Old Law Coming Back to Bite Virginia?

Voting booths in Portsmouth. Photo credit: Virginian-Pilot

by Dick Hall-Sizemore

On behalf of three Virginia residents, the Virginia ACLU, along with a large D.C. law firm, has filed suit in federal court challenging the provision of Virginia’s constitution that disenfranchises anyone convicted of a felony, providing that their voting rights can be restored only by the governor.

Such a legal challenge is not necessarily new, but the basis for this one is novel and fascinating The plaintiffs claim that the provision of the Virginia constitution is illegal because it violates the provisions of the federal law that allowed for the Commonwealth’s readmission to the Union after the Civil War.  That law included this provision, similar to that included for laws applicable to other member states of the Confederacy:

That the State of Virginia is admitted to representation in Congress as one of the States of the Union upon the following fundamental conditions: First, that the Constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote by the Constitution herein recognized, except as a punishment for such crimes as are now felonies at common law, whereof they shall have been duly convicted under laws equally applicable to all the inhabitants of said State.  [Emphasis added.]

The filing explains that this condition was included in the Readmissions Acts because Congress “recogniz[ed] that former Confederate states were manipulating their criminal laws with the specific intent to disenfranchise Black citizens.” The plaintiffs contend that, in 1870, “’common law’ felonies were widely understood to be a distinct category of crime from ‘statutory’ felonies.”  Furthermore, “common law” felonies were “murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny.”

Two of the plaintiffs were convicted of possession and distribution of controlled substances.  In 1870, this was not a common law felony. As the filing points out, possession of controlled substances was not made a statutory crime until the early 1900s. The situation for the third plaintiff is a little ambiguous. The filing says only that he was convicted of “uttering.” In Virginia law, that could mean forgery (18.2-172) or passing bad checks (18.2-181). The filing is unclear about which specific offense the plaintiff was convicted. The Virginia Code declares the latter offense larceny, which was a common law felony in 1870. Forgery was not considered such an offense then.

Finally, the plaintiffs contend, “The Virginia Readmission Act remains good law.  It has never been repealed or otherwise dismantled. Virginia accordingly remains subject to all of its provisions.”

As a final note, the plaintiffs were not content with just challenging the legitimacy of the Virginia constitutional provision. They took a swipe at the Youngkin administration, to boot:

The dire impact of Virginia’s sweeping disenfranchisement provision has been exacerbated by Governor Glenn Youngkin’s recent actions. While Virginia’s prior three governors restored voting rights to disenfranchised citizens with felony convictions based on specific criteria, Governor Youngkin has ended his predecessors’ restoration programs and restructured an opaque and arbitrary rights restoration policy without any objective criteria or set timeframe for rendering restoration decisions.

The suit was filed on June 26; therefore, there has not been time for the Commonwealth to respond.

From a legal and historian’s perspective, this should be a fascinating case to follow. It was filed in the Richmond Division of the federal district court’s Eastern District of Virginia. That will make it convenient for some of us to sit in on the oral arguments.

Note: This story was first reported in The Washington Post.