Equal Protection Challenge to Virginia’s Felony Disenfranchisement Provision Survives Summary Judgment

The US District Court for the Eastern District of Virginia on Friday granted the State’s summary judgment motion on substantive and procedural due process challenges to Virginia’s voter reinstatement process for convicted felons, as well as an Eight Amendment challenge to the disenfranchisement of felons as cruel and unusual punishment. The court did, however, deny summary judgment on El-Amin’s Equal Protection challenge of lifetime felon disenfranchisement in Virginia.

Plaintiff Sa’ad El-Amin argues that Virginia’s felony disenfranchisement laws were enacted to discriminate against black citizens. Thus, despite the facially neutral language of Art. II, § 1 of the Virginia Constitution, El-Amin contends that the alleged discriminatory intent makes Virginia voter qualifications constitutionally deficient under the 14th Amendment.

The court’s opinion notes that previous challenges to felony disenfranchisement have not fared well in court; however, none of those cases entailed an inquiry into the specific historical events El-Amin argues support a discriminatory intent behind the laws. According to the court, while felony disenfranchisement is not constitutionally prohibited in the abstract, there is Supreme Court precedent for striking down specific States’ felony disenfranchisement provisions based upon discriminatory motivation for their adoption. El-Amin will have to prove that racial animus tainted the passage of felon disenfranchisement in Virginia—an uphill battle given that the laws were originally put on the books when only white men could vote in Virginia (i.e., could not have been targeted at denying blacks the vote). Still, Virginia’s troubled history of racial discrimination makes its felon disenfranchisement law—one of the most extreme in this country—a bitter legacy.

Two William & Mary Law students, Kate Ward ’13 and Elderidge Nichols ’13 wrote an amicus brief in the case.

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