Judge indicates support for disenfranchised voters in challenge to Virginia's felony voting laws

RICHMOND, Va. (CN) —  A judge signaled that he was likely going to rule in favor of a pair of disenfranchised voters Thursday who argued Virginia’s felony voting law violates a 150-year-old federal statute.

U.S. District Judge John Gibney, a Barack Obama appointee, said that while he was leaning toward the plaintiffs, he wanted further briefing on the impact of a favorable ruling. He also indicated support for certifying a class that includes all Virginians who are currently or will be disqualified from voting due to convictions for crimes that were not considered felonies at common law in 1870.

“We’re very optimistic about the judge’s comments at the end of the hearing,” attorney Brittany Amadi, partner at Wilmer Cutler, representing the plaintiffs, said in an interview. “Our plaintiffs have been waiting for some, some of them years and years to get their voting rights back, and so we’re very excited about the opportunity for those plaintiffs to restore their rights.”

The plaintiffs, Tati King and Toni Johnson, who the state disenfranchised after drug- and child-neglect-related felonies, claim that Virginia’s felony disenfranchisement scheme violates the Virginia Readmission Act of 1870, which restored federal representation for the Confederate commonwealth after the Civil War. 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 has amended its constitution twice, most recently in 1971, and today, a person convicted of any felony is stripped of their voting rights, which can be restored only by the governor. As a result, more than 300,000 Virginians cannot vote, including King and Johnson.

The plaintiffs argued that under the act, the state can only disenfranchise those convicted of crimes considered to be common law felonies in 1870, including murder, arson, sodomy, robbery and larceny. Professor Carissa Byrne Hessick of the University of North Carolina School of Law identified 1,096 modern Virginia statutory felonies that were not felonies at common law in 1870 in her expert report, including offenses related to drug possession and distribution.

Gibney said that although he believed the constitution’s changes violated the act, he wants further briefing on how best to issue an injunction.

“It looks to me the statute is pretty wrong," the Barack Obama appointee said. “But someone needs to provide guidance to those in the field."

Gibney said he was concerned about how local registrars would determine who to reenfranchise. Gibney asked both parties to compile a list of felonies that no longer require disenfranchisement.

The state argued that only Congress can decide whether a state government is complying with the act.

“We have 150 years of history here,” State Solicitor General Kevin Gallagher said. “Congress has never held Virginia out of compliance.”

The Fourth Circuit rejected the state’s previous argument that it is entitled to sovereign immunity in December 2024, holding that the plaintiffs could sue under the Ex parte Young doctrine, which permits lawsuits against state officials even when the state itself is immune from the claims.

The state attempted to exclude Hessick’s expert report, claiming it contained legal conclusions. However, Gibney stated he could consider the report without bias, unlike a jury.

The Fourth Circuit in August rejected another challenge from a disenfranchised voter who argued the scheme violates a constitutional principle prohibiting administrators from exercising unfettered discretion over whether to grant licenses that implicate an individual’s First Amendment rights.

The ruling will not impact Virginia’s statewide elections slated for Nov. 4.

Democrats in the state legislature initiated a two-year process in the spring to amend the constitution to automatically restore voting rights to felons upon completion of their sentences.

Attorneys representing the state declined to comment. The ACLU of Virginia also represented the plaintiffs in the case.