us/opinions/opnscvwp/1160784.pdf (last checked December 26, 2017)
5. "Restoration of Rights Demographics," Governor Terry McAuliffe, http://governor.virginia.gov/rordata; "Governor Terry McAuliffe Delivers Final State of the Commonwealth Address," Office of the Governor, January 10, 2018, https://governor.virginia.gov/newsroom/newsarticle?articleId=24842 (last checked January 12, 2018)
6. "Official portrait of Gov. Terry McAuliffe shows him working on felon rights restoration," The Roanoke Times, January 11, 2018, http://www.roanoke.com/news/politics/general_assembly/official-portrait-of-gov-terry-mcauliffe-shows-him-working-on/article_b7f16e51-e933-5fc6-80c5-f66cdc84fe2b.html; "Portrait of a politician," Daily Press, January 16, 2017, http://www.dailypress.com/news/opinion/dp-edt-mcauliffe-legacy-0117-story.html (last checked January 17, 2018)
7. "Restoration of Rights," Secretary of the Commonwealth, http://commonwealth.virginia.gov/judicial-system/restoration-of-rights_old/; "Governor McAuliffe’s Restoration of Rights Policy," Commowealth of Virginia, August 22, 2016, http://commonwealth.virginia.gov/media/6733/restoration-of-rights-policy-memo-82216.pdf; "The Racist Roots of Virginia's Felon Disenfranchisement," The Atlantic, April 27, 2017, https://www.theatlantic.com/politics/archive/2016/04/virginia-felon-disenfranchisement/480072/; "Terry McAuliffe's Second Try at Restoring Felon Voting Rights," The Atlantic, August 22, 2016, https://www.theatlantic.com/politics/archive/2016/08/virginia-felon-disenfranchisement-mcauliffe/496898/; "Virginia Makes Every Voter Count," New York Times, November 17, 2017, https://www.nytimes.com/2017/11/17/opinion/virginia-makes-every-voter-count.html; "How Letting Felons Vote Is Changing Virginia," The Atlantic, January 8, 2018, https://www.theatlantic.com/politics/archive/2018/01/virginia-clemency-restoration-of-rights-campaigns/549830/ (last checked January 9, 2018)
8. "In Virginia, ex-felons find empowerment in the voting booth," CNN, November 5, 2016, http://www.cnn.com/2016/11/05/politics/virginia-felons-voting-rights/index.html (last checked December 25, 2017)
9. "Levar Stoney wrongly traces Virginia felon voting ban to Jim Crow era," Politifact Virginia, June 6, 2016, http://www.politifact.com/virginia/statements/2016/jun/06/levar-stoney/levar-stoney-wrongly-traces-virginia-felon-voting-/ (last checked December 25, 2017)
10. "Title 24.2. Elections » Chapter 4. Voter Registration » § 24.2-409. Central Criminal Records Exchange to transmit lists of felony convictions to Department of Elections," Code of Virginia, https://law.lis.virginia.gov/vacode/title24.2/chapter4/section24.2-409/; "Table of Contents » Title 24.2. Elections » Chapter 4. Voter Registration » § 24.2-409.1. Department of Elections to transmit information pertaining to persons convicted of a felony in federal court," Code of Virginia, https://law.lis.virginia.gov/vacode/24.2-409.1/ (last checked December 29, 2017)
11. "Felon Voting Rights," National Conference of State Legislatures, November 28, 2017, http://www.ncsl.org/research/elections-and-campaigns/felon-voting-rights.aspx; "Voter Registration/List Maintenance," General Registrar and Electoral Board Handbook , Virginia Department of Elections, p.77, https://apps.elections.virginia.gov/grebhandbook/Files/GREB%202016.pdf (last checked December 29, 2017)


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