The Supreme Court Could Take Another Shot at Voting Rights

After Reconstruction ended in the late 1870s, however, Redeemer governments in Virginia sought to roll back the state’s expansive franchise. Those efforts culminated in the state’s 1902 Constitutional Convention, which suppressed Black voting power in Virginia by enacting the usual menu of Jim Crow tactics, including poll taxes, literacy tests, and grandfather clauses. It also added provisions to deny the vote to anyone convicted of certain non-felony crimes like “petit larceny” and “obtaining money or property under false pretenses” that could be arbitrarily applied to Black Virginians.

Most of those barriers were dismantled by the Supreme Court’s civil rights rulings and federal voting rights laws in the 1950s and 1960s. The felon-disenfranchisement provision reached its current form when Virginia rewrote its constitution for the most recent time in 1971: “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the governor or other appropriate authority.” Its breadth and the wholly discretionary nature of its relief are unmatched by any other state.

In their 2023 lawsuit, a group of Virginians and voting rights organizations argued that the 1971 language violated the Virginia Readmission Act of 1870. They claim that the federal law only allows Virginia to disenfranchise for felonies that would have existed at the time. “In 1870, ‘common law’ felonies were widely understood to be a distinct category of crime from ‘statutory’ felonies,” the complaint explained. “The nine ‘common law’ felonies were murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny.”