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Restoring Voting Rights to Former Felony Offenders

Virginia Governor Terry McAuliffe takes a historic step, giving the vote back to those previously banned from participation.

ASSOCIATED PRESS/Steve Helber

Virginia Governor Terry McAuliffe took the historic step of signing an “executive action Friday that lifts a lifetime voting ban for people who have been convicted of felony offenses in the past. The blanket voting-rights restoration will allow more than 200,000 people in the state to become eligible to vote for this year’s elections. For many years, the issue of whether the governor could legally make such a sweeping move was not a settled legal matter, given that the felony voting ban is codified in the state’s constitution. However, McAuliffe said that he consulted with his Attorney General, Mark Herring, and University of Virginia constitutional law expert A. E. Dick Howard, who assured the governor that he had such legal authority.

The Richmond Times-Dispatch obtained a draft of the research paper that McAuliffe used to make this decision, which found that, “Under the Constitution of Virginia, the governor has the authority to 'remove political disabilities consequent upon conviction' for felonies.”

This is the outcome of decades of organizing by groups like the Virginia State Chapter of the NAACP, the New Virginia Majority, and The Sentencing Project to dismantle the law. Said Tram Nguyen, co-executive director of the New Virginia Majority, in a press release:

The disenfranchisement of people who have served their sentences was an outdated, discriminatory vestige of our nation’s Jim Crow past. [Friday’s] news is welcomed progress for grassroots advocates who have worked alongside these Virginians for years to advocate for their full inclusion in our democracy. We celebrate today knowing the countless benefits of restoring the right to vote—including reduced recidivism rates and the fulfillment of our democratic values.

“Disenfranchisement policies are fundamentally at odds both with democracy and with the need to support individuals in their reentry from prison,” said Marc Mauer, executive director of The Sentencing Project, in a press statement. His D.C.-based organization has been working to dismantle felony disenfranchisement laws across the country.  

Prior to this, Virginia was joined by only three other states—Florida, Iowa, and Kentucky—in placing lifetime voting bans on people with felony convictions. In these states, a person who’s served their prison sentence for a felony can only regain their voting rights through petitioning directly to the governor or pardons board. Kentucky saw some progress in 2015 when former Governor Steve Beshear lifted the voting ban for close to 100,000 people with past nonviolent felony convictions. But the state’s new governor, Matt Bevin, reversed that immediately upon taking office this year.

The Sentencing Project estimates that close to 6 million people currently can’t vote across the U.S. due to these laws. Roughly one out of every 13 African Americans can’t vote due to felony-based voting restrictions. In Virginia, one out of five African Americans couldn’t vote due to past felony convictions—and that may have been by design.

As the New York Law School professor Erika Wood wrote for The New York Times back in 2011, Virginia’s felony voting ban was born out of the state’s 1901-1902 constitutional convention, where state legislators were transparent about their opposition to allowing black people to vote. Back then, Virginia state Senator Carter Glass said at the convention of the proposed law:

This plan … will eliminate the darkey as a political factor in this state in less than five years, so that in no single county … will there be the least concern felt for the supremacy of the white race in the affairs of government.

A few of Virginia’s former governors slowly chipped away at the law over the past few years. When Bob McDonnell became governor in 2010, he began streamlining the process that allowed former felony offenders to apply for voting rights restoration. In 2012, there were roughly 350,000 people prevented from voting in Virginia due to felony convictions, 242,000 of whom were African Americans. The restoration process could take months, if not years, for some people. But McDonnell put a 60-day time limit on it, and then instituted an automatic restoration for former nonviolent felony offenders in 2013—though on a case-by-case basis.

When McAuliffe became governor in 2014, he accelerated the restoration process for those with prior nonviolent felony convictions, particularly those with felony drug convictions. Friday’s action by McAuliffe goes even further by automatically restoring the right to vote for people with both past nonviolent and violent felony convictions.

“This restoration is just the first step toward access to the ballot, but not the final step,” said McAuliffe during a signing ceremony on the front steps of the state capitol building Friday. “These men and women must now register to vote, and once they have done that, they must actually show up and vote on election day. I do believe that most of them will do so.”

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