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. County officials were directed to create and maintain registers of all people convicted in local courts, which documented who had lost the right to vote.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 originally to suppress the African-American vote in 1830, since only whites were voting in 1830.

The Fifteenth Amendment was ratified in 1870, theoretically ensuring black men the right to vote. The Virginia legislature then took advantage of a provision in the 14th Amendment, which said:3

But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

The key clause was "except for participation in rebellion, or other crime." In 1876, the General Assembly added petit larceny to the list of crimes which barred a person from voting.

In 1877, Federal troops were withdrawn from Virginia as part of the bargain to resolved the disputed 1876 presidential election and place Rutherford B. Hayes in office. That left local officials able to use the power of white sheriffs and white juries to selectively convict black men of crimes. Conviction disfranchised blacks who voted consistently for Republican candidates (the "party of Lincoln"), or for the Readjuster Party until it collapsed in 1883.

Intimidation and manipulation of the voting process were also used to disfranchise voters not expected to support conservative Democratic candidates, minimizing the impact of the Fifteenth Amendment. Voting officials were almost always members of the Democratic Party after the Readjuster Party was defeated in 1883. Democratic operatives, stationed at key precincts, used a list of black men who had been convicted of petit larceny or other crimes to challenge the right of black people to vote. Election officials segregated voters into white and "colored" lines, then selectively sped the white voters through the process while delaying black voters.

Disfranchising black Republicans and associating the Democratic Party with white power made Virginia one of the one-party states in the South. After the defeat of the Readjuster Party in 1883, the primary of just the Democratic Party determined who would be elected in the general election. That lasted for nine decades, until the realignment of the political parties and the Republicans became the conservative option for local/state offices (as well as national offices) in 1973.

Disfranchising convicts discriminated against blacks for the next 150 years, since minorities were convicted at far higher rates than whites:4

As of 2010, over 20 percent of the state's voting-age African American population could not vote as a result of a felony conviction, and nearly 7 percent of the state's total population 18 and older was disenfranchised. These statistics reflect both the extent of Virginia’s felon disenfranchisement laws and the fact that African Americans in Virginia are currently incarcerated at a rate of approximately six times greater than the white population.

The governor gained the power to restore voting rights when a new state constitution was adopted in 1869. A Virginia Supreme Court decision in 1883, Edwards v. The Commonwealth, ruled that a pardon alone would not automatically restore citizenship rights. Governors had to separately re-enfranchise those who had been disqualified, for whatever reason.

The provision in the state constitution that stripped away the right to vote from those convicted of petit larceny was retained in the 1902 constitution, but removed in the 1971 revision. In 1982, 63% of the voters rejected a proposed constitutional amendment that would have allowed the General Assembly to modify Section 1, Article 2 of the state constitution and alter the automatic disfranchisement of felons.

The state constitution still says (emphasis added):5

Section 1. Qualifications of voters

In elections by the people, the qualifications of voters shall be as follows: Each voter shall be a citizen of the United States, shall be eighteen years of age, shall fulfill the residence requirements set forth in this section, and shall be registered to vote pursuant to this article. No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority. As prescribed by law, no person adjudicated to be mentally incompetent shall be qualified to vote until his competency has been reestablished...

In 2002, Democratic Governor Mark Warner revised the process for restoring voting rights. He reduced the traditional waiting period after sentencing for non-violent crimes from five-seven years down to three years. In 2013, Republican Governor Bob McDonnell made 350,000 felons eligible for restoration, if they had completed their sentences and paid all costs mandated by a court. At that time, only 3% of felons had managed to complete the process and get their rights restored by the governor.

In 2016, Governor McAuliffe 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 would regain civil rights, including the right to vote.

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, and he had to individually re-enfranchise the felons:6

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.

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)

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:7

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.8

in his official portrait, Gov. Terry McAuliffe showed himself working on his rights restoration initiative
in his official portrait, Gov. Terry McAuliffe showed himself working on his rights restoration initiative
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.9

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:10

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.11

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.12

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.13

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; "More Than An Entry In A Register: Local Government Convict Registers," Out of the Box blog by Library of Virginia, May 24, 2018, http://www.virginiamemory.com/blogs/out_of_the_box/2018/05/24/local-government-convict-registers/ (last checked May 28, 2018)
3. "The Constitution: Amendments 11-27," National Archives, https://www.archives.gov/founding-docs/amendments-11-27 (last checked June 6, 2018)
4. "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; Helen A. Gibson, "Felons and the Right to Vote in Virginia: a Historical Overview," The Virginia NewsLetter, Weldon Cooper Center for Public Service, University of Virginia, Volume 91 Number 1 (January 2015), pp.3-4, https://ceps.coopercenter.org/sites/ceps/files/Virginia_News_Letter_2015_Vol._91_No_1.pdf (last checked May 28, 2018)
5. "Official Election Results, 1982," Commonwealth of Virginia, https://ia802703.us.archive.org/3/items/officialelection1982virg/officialelection1982virg.pdf; Helen A. Gibson, "Felons and the Right to Vote in Virginia: a Historical Overview," The VirginiaNews Letter, Volume 91 No. 1 (January 2015), University of Virginia Weldon Cooper Center for Public Service, p.5, https://ceps.coopercenter.org/sites/ceps/files/Virginia_News_Letter_2015_Vol._91_No_1.pdf (last checked June 6, 2018)
6. Howell v. McAuliffe, Virginia Supreme Court, Record No. 160784, July 22, 2016, http://www.courts.state.va.us/opinions/opnscvwp/1160784.pdf (last checked June 6, 2018)
7. "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; elen A. Gibson, "Felons and the Right to Vote in Virginia: a Historical Overview," The VirginiaNews Letter, Volume 91 No. 1 (January 2015), University of Virginia Weldon Cooper Center for Public Service, p.5, p.7, https://ceps.coopercenter.org/sites/ceps/files/Virginia_News_Letter_2015_Vol._91_No_1.pdf (last checked June 6, 2018)
8. "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)
9. "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)
10. "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)
11. "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)
12. "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)
13. "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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