Judge says Virginia violated Reconstruction Era law by disenfranchising certain felons

RICHMOND, Va. (CN) — A federal judge ruled in favor of two disenfranchised Virginia voters Thursday, concluding the state’s broad felon disenfranchisement policy violates a 150-year-old federal statute.

“For well over a century, the Commonwealth of Virginia has disobeyed a federal law designed to protect the right of former enslaved people to vote,” U.S. District Judge John Gibney wrote. “Nearly one hundred and twenty-five years after Senator Glass pleaded to ’emancipate Virginia’ from Black voters, a class of would-be voters appears before this court asking for true emancipation at the commonwealth’s ballot boxes.”

Gibney, a Barack Obama appointee, granted an injunction barring Virginia from disenfranchising anyone whose convictions stem from felonies created after 1870, when Congress passed the Virginia Readmission Act.

Not long after passing the Reconstruction Era law, Virginia lawmakers widened the net of felons they could disenfranchise. Gibney ruled that the act trumps any subsequent constitutions the commonwealth adopted.

“If its amended constitution disenfranchises someone for any other reason, the commonwealth violates the act,” Gibney wrote. “Any other reading ignores ordinary meaning and contravenes statutory structure.”

The commonwealth, under the leadership of now-former Republican Attorney General Jason Miyares, argued that the act gives Virginia the authority to disenfranchise anyone who commits offenses punishable by death or by imprisonment in state prison, including newly created felonies.

Gibney said this reading of the act fails to account for context, including that the act followed the Military Readmission Act, which detailed the conditions that former Confederate states needed to satisfy before Congress would admit them through a Readmission Act.

“The MRA told Virginia not to disenfranchise anyone besides rebels and common-law felons,” Gibney wrote. “The Virginia Readmission Act confirmed that Virginia listened.”

The Readmission Act only allows southern states to disenfranchise as a punishment for participating in a rebellion or for committing what, at the time, was a common law felony. The common law felonies in 1870 were limited to arson, burglary, escaping from prison, larceny, manslaughter, mayhem, murder, rape, robbery, sodomy and suicide. The injunctive ruling refranchises those with convictions for drug offenses, which weren’t in consideration in the 1870 law.

“Congress sought to assure that the South would honor the hard-won rights of Black Americans,” Gibney wrote. “Guaranteeing them the right to vote, and limiting the state’s ability to deprive them of that right, became a central congressional purpose of the Virginia Readmission Act.”

Attorney Jared Davidson of Protect Democracy, representing the disenfranchised voters, said the ruling opens the door for disenfranchised voters in other southern states with readmission acts.

“While this decision applies only to Virginia, it provides a pathway for individuals in other former Confederate states across the South to have their voting rights protected,” Davidson said.

Virginia has repeatedly tried to avoid following the purpose of the act, such as in 1876 when it added poll taxes and began disenfranchising those convicted of petty larceny. Virginia further restricted voting rights in 1902 when it adopted a constitution disenfranchising people convicted of treason, bribery, obtaining money under false pretenses, embezzlement, forgery or perjury. Finally, in 1971, Virginia’s newly adopted constitution explicitly allowed the disenfranchisement of anyone convicted of a felony.

According to the Sentencing Project, the measures aimed to keep as many Black people from voting as possible, and continue to echo as Black people comprise 46% of all disenfranchised Virginians — despite only making up around one-fifth of the voting age population.

“I am overjoyed at today’s ruling and what it means for thousands of Virginians,” plaintiff Tati King said. “After so many years of fighting for my rights, I will finally be able to participate in our democracy and exercise my vote as an American citizen.”

The 1971 constitution also gave the governor the sole authority to restore individuals’ voting rights with unbridled discretion. Felons and criminal justice reform groups have repeatedly challenged this authority, which is unique to Virginia, in court.

King filed the lawsuit while Miyares was in office. Jay Jones, the current Democratic attorney general, did not respond to a request for comment on whether his office would appeal the ruling.

The ruling comes as Virginia lawmakers, many of whom, including the Speaker of the House of Delegates, Don Scott, identify as Black, work to broaden voting rights for felons. A constitutional amendment, which voters will likely vote on in November, provides the automatic restoration of voting rights after a citizen completes their period of incarceration.

“Virginia’s government has blatantly broken the law for more than a century by disenfranchising everyone with a felony conviction – a violation that has disproportionately affected Black and Brown Virginians,” ACLU-VA Senior Supervising Attorney Vishal Agraharkar said. “Today, the Commonwealth is finally free of that Confederate legacy. We’re elated for the hundreds of thousands of Virginians whose voting rights will be restored thanks to today’s ruling.”