RICHMOND, Va. (WRIC) – A provision in Virginia’s Constitution that automatically strips the right to vote from those with felony convictions is being challenged in federal court.
Virginia is among three states that automatically disenfranchise residents with past felony convictions, requiring them to petition the governor to regain their right to vote, run for office and serve on a jury.
Two advocacy nonprofits — the American Civil Liberties Union of Virginia and Protect Democracy – and the WilmerHale law firm sued Gov. Glenn Youngkin (R) and other state officials on behalf of three disenfranchised people and the nonprofit Bridging the Gap in Virginia.
“As a minister, I’m a firm believer in second chances and being able to vote would be a chance for me to participate fully in my community,” Melvin Wingate, one of the plaintiffs, said in a statement, “but since I was released in 2001, I’ve been unable to vote in five presidential elections, six midterm elections, and five Virginia gubernatorial elections.”
The lawsuit, which the ACLU of Virginia called “a first-of-its-kind,” was filed on June 26 in the U.S. District Court for the Eastern District of Virginia.
It alleges that Virginia’s law violates a 150-year-old federal law that set the terms of the commonwealth’s readmission into the Union after the Civil War, arguing the current law includes a broader list of crimes for voter disenfranchisement than laid out in the Virginia Readmission Act.
The Readmission Act aimed to prevent targeted, racial disenfranchisement during the Reconstruction era, allowing states to only strip away voting rights for those convicted of crimes “now felonies at common law” in 1870, which included murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem and larceny.
“Despite the Virginia Readmission Act’s clear prohibition against depriving citizens of the right to vote for crimes that were not felonies at common law in 1870, Virginia later amended its Constitution to disenfranchise citizens for conduct that was not a ‘felon[y] at common law,’ in 1870,” the lawsuit states. “Indeed, Virginia’s current Constitution automatically disenfranchises citizens with any felony conviction.”
More than 300,000 Virginians are estimated to not have voting rights due to a felony conviction, according to the lawsuit, making Virginia the state with the fifth highest number of disenfranchised citizens for felony convictions.
There has been a disproportionate impact on Black Virginians, the lawsuit argues. The suit states that Black Virginians account for nearly half of those disenfranchised because of a felony conviction despite comprising less than 20% of the commonwealth’s voting-age population.
“Felony disenfranchisement among Black voting-age Virginians is nearly two-and-a-half times as high as the rest of Virginia’s voting-age population,” the lawsuit states. “And, perhaps most significantly, the rate of felony disenfranchisement among Black voting-age Virginians is more than twice as high as the rate of felony disenfranchisement among the entire United States Black voting-age population.”
Unlike the other methods to suppress Black voters at the time, such as poll taxes and literacy tests, ACLU of Virginia Senior Supervising Attorney Vishal Agraharkar said felony disenfranchisement has remained and expanded in Virginia.
“If we were to win this lawsuit, that would go a significant amount of the way to eliminating felony disenfranchisement in Virginia,” Agraharkar told 8News in an interview, “but it wouldn’t get us all the way there.”
Agraharkar pointed to previous legislative efforts to allow voters to decide whether to make the voting rights restoration process automatic in Virginia, which have failed to pass the Virginia General Assembly.
The lawsuit seeks to automatically restore voting rights for those with felony convictions other than those outlined in the Readmission Act. Macaulay Porter, a Youngkin spokeswoman, declined to comment on pending litigation.
Virginia is facing another lawsuit challenging the Youngkin administration’s changes to the state’s voting rights restoration process. Youngkin broke from his predecessors by removing the automatic restoration process for many and requiring Virginia to consider each case individually.
