To the Virginia General Assembly: Free the Franchise, End Felony Disenfranchisement

October 2, 2020

By Allen Coon

“No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.”

So decrees Article II, Section 1 of the Constitution of Virginia, which disenfranchises all Virginia residents convicted of any felony—including returning citizens with prior convictions—without petitioning the Governor. Since 2016, Virginians who have completed their sentence (including supervised probation and/or parole) can now request their rights be restored by contacting the Office of the Secretary of the Commonwealth.

Yet even this is too great an infringement on the fundamental right of the franchise.

The Commonwealth enacted its original ban on “any felony” voting only after other Southern states adopted felony disenfranchisement to protect institutional white supremacy and disenfranchise a newly-freed African-American population criminalized by Black Codes and Jim Crow. When Virginia amended its constitution in 1902 to include a total bar on voting by those with felony convictions, it was celebrated for securing “the complete supremacy of the white race in the affairs of government.”

While other Jim Crow relics (including poll taxes and literacy tests) were exorcised from Virginia law during the Civil Rights Movement of the 1960s, felony disenfranchisement continues to do what it was designed to do: suppress the electoral power of African-American voters. In 2016, of the approximately 508,680 Virginians disenfranchised by felony convictions, an estimated 271,944 (or 53% of all residents disenfranchised by the felony voting ban) were African-American. This means that as many as 22% of all African-Americans in the Commonwealth may not be legally cast a ballot come Election Day.

Ignore, if possible, the racist origins and racialized impacts of Virginia’s felony disenfranchisement policy. Ignore also its association with increasedrecidivism, or its potential to depress total minority voter participation, or its capacity to . Ignore even its incompatibility with public opinion, with a majority of voters supporting policies to restore the franchise for returning citizens. What policy interest is served by disenfranchising almost 8% of the Commonwealth’s population?

To form a more perfect Commonwealth, the General Assembly must abolish felony disenfranchisement. In December 2019, Senator Mamie Locke proposed S.J. 8, a constitutional amendment to free the franchise for all Virginians, including citizens still incarcerated and those on parole and/or probation (S.J. 8 also eliminates the constitutional qualification which disenfranchises “person[s] adjudicated to be mentally incompetent”). For the General Assembly to amend the Constitution of Virginia, a proposed amendment must be supported by consecutive legislative sessions as well as a majority of voters in a referendum. While support for the franchise of incarcerated citizens is still a minority opinion, alternatives to an absolute abolition of the felony voting ban exist. The General Assembly could support a constitutional amendment which limits disenfranchisement to those who commit specific violent crimes. Or, as former Governor Terence McAuliffe advocated, the legislature could preserve disenfranchisement for those still incarcerated but automatically restores the franchise to those who complete their sentence.

Whether its demise is immediate or incremental, felony disenfranchisement must end. The General Assembly must free the ballot box and free the Commonwealth.