It’s Not All Bad: Felony Disenfranchisement and Preclearance Aftermath in Virginia

by Student Contributor

On June 25, 2013, the levee finally broke. After earlier hinting that it would, the Supreme Court of the United States struck down the formula for determining which jurisdictions required preclearance under the Voting Rights Act.

Predictably, pandemonium ensued. Some commentators forecasted that states would revert to practices that result in further restrictions on who can vote. An example in Virginia is a new voter ID law that will now go forward unchecked by the Department of Justice thanks to the Court’s decision in Shelby declaring the VRA preclearance formula unconstitutional.

However, even preclearance did not prevent voting laws that have a lopsided effect on minority voting. In particular, Virginia’s felony disenfranchisement law comes to mind. Currently, more than 450,000 Virginians are denied the vote because of criminal convictions. More to the point, one in five black Virginians are disenfranchised because of their felon status. This disenfranchisement is for life or until restored by Virginia’s Governor.

At least one individual has sought to challenge the law through the courts. In 2012, former Richmond City council member Sa’ad El-Amin filed a suit to overturn Virginia’s felon disenfranchisement law. Mr. El-Amin’s complaint argues that the law violated the Equal Protection Clause. Two William & Mary Law students working under Professor Rebecca Green filed an amicus brief in the case.  Section 2 of the 14th Amendment to the Constitution appears to condone discrimination against felons. In Richardson v. Ramirez the United States Supreme Court noted that Section 2 of the 14th Amendment exempts felony disenfranchisement “from the lesser sanction of reduced representation.” As a result, the Court reasoned, Section 1 could not have been intended to outright bar felony disenfranchisement. However, the Court left open the possibility of striking felony disenfranchisement in cases in which states passed felon disenfranchisement laws in the context of intentional discrimination.

In his complaint, El-Amin alleged that Virginia’s anti-discrimination law has its roots in post-Civil War efforts to suppress the black vote. El-Amin points to the disenfranchisement of felons but not civil war traitors as evidence of animus against African Americans. Other evidence exists in Virginia’s history to support Mr. El-Amin’s claim. For example, at Virginia’s 1901 Constitutional convention Delegate Carter Glass boasted that felony disenfranchisement would “eliminate the darkey as a political factor in this state in less than five years.” The problem for Mr. El-Amin is that at the time Virginia adopted its felon disenfranchisement law, African Americans could not vote, meaning the law could not have been intentionally discriminatory against them, even if later the law served that purpose.

There have also been attempts to ease the burden on felons through the political process. Arguably, these efforts have been more successful. Judge John A. Gibney stayed Mr. El-Amin’s case after Governor Bob McDonnell announced he would streamline the process for restoring the voting rights of non-violent felons. Until Mr. McDonnell issued an executive order on July 15, 2013, non-violent felons had to wait two years before they could request the franchise back. An estimate of 100,000 felons became eligible for automatic restoration as a result of McDonnell’s executive order.

True, Virginia’s House of Delegates on a recent occasion rejected changes that would make it easier for felons to get their rights back. However, views in the future might be different. Both the Democratic and Republican gubernatorial candidates were supportive of McDonnell’s program. Republican nominee Ken Cuccinelli initially opposed a change in the law, but changed his position based on the report of a committee he chaired. Democratic candidate Terry McAuliffe has also applauded the proposal. For those in favor of the streamlined procedure, the support of both candidates is welcome news. After all, should one of these candidates be the victor, he will have the option to rescind the order.

McDonnell’s effort to restore the voting rights of non-violent felons has not proceeded without hitches. By September 18, 2013 only 800 applications had been reviewed. The problem is that the administration has no complete list of individuals who are eligible for having their rights restored. Without such a list, the administration is reliant on eligible individuals to learn about the program and come forward themselves.

Currently, organizations like the Virginia Organizing Project are doing what they can to get word to those eligible for automatic restoration. The Advancement Project has put together a guide to help felons get their rights back. More than 3,000 copies of the guide were shipped during the week of September 5, 2013 alone. The guide includes the form that the individual needs to file with the Secretary of the Commonwealth to “automatically” have his voting rights restored. The Virginia Department of Corrections also began working in May to identify individuals scheduled for release that will be eligible for rights restoration.

Interestingly, Virginia’s Republican Governor does not appear to be doing his party any favors with this move. At least one commentator has postulated that re-enfranchising felons could put Virginia permanently out of the reach of Republicans. After all, Bush only won Virginia by less than 300,000 votes in each election and the data indicates that re-enfranchising felons will help Democrats.  The implication is interesting for those that fear that Virginia will change its election practices to compensate. McDonnell’s decision to streamline the process challenges the notion that Virginia will rush to re-engage in minority-voter suppression in the absence of Justice Department oversight. Perhaps the decision to streamline the rights-restoration process is a recognition of the fact that minority votes will be increasingly important for both parties in the future. In any case, that this success has occurred through the political process suggests that Federal courts may not be necessary to ensuring minority access to the ballot.

With the recent redistricting fiasco and the new voter ID laws, it is far from clear that Virginia will be able to keep its nose clean in the absence of the preclearance requirement. Nonetheless, efforts to restore the vote to felons allow for hope that Virginia will strive to make a bipartisan effort ensure equal access to the ballot for all.

Permalink: http://electls.blogs.wm.edu/2013/11/25/9832/

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