By Graham Moomaw
VM – The last three Virginia governors — a Republican and two Democrats — have made it much easier for people convicted of felonies to have their voting rights restored by the governor’s office.
If some lawmakers get their way, felons rejoining society will no longer have to rely on the benevolence of future governors to be able to vote again.
Instead, they’d get their rights back automatically after serving their time. Or, if policymakers choose to add Virginia to the handful of states that allow inmates to vote while incarcerated, they’d never lose the right to begin with.
Several high-profile Democrats, including Gov. Ralph Northam, are lining up behind the idea of a constitutional amendment to scrap Virginia’s lifetime disenfranchisement policy for people with felonies, which many see as a racist relic of a Jim Crow-era system built to suppress the Black vote.
In most states, felons automatically regain their civil rights after they’ve completed their sentence or post-release supervision. Under Virginia’s disenfranchisement policy, felons can’t regain their rights without action by the governor. People with felonies previously had to ask governors for permission to be able to vote again, but the process has been loosened over the past decade to be as automatic as legally possible under the policy laid out in the Constitution.
With the 2021 General Assembly session set to begin Wednesday, Northam has said a proposal for automatic rights restoration is a top priority for his administration.
“Governor Northam is proposing a constitutional amendment that would allow any individual — upon completion of their sentence of imprisonment or active supervision — to automatically have their political rights restored, including the right to vote,” Northam spokeswoman Alena Yarmosky said in an email.
Former Gov. Terry McAuliffe, who made streamlining rights restoration a major goal of his first term, issued a news release Monday calling for the passage of a rights restoration amendment, saying he’d “work tirelessly” to make sure it passes again in 2022 if he’s elected to a second term later this year.
“There is no more fundamental right than the ability to participate in our democratic process, and restoring voting rights to 173,000 Virginians is one of the proudest accomplishments of my life,” McAuliffe said in a release from his gubernatorial campaign.
For a constitutional amendment to be approved in Virginia, the General Assembly has to pass it twice, with elections in between the two votes. Then it needs approval from voters in a statewide ballot referendum.
McAuliffe’s release also noted that Virginia House Majority Leader Charniele Herring, D-Alexandria, will be sponsoring an amendment in the House. Herring, a co-chair of McAuliffe’s campaign, said in the release it’s “time to go big and be bold to ensure equity in voting rights for all Virginians.”
Others believe the truly bold option is to move away from the idea of restoration altogether and treat voting as an untouchable right, not one the state is empowered to give or take away.
In an interview, Del. Jay Jones, D-Norfolk, said he’s planning to introduce an amendment that will change the Constitution to reflect that any Virginian over 18 has the right to vote “and that shall not be deprived.”
“For far too long we’ve hidden behind these provisions to deny people the right to vote,” said Jones, who is seeking the Democratic nomination for attorney general. “We need to move into the 21st century on a whole host of things.”
Only the District of Columbia, Maine and Vermont have policies allowing felons to vote while incarcerated, according to the National Conference of State Legislatures.
Sen. Mamie Locke, D-Hampton, has already filed a version of the more sweeping proposal in the Senate.
Her resolution would eliminate language in the Virginia Constitution saying anyone convicted of a felony or declared mentally incompetent loses the right to vote until the governor or some other authority sees fit to restore it. Locke’s proposal adds a line saying any Virginian who is at least 18 and registered to vote “shall have the fundamental right to vote in the commonwealth, and such right shall not be abridged by law.”
Locke’s office refused a request for an interview about her proposal.
The issue will present Democrats with another test of how far they’re willing to push after winning control of the Executive Mansion and the General assembly for the first time in decades. Democrats flipped the legislature in 2019, but will have to play defense in November’s elections with all 100 House seats up for grabs.
Republicans have expressed some openness to the idea of a less strident approach to felon disenfranchisement. Former Gov. Bob McDonnell boosted rights restorations during his term, completing more than 8,000 with a focus largely on non-violent offenders.
When McAuliffe took executive action to restore voting rights to more than 200,000 people with felonies in 2016, Republicans said he had taken an overly broad approach that gave little attention to the particular crime committed, treating violent and non-violent offenders the same.
After Republican General Assembly leaders sued McAuliffe over the move, the Supreme Court of Virginia partly agreed, ruling that McAuliffe could not restore rights en masse with no review of each individual case. Republicans have also argued ex-offenders should have to pay all fines and fees before having their rights restored, an idea many Democrats say creates more unnecessary barriers to voting.
Despite the court setback, McAuliffe was still able to keep up a swift pace of restorations, a policy that has continued during Northam’s administration.
Northam has completed roughly 40,000 rights restorations so far, according to Secretary of the Commonwealth Kelly Thomasson, whose office oversees the process.
The amendment being backed by the governor, Yarmosky said, would essentially codify the way things have been done under the Northam and McAuliffe administrations.
“The criteria set forth in this amendment are the same criteria for restoration of rights that have been used by Virginia governors for the past six-plus years,” said Yarmosky, Northam’s spokeswoman. “While the current restoration process is at the governor’s discretion and takes anywhere from one to three months, this amendment will ensure that anyone convicted of a felony in Virginia will always have an avenue for having their rights restored — regardless of who is in the governor’s office.”
McAuliffe supports the same proposal backed by Northam, according to his campaign.
The ACLU of Virginia and other left-leaning groups that work to protect and expand voting rights are planning to push for something more.
“If we really wanted to end the disenfranchisement of hundreds of thousands of Virginians who happen to be Black or brown, the only way to do that is to give them a right to vote that the government can’t take away,” said ACLU of Virginia Executive Director Claire Guthrie Gastañaga.
In 2018, nearly 65 percent of Florida voters approved a ballot referendum to move to an automatic rights restoration system that excluded murderers and sex offenders. Last year, a federal appeals court ruled that felons are ineligible to vote until they’ve paid fines and fees, four months after a lower judge had struck down that requirement as an unconstitutional “pay-to-vote system.”
The best way for Virginia to avoid a similar “falling back” scenario, Gastañaga said, is to pass a clear and simple policy. She said she thinks there’s strong support for a proposal like Locke’s that would allow inmate voting, but some legislators “are not convinced yet.”
“Do I think there may be some people whose backbones are a little weak on this subject in the General Assembly? Absolutely,” Gastañaga said. “But I’m hoping we can get them to stiffen up their backbones.”
