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(CN) — A Fourth Circuit panel ruled Thursday that a pair of disenfranchised felon voters can pursue a lawsuit against Virginia officials for violating a Reconstruction-era federal law.
Writing for the panel, U.S. Circuit Judge Toby Heytens found that several Virginia officials do not enjoy 11th Amendment immunity from claims under the Virginia Readmission Act of 1870, which restored federal representation for the Confederate commonwealth after the Civil War.
Heytens, a Joe Biden appointee, determined the plaintiffs have a right to sue under the Ex Parte Young doctrine, which permits lawsuits to be brought against state officials even when the state itself is immune to the claims.
The Virginia Readmission Act, which prohibits the commonwealth from barring citizens from registering to vote except for certain felony convictions, is a federal law, Heytens wrote, which meant the federal courts had authority to enforce it.
The panel determined two defendants, Virginia Governor Glenn Youngkin and Secretary of the Commonwealth Kelly Gee, should be dismissed from the case, however. Heytens wrote the officials had the power to restore voting rights but no role in administering the rules restricting voter eligibility, which meant they were not responsible for the claimed violations.
“If King and Johnson are right that their disenfranchisement was unlawful from the start, they have no need to ask the governor or the secretary to restore their voting rights because those rights were never validly taken away in the first place,” Heytens wrote.
The ACLU of Virginia, which is representing the plaintiffs in the lawsuit, celebrated the decision Thursday on social media.
“Virginia may no longer be a Confederate state … but our constitution is still oppressing Virginians today," Vishal Agraharkar, senior supervising attorney for the civil rights group, said in a statement.
Tati Abu King and Toni Heath Johnson, both of whom are convicted felons, joined with Bridging The Gap in Virginia, a nonprofit that provides services for former inmates, in the lawsuit filed in June 2023 in the Eastern District Court of Virginia.
They argued the 1870 law prohibited Virginia from amending the constitution to increase voting disenfranchisement, which was a political tool Southern states used during Reconstruction to strangle the nascent voting power of the formerly enslaved.
However, Virginia did amend its constitution twice, most recently in 1971. Today, a person convicted of any felony offense is stripped of their voting rights, which can only be restored by the governor.
As a result, more than 300,000 Virginians cannot vote, including King and Johnson.
“This impact has fallen disproportionately on Black Virginians — the very population Congress sought to protect with the Virginia Readmission Act,” the plaintiffs argue in their brief. “Although Black Virginians comprise less than 20% of Virginia’s voting age population, they account for nearly half of all Virginians disenfranchised due to a felony conviction.”
Claiming sovereign immunity, state officials asked a lower court to dismiss the case. In March, Senior U.S. District Judge John Gibney Jr. agreed to dismiss the nonprofit from the suit for lack of standing, but determined King and Johnson could seek federal relief under Ex Parte Young .
State officials appealed to the Fourth Circuit, which heard arguments in September.
Heyten was joined in his opinion by U.S. Circuit judges Paul Niemeyer, a George H.W. Bush appointee, and Roger Gregory, a Bill Clinton appointee.
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