Virginia’s Potential State Constitutional Amendment and Voting Disenfranchisement
October 14, 2026
By William & Mary Law Student Contributor
Virginia may have the most elections of any state; however, Virginia has often been credited as being the most difficult state to vote in, especially for those convicted of a felony. During the election cycle this year, Virginians will have three amendments to vote on: (1) reproductive healthcare; (2) marriage equality; and (3) voting rights restoration for formerly incarcerated individuals. The third amendment is the most relevant to election law.
Before discussing voting rights, it is important to understand the process for Virginia’s specific constitutional amendments. For an amendment to get passed in Virginia, it must go through the process outlined in Article XII, Section 1. Firstly, a proposed amendment must be introduced in the General Assembly, where it has to pass a majority in both the House of Delegates and the Senate. Secondly, the amendment has to be reintroduced during the next legislative session, where it has to be passed by a simple majority a second time. Unlike normal bills, the amendment question goes directly to voters. The Governor does not have the ability to veto; however, the Governor still has to approve a referendum bill, but a Governor has never vetoed one before.
Virginia is one of four states that have statutorily banned formerly incarcerated individuals from voting, along with Iowa, Kentucky, and Tennessee. Currently in Virginia, a person eligible for rights restorations is able to petition a court or the Governor for the reinstatement of voting rights. There has been bipartisan effort among both Republican and Democratic governors to enfranchise formerly incarcerated individuals. Governors Warner and McDonnell restored voting rights for thousands of people in the 2000s, but Governors McAuliffe and Northam restored the rights of almost 300,000. Governor Youngkin heavily reversed this trend, leading to the ACLU suing Governor Youngkin in 2023 on voter disenfranchisement. Most recently, Governor Spanberger restored 66,000 citizens’ voting rights.
The amendment has multiple sections. The first section of Question 3 affirms a fundamental right of citizens to vote in the Commonwealth. The second clause denies voting during incarceration but automatically grants the right back once released. The third clause deals with “incapacitated” individuals; when found incapacitated by the court, the right to vote is revoked and can only be reinstated by a court. The clause broadens incapacitated individuals’ right to vote from those being found mentally incompetent at large by the court to restricting those who do not understand the act of voting.
O’Bannon v. King has further complicated voting rights restoration in Virginia. Article VI, Clause 2 of the Constitution, or the “Supremacy Clause”, establishes that federal law trumps state law; so many might wonder what the issue is and why there is still an amendment. As mentioned previously, it takes multiple years of voting through the legislature for an amendment to be put on the ballot. Court cases are often long and drawn out, so the legislature sought to put an end to the questioning voter initiative, whether the decision went for or against the Commonwealth. The court concluded that any convicted felon – other than those convicted of the original eleven common law felonies – could not be restricted from voting, and the Commonwealth would amend its voting laws; however, there have been numerous issues implementing the injunction, leading to a rehearing.
In August, the court reheard O’Bannon v. King on the following questions: (1) whether Virginia has followed the 1870 laws for its readmission to the Union following the Civil War and (2) whether the court can issue a further injunction on the speed of Virginia implementing electoral process changes. The court found that Virginia has long ignored the 1870 provision on the readmission to the Union, which is a federal law. The law was originally made for formerly enslaved individuals’ right to vote, stressing that Virginia cannot take away the right to vote except for punishments for crimes at common law. Since 1970, Virginia continually added statutory felonies which far exceeded the original eleven common-law felonies that the Commonwealth was allowed to remove voting rights for. The crimes at common law were arson, burglary, prison escape or rescue, larceny, manslaughter, mayhem, murder, rape, robbery, sodomy, or suicide. Even though there is still automatic disenfranchisement for those eleven crimes, the court concluded that the number of crimes for which Virginians are disenfranchised has decreased from 181 statutory crimes and 103 potential disenfranchisement crimes. Over 200,000 Virginians are estimated to not be able to vote because of the automatic disqualifications.
The court found that Virginia was partially following the injunction, but is giving it leeway in implementing the election processes, which are under the Commonwealth’s purview. Attorney General Jay Jones, as well as election law commissioners, had to extend the deadline twice in order to comply with court orders. The plaintiffs in the case asked the Commonwealth to revise the voting registration form, fix its websites, correct its list of disqualifying felonies, issue instructions to registrars, prevent misinformation, provide affirmative notice to potential class members, and take any other steps to comply with court orders. The Commonwealth responded that the voting websites no longer showed incorrect information, and the online form does not automatically stop felons from registering. The list of disenfranchised individuals, formerly 300,000, has been updated, but the Commonwealth has still not, as of the date of publication, updated registration forms asking voters if they were convicted of a common-law felony. The Commonwealth is still allowed to disenfranchise people under O’Bannon v. King, but if the amendment passes, then no one convicted of any crime may have their right to vote abridged once they complete their sentence.