Former Richmond City Council member Sa’ad El-Amin could be back in the voting booth for this year’s Governor’s race. The irony is that this could frustrate his own efforts to ensure automatic rights restoration for felons in Virginia.
Federal District Judge John A. Gibney Jr. ordered a stay in the case of El-Amin v. Commonwealth of Virginia, holding off on deciding whether the convicted felon would have his voting rights restored, because of Governor Bob McDonnell’s announcement that he intends to restore voting rights to all non-violent felons in the state. (Full Disclosure: Two William & Mary Law School students, Kate Ward and Elderidge Nichols, under the supervision of Professor Rebecca Green, filed an amicus curiae brief in El-Amin’s case.)
Even though Attorney General Ken Cuccinelli’s task force found that the Governor could not legally automatically restore voting rights to the thousands of non-violent felons in Virginia, Governor McDonnell forged ahead earlier this month with a plan to do just that. He is currently developing a plan to reach out to every non-violent offender he can locate within the state to inform them that their rights have been restored. Before this, non-violent felons had to wait two years after their sentence ended before beginning an application process that could allow them to regain their voting rights in as little as 60 days. Violent offenders will still have to wait 5 years before they are eligible to apply for restoration.
El-Amin was found guilty of tax crimes in 2003, and served 3 years in prison. He has never applied for restoration of his own rights, instead undertaking a constitutional challenge to the disenfranchisement law. He makes a legal and factual argument that the law as it stands is an offshoot of early Black Codes rooted in Virginia’s history of racial discrimination. El-Amin argues that there is at least one Virginia State Senator who stated at the time the measure was drafted in 1904 that its purpose was to “eliminate the darkey as a political factor in this state.”
The irony is that, with his right to vote and run for office restored by Governor McDonnell, El-Amin’s case could become moot. The Governor, by streamlining the application process as a whole and introducing this measure through his office, may also stop El-Amin’s attempts to render Virignia’s disenfranchisement of felons unconstitutional.
Governor McDonnell has done more to return voting rights to felons than most other gubernatorial administrations, but by restoring El-Amin’s, he may have undermined El-Amin’s mission. It appears likely that El-Amin will get to cast a vote for McDonnell’s successor later this year, he could be out of luck in toppling the whole practice of disenfranchising felons who have completed their sentences in Virginia.