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
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
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 the opportunity for a free black man to vote in 1830 was tiny. However, the governor took note of how the percentage of free blacks in jail was four times greater than the percentage of whites, so the racial element was considered when the 1830 law was passed.
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. Arresting and convicting black men of petty theft was an easy process, when judges were exclusively conservative white men and juries were filled with white men who still viewed blacks through the lens of enslavement. Those convicted might serve a short sentence, but could be blocked from voting for the rest of their life.
The potential for Federal troops to ensure equal application of the law disappeared in 1877. The US Army was withdrawn from Virginia as part of the bargain to resolved the disputed 1876 presidential election and place Rutherford B. Hayes in office. Without Federal law enforcement, local officials were able to use the power of white sheriffs and white juries to selectively convict black men of crimes and disfranchise a bloc 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 used to disfranchise voters not expected to support conservative Democratic candidates, minimizing the impact of the Fifteenth Amendment. Election officials segregated voters into white and "colored" lines, then selectively sped the white voters through the process while delaying black voters.
Courts were required to send a list of those convicted to registrars. Electoral boards, registrars, and local police were almost always conservative white men. Democratic operatives, stationed at key precincts on election day, reviewed the list of those who had been convicted of petit larceny or felonies and challenged the right of black men to vote.
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 one-party dominance based on maintaining white supremacy lasted for nine decades. A republican was finally elected governr in 1969, as a relative liberal who made promises to support racial equality. The realignment of the political parties in Virginia, in which the Republicans became the conservative option for local/state offices - as well as national offices - occurred in 1973.
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. After the turbulent 1960's and passage of civil rights legislation at he Federa level, the automatic loss of voting rights for petit larceny was dropped from the Virginia constitution in 1971. That mitigated the impact of the disfranchisement provision, but did not eliminate racial imbalance. Felons were still automatically disfranchised after implementation of the constitutional amendments in 1971. Disfranchisement based on felony convictions still discriminated against blacks, 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.
Governors had a way to counter the racial imbalance. When a new state constitution went into effect in 1870, the governor gained the power to restore voting rights. A Virginia Supreme Court decision in 1883, Edwards v. The Commonwealth, ruled that pardons should not be used to restore citizenship rights, but governors could still take a separate action to re-enfranchise those who had been disqualified.
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. As of 2021, the state constitution still said (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...
Federal courts in 1996 (Perry v. Beamer and in 2000 (Howard v. Gilmore) upheld the legality of Virginia's process for disfranchising felons. Judges ruled that the state was not violating the 1965 Voting Rights Act.
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. Until that time, only 3% of felons had managed to complete the process to apply for restoration and get the governor to allow them to vote.
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 used the powers granted to him in Article V, Section 12 of the Constitution of Virginia to restore civil rights, including the right to vote to 206,000 people in the state's database of felons eligible for restoration under McAuliffe's criteria.
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
Source: Commonwealth of Virginia, Restoration of Rights (April 22, 2016)
To overcome that Virginia Supreme Court ruling, the governor proceeded to process paperwork for the 206,000 individuals. 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
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, Lieutenant 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
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.
Lifting 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
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. Neither did the restoration of rights authorized by Governor Northam, who followed Governor McAuliffe's example and restored voting rights to 22,000 felons in his 18 months in office.12
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.13
To regain the right to vote in Virginia, people convicted in state or Federal court in Virginia of a felony still needed a clemency action from the governor. The 2021 General Assembly approved a constitutional amendment to automatically authorize felons to vote, once they were released from incarceration and had completed the terms of their sentence:14
- (1) No person who has been convicted of a felony shall be
qualified entitled to vote unless his civil rights have been restored by the Governor or other appropriate authority. during any period of incarceration for such felony conviction, but every such person who was qualified to vote prior to such incarceration, upon release from incarceration for that felony conviction and without further action required of him, shall be invested with all political rights, including the right to vote; and
As prescribed by law, no (2) No person who has been adjudicated to be mentally incompetent by a court of competent jurisdiction to lack the capacity to understand the act of voting shall be qualified entitled to vote during such period of incapacity until his competency capacity has been reestablished as prescribed by law.
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.15
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
- Brennan Center for Justice
- The Disenfranchisement of Ex-Felons, by Elizabeth Hull
- Encyclopedia Virginia
- Harvard Law Review
- Human Rights Watch
- Library of Virginia
- Project Vote
- University of Virginia - Virginia Center for Digital History
- Virginia State Board of Elections
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; 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), https://ceps.coopercenter.org/sites/ceps/files/Virginia_News_Letter_2015_Vol._91_No_1.pdf (last checked March 30, 2021)
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 Virginia News 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; Helen A. Gibson, "Felons and the Right to Vote in Virginia: a Historical Overview," The Virginia News 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 March 30, 2021)
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," Commonwealth 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. "Part of the apology tour or business as usual? Northam announces he restored civil rights to nearly 11,000 felons," Virginia Mercury, February 13, 2019, https://www.virginiamercury.com/blog-va/part-of-the-apology-tour-or-business-as-usual-northam-announces-he-restored-civil-rights-to-nearly-11000-felons/; "Governor Northam Announces Civil Rights Restored to More Than 20,000 Virginians," Governor of Virginia news release, October 9, 2019, https://www.governor.virginia.gov/newsroom/all-releases/2019/october/headline-847902-en.html (last checked October 10, 2019)
13. "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)
14. "Senate Joint Resolution No. 272," Virginia General Assembly, Special Session 1, 2021, https://lis.virginia.gov/cgi-bin/legp604.exe?212+ful+SJ272S2 (last checked February 27, 2021)
15. "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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