Virginia officials look to Fourth Circuit to dodge claims brought under historical felony voting law

(CN) — A panel of Fourth Circuit Court of Appeals judges considered the impact a Reconstruction-era federal law should have on disenfranchised felon voters in Virginia as the commonwealth’s governor and secretary argued at a Tuesday hearing that they shouldn’t be held liable for enforcement of the historical law.

Tati Abu King and Toni Heath Johnson — both of whom are convicted felons, and are joined by Bridging The Gap in Virginia, a nonprofit that provides services for former inmates — argue their inability to vote violates the Virginia Readmission Act of 1870, which restored federal representation for Virginia after the Civil War.

The act, which remains in effect to this day, contains a caveat that prohibits the once-renegade state from adopting constitutional provisions to expand its disenfranchisement powers.

After a federal court denied Eleventh Amendment immunity to the government defendants, including Virginia Governor Glenn Youngkin and Secretary of the Commonwealth Kelly Gee, because of the Ex parte Young doctrine which allows lawsuits to be brought against state officials even when the state itself is immune to the claims.

Representing the state officials, attorney Charles J. Cooper of the D.C.-based Cooper & Kirk argued Tuesday the doctrine did not apply in this case. The plaintiffs did not seek to protect an individual federal right, Cooper argued, nor were they seeking an anti-suit injunction.

U.S. Circuit Judge Toby Heytens, an appointee of Joseph Biden, questioned whether there were only two ways a plaintiff could overcome sovereign immunity under the doctrine.

The U.S. Supreme Court has not said so “in such explicit terms,” Cooper responded, but he said case law supported the theory. He acknowledged this case was difficult to parse because readmission laws are unique and have rarely been enforced— he could find only one case from the 1950s.

U.S. Circuit Judge Roger Gregory said it did not matter if the law was rarely enforced.

“In 1870, it was very clear that was the basis upon which Virginia was admitted and allowed to have congressional representation,” the appointee of Bill Clinton said. “It’s justice delayed, perhaps.”

Cooper also argued the governor should be dismissed from the suit since his powers are limited to restoring voting rights to felons, not disenfranchising them. Felons lose their voting rights automatically under the constitution and election officials are responsible for implementing it — not the governor or the secretary.

“If you look at the allegations and what they are seeking here, there’s nothing particular to the governor or the secretary,” Cooper said.

If the plaintiffs are asking for a court order that would require the governor to restore the voting rights of felons, that would be “well beyond the judicial purview,” he added.

Heytens appeared to agree with Cooper’s assessment. He grilled Brittany Amadi, an attorney with the D.C.-based law firm Wilmer, Cutler, Pickering, Hale and Dorr representing the plaintiffs, on what role the governor has played in enforcement of the constitutional provision.

“He’s not preventing anyone from voting,” Heytens said. “He’s not restoring people’s rights, which, admittedly, he could do, but how is that enforcing the ongoing violation?”

Cooper argued Congress had sole authority to enforce the law, such as by removing Virginia’s federal delegation from its ranks.

Amadi disagreed, arguing “there’s no explicit remedy laid out in the Virginia Readmission Act, so we don’t believe it falls within the intent to foreclose equitable relief.”

Gregory also expressed skepticism about the argument.

“This (law) was a demonstrable way to show that everybody should be treated equally, potentially through franchisement. It’s not about widgets — it’s about people. It’s about rights," he said. “To say we can’t do anything about it because the whole world would have to be turned upside down in order to give a remedy? I don’t think so.”

The three-judge panel was rounded out by U.S. Circuit Judge Paul Niemeyer, a George H.W. Bush appointee.

The 1870 law initially 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 .

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