Discriminatory Disenfranchisement in Virginia

December 4, 2009

Of Felons and Taints

Almost all states place some restriction on the rights of felons to vote. Three states–Kentucky, Florida, and Virginia–maintain a system of permanent disenfranchisement for convicted felons. There’s a long historical tradition of voting restrictions against felons, dating to well before the Constitution was ratified. Section 2 of the 14th Amendment explicitly acknowledges the practice of criminal disenfranchisement (and, to a degree, endorses it by not penalizing states during Congressional reapportionment for denying the franchise to those guilty of “participation in rebellion, or other crime”).

Given this long usage and constitutional recognition, lawyers often find it hard to challenge disenfranchisement laws as violating voters’ rights. Yet as we all know, not every law that appears neutral is constitutional. Literacy tests and poll taxes are both facially neutral, but both have long been recognized as acting to deprive non-white voters of their fundamental rights.

Still, challenges to disenfranchisement regimes are rarely successful. For example, a 2005 challenge to Florida’s law, was decimated by the 11th Circuit sitting en banc in the case of Johnson v. Bush (405 F.3d 1214). There, the court heard an appeal to a summary judgment against a group of felons seeking the restoration of their rights. The plaintiffs argued that Florida had re-authorized its felon disenfranchisement law in 1868 for the purpose of discriminating against black voters, and as such the law should be held invalid as intentionally discriminatory.

The 11th Circuit rejected this argument for two main reasons. First, they found the historical evidence of intentional discrimination in 1868 to be too weak to sustain the claims made. Second, the court held that, even assuming that the 1868 re-authorization was motivated by racial animus, Florida’s subsequent re-authorization of the disenfranchisement law a century later in 1968 (following a series of federal cases that undermined many of the state’s suffrage laws) was neither a mere “stylistic revision” nor a deliberate attempt to discriminate, and as such had removed the discriminatory “taint” from the 1868 version. Given those two conclusions, the court rejected the idea that the plaintiffs could show the state’s disenfranchisement law violated either the Equal Protection Clause or Section 2 of the Voting Rights Act.

Judge Kravitch’s opinion in Johnson established a very low burden for states with disenfranchisement laws that might have been passed for discriminatory reasons–any intervening revision between the time the law was initially drafted and the time of the challenge might well be enough to cleanse the law of its invidious taint. Constitutional revisions are not especially rare, and laws that had been previously enacted for invidious purposes might well survive if unnoticed or unchallenged during these revisions, or if the challenges to them lack sufficient legislative support.

But this is where things get interesting: Kravitch also notes that the “taint test” is most easily satisfied where the law at issue had never previously been challenged as racially discriminatory.

“Florida’s 1968 re-enactment eliminated any taint from the allegedly discriminatory 1868 provision, particularly in light of the passage of time and the fact that, at the time of the 1968 enactment, no one had ever alleged that the 1868 provision was motivated by racial animus.”

This prompts the question: what would happen in a situation where the previous version of a law was undeniably “motivated by racial animus”?

Consider this infamous quote from the 1901-02 Virginia Constitutional Convention:

“Discrimination! Why, that is precisely what we propose. That, exactly, is what this Convention was elected for–to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of legally, without materially impairing the numerical strength of the white electorate.”

That quote comes from Carter Glass, a future U.S. Senator and the very delegate who sponsored the state’s suffrage amendment.

This quote, from A.P. Thom, another prominent delegate, is just as clear as to the Convention’s intent:

We do not come here prompted by an impartial purpose in reference to negro suffrage. We come here to sweep the field of expedients for the purpose of finding some constitutional method of ridding ourselves of it forever.

…as is this one from R.L. Gordon, a delegate and commonwealth’s attorney for Louisa County:

I told the people of my county before they sent me here that I intended…to disenfranchise every negro that I could disenfranchise under the Constitution of the United States, and as few white people as possible.

(All quotes taken from Alex Keyssar’s The Right to Vote: The Contested History of Democracy in the United States.)

Now, two things are clear from these statements: first, the explicit intent behind the suffrage laws adopted at the Virginia Constitutional Convention in 1901-02 was to discriminate on the basis of race; second, these legislators believed that any law which did not specifically restrict the right to vote based on the voter’s race was constitutional.

Of course, under our modern jurisprudence, that second belief is false: a law enacted with the clear intent to discriminate is hard to sustain under the Equal Protection Clause.  However, Virginia, like Florida, has revised its state constitution since the offending provisions were enacted. A straightforward application of Judge Kravitch’s “taint test” would find that the current disenfranchisement law in Virginia is most likely sustainable (depending, of course, on the presumed absence of discriminatory intent at the subsequent revision). But is a test with such a low burden for the state really appropriate where the law was so thoroughly tainted at the outset? Would Kravitch consider the test satisfied if a law like Virginia’s had been reauthorized and the legislature was utterly indifferent to the racial question, choosing to reauthorize a law born of discrimination for a more neutral purpose, such as deterring crime?

While the 11th Circuit granted additional leeway to Florida where the intent behind their arguably discriminatory law was unclear, I believe the evidence from Virginia justifies a much more searching inquiry, and a much higher level of scrutiny than the 11th Circuit endorsed for Florida in Johnson. The greater the evidence of a law being used to intentionally and willfully discriminate, the greater the burden a state should face in keeping it on the books.

J.R. Lentini is a student at Georgetown University Law Center.

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