The lawsuit claimed last summer that at least 300,000 Virginians don’t have voting rights after felony convictions.
RICHMOND, Va. (WRIC) – A federal judge has rejected an effort by Gov. Glenn Youngkin’s administration to throw out a lawsuit claiming Virginia is violating an 1870 law by automatically taking away people’s voting rights after any felony conviction.
The lawsuit, filed by the American Civil Liberties Union of Virginia and others on behalf of two Virginians and a nonprofit, claims the state’s policy to strip people’s voting rights after felony convictions breaks a Reconstruction-era law that allowed Virginia to be readmitted to Congress after the Civil War.
The federal law at the center of the suit — the Virginia Readmission Act of 1870 — aimed to ensure voting rights protections by banning changes to the state constitution that would strip people’s rights with exceptions for convictions of “crimes as are now felonies at common law.”
“Common law” felonies in 1870, the suit claims, were “murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny.” Virginia’s existing policy strips people’s voting rights for all felony convictions — an expansion that the suit claims violates the 1870 law — and only allows the governor to restore them.
Judge John Gibney of the U.S. Eastern District Court of Virginia sided with the state attorney general’s office on many of the suit’s legal arguments, dismissing most of them and the nonprofit from the case.
But he denied the state’s argument that the lawsuit should be tossed out because it presented “a political question,” allowing it to proceed on one claim after ruling the two Virginia residents could sue under a U.S. Supreme Court ruling that held government officials could be sued for trying to enforce an unconstitutional law.
Even with the judge throwing out three of the suit’s four claims, the ACLU of Virginia and others behind the case — the WilmerHale law firm and the nonprofit Protect Democracy — called the judge’s ruling “a significant step” in the effort to change the state’s disenfranchisement policy.
“For more than a century, Virginia has been openly defying federal law by illegally depriving its citizens of the fundamental right to vote,” Jared Davidson, counsel at Protect Democracy, said in a statement. “As a direct and intentional result, generations of Virginians, especially Black Virginians, have been denied the equal opportunity to cast their ballots.”
The two remaining plaintiffs are Virginia residents who lost their voting rights after felony convictions for drug offenses and other crimes. The lawsuit was filed against Youngkin, Secretary of the Commonwealth Kelly Gee and state and local election officials, including the entire state board of elections and Virginia’s elections commissioner.
Judge Gibney denied the state’s effort to get Youngkin and Gee removed from the case on immunity grounds. A spokesman for Youngkin referred 8News to Attorney General Jason Miyares’ office, whose spokeswoman said it doesn’t comment on pending litigation.
The legal challenge comes after Youngkin and his administration changed the voting rights restoration process to end practices that made it automatic for some felony convictions, a shift from changes implemented by Gov. Robert McDonnell (R) and other Virginia governors.
The lawsuit, filed last summer, claims an “estimated 312,540 Virginians are disenfranchised” and the state is the only one that doesn’t have an automatic restoration process.
There has been a disproportionate impact on Black Virginians, the lawsuit argues. The suit states that Black Virginians account for nearly half of those disenfranchised because of a felony conviction despite comprising less than 20% of the commonwealth’s voting-age population.
Unlike the other methods to suppress Black voters at the time, such as poll taxes and literacy tests, ACLU of Virginia attorney Vishal Agraharkar said felony disenfranchisement has remained and expanded in Virginia.
“If we were to win this lawsuit, that would go a significant amount of the way to eliminating felony disenfranchisement in Virginia,” Agraharkar told 8News when the suit was initially filed, “but it wouldn’t get us all the way there.”
The suit wants the court to stop Virginia from enforcing the disenfranchisement policy against people convicted of crimes that don’t fall under the “common law” felonies in 1870 and automatically restore their voting rights.
