By: Sarah Fisher

Earlier this year, the Virginia General Assembly took a significant initial step toward ensuring that Virginians with felony conviction histories have their voting rights restored upon release from incarceration.

Currently, under the Constitution of Virginia, Virginians with prior felony convictions are permanently disenfranchised and may only have their civil rights restored at the discretion of the Governor upon full completion of their sentences. This policy has historically been interpreted as requiring the payment of all court costs and fees, as well as  the successful completion of applicable probation or parole periods. State policy also required would-be voters to affirmatively request restoration of their rights via an application to the Governor and Secretary of the Commonwealth. While Virginia’s gubernatorial administrations now work proactively to restore voting rights to all who are eligible (therefore eliminating the application stage), new voters are often unaware their voting rights have been revived.

Such barriers uniquely impact Black would-be voters nationwide: over six percent of voting age Black Americans are disenfranchised due to felony convictions, a figure that is nearly four times greater than the percentage of disenfranchised non-Black Americans. While previous governors of Virginia have taken executive action to restore voting rights to broader classes of disenfranchised Virginians (for example, by eliminating policies that excluded certain crimes from the potential restoration process), the General Assembly has been slow to respond…until now. At the close of the 2020-2021 legislative session in February 2021, both the Virginia House of Delegates and the Senate of Virginia introduced resolutions that would amend the Constitution of Virginia and permanently transform the voting rights restoration process for Virginians with past felony convictions.

The identical resolutions propose an amendment to Article II, Section 1 of the state constitution to (1) establish voting as a fundamental right and (2) eliminate the governor-based voting rights restoration process entirely. Under the proposal, Virginians with felony conviction records would be re-enfranchised immediately and automatically upon release from incarceration. Virginians covered by the amendment would also have other “political rights” revived, including the right to serve on a jury, become a notary public, and run for elected office.

Both chambers of the Virginia General Assembly approved the proposed amendment on February 27, 2021. Because of Virginia’s rather quirky state constitutional amendment procedures, however, the amendment must be reintroduced in the upcoming legislative session and passed a second time in both houses of the newly-seated General Assembly. Assuming Virginia’s future legislators do indeed re-approve the measure in the next legislative session, scheduled to begin on January 12, 2022, the Commonwealth’s voters will be presented with the amendment for final ratification and adoption in a statewide referendum.

Recognizing the lengthy process for approving a state constitutional amendment and the difficulties faced by Virginians left in voting rights limbo during an election year, Governor Ralph Northam exercised his constitutional powers on March 16, 2021, in line with the proposed amendment’s criteria to restore voting rights automatically to over 69,000 Virginians who had completed their sentences of incarceration. Governor Northam’s automatic restoration action was accompanied by an announcement that moving forward, Virginians released from incarceration would be qualified to have their civil rights restored regardless of probation, parole, or community supervision status. Northam has stated that he intends to periodically repeat this action, offering an opportunity for Virginians with prior felony convictions to have their voting rights automatically revived while the constitutional amendment process moves slowly forward.

Simply put, Governor Northam’s new policy means Virginians with felony conviction histories no longer have to wait to complete parole or probation periods to have their voting rights automatically restored. When combined with the General Assembly’s initial approval of a constitutional amendment that would permanently automatize the voting rights restoration process post-incarceration, these developments represent a small but significant step toward enfranchisement for the hundreds of thousands of Virginians who have served sentences for felony convictions. While additional hurdles remain—for automatic voting rights revival would not include automatic voter registration—Virginia seems poised to transform its electorate and re-extend fundamental civil rights to voters who have otherwise been permanently disenfranchised since the nineteenth century.

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