Today,
as we celebrate “Presidents’ Day,” we must talk of justice. Justice in our
schools, justice on our streets, justice in our jails and prisons, and, yes,
justice at the ballot box.
And,
we must begin any talk of justice at the ballot box by recognizing the
injustice of Virginia’s history of overt, substantial and violent
discrimination against Black voters, as a group and individually, and the
efforts to govern access to the ballot box by people determined to prevent
civic participation by Black Virginians.
Virginia
has a long and sad history of using every means available to deny its minority
citizens the right to participate in the political process and to vote. Following the Civil War, for three decades
Virginia’s constitution provided for universal suffrage for men, and Virginia
sent an African American to Congress in the last decade of the 19th
Century. At the turn of the century,
however, Virginia joined other southern states in a concerted effort to
disenfranchise Black voters.
Those
leading the rewrite of our constitution at the turn of the century said
explicitly that their “paramount concern” was the disenfranchisement of African
American voters. A subcommittee studying repeal of some of poll tax in the
forties said:
When the 1901 Convention decided on the present
voting qualifications, the reason which seems to have prevailed with a majority
of members was the belief that [Black people] had to be excluded from suffrage.[1]
In
accordance with this belief, the 1902 Constitution conditioned voter
registration on the payment of a poll tax, the unaided completion of a written
application, and the ability to answer questions regarding an individual’s
“qualifications” as an elector. [2]
Enabling law gave registrars unfettered discretion in judging whether an
individual was qualified to vote, and some registrars frankly admitted that
they acted “on general principle never to register [a Black person] or a
Republican.”[3] “In Virginia, the effect of the
constitutional provisions was to reduce the Black electorate from 147,000 to
21,000.”[4]
This same opposition to Black voter participation was also cited by the subcommittee as a reason for Virginia’s vote against ratifying the women’s suffrage amendment which our legislation didn’t vote to “ratify” until 1953, long after it had taken effect.
Despite
Martin Luther King’s entreaties in 1957 to “give us the ballot”, the poll tax remained in
Virginia until abolished in federal elections by the Twenty-Fourth Amendment to
the federal Constitution and invalidated in state elections by passage of the
Voting Rights Act of 1965 (over the vigorous opposition of Virginia
representatives, including then chair of the House Rules Committee, Howard W.
Smith, “who called it an ‘unconstitutional’ vendetta against the former
Confederate states”).[5]
Unfortunately,
passage of the Voting Rights Act did not end formal efforts to suppress Black political
influence in Virginia. Our legislature has tried residency certificates,
multi-member districts, and various districting plans, up to and including the 2010
Congressional plan declared unconstitutional, that “cracked,” “stacked” and “packed” Black voters to reduce their growing political strength. An issue today is whether the Virginia House
should run in the new Census informed districts just approved in 2022 and,
then, again, in 2023 as happened after the 1980 Census and redistricting cycle.
Felony disenfranchisement laws, codified post-Reconstruction, which explicitly
targeted African-American to diminish their electoral strength lingered while
these other efforts to suppress the Black vote were swept aside in legal
challenges.[6] The felony disenfranchisement provision is
entrenched in Jim Crow era racially discriminatory laws and policies.[7] Like poll taxes, literacy tests, grandfather
clauses, all-white primaries, felony disfranchisement laws were intentionally
manipulated during Reconstruction to exclude African-Americans from the
political process in Virginia and their impact continues to this day.
According
to a Brennan Center Report on Racism and Felony Disenfranchisement, “before the
Civil War, most states already had some form of disenfranchisement on the
books, but these new laws were significantly broader, imposing
disenfranchisement as a consequence for all felonies, rather than only a
few select crimes. In rapid succession between 1865 and 1880, at least 13
states — more than a third of the country’s 38 states — enacted broad felony
disenfranchisement laws. Once these broad disenfranchisement laws were on the
books, racist politicians could also enforce them in a deliberately
discriminatory manner.” [8]
For
example, in 1876 Virginia broadened its felony disenfranchisement law to
encompass petty theft, or “petit larceny,” a crime of which white politicians
believed Black citizens could be easily convicted. The next year, the
legislature passed a law requiring that lists of voters convicted of any of the
new, broader array of disenfranchising crimes be delivered to county
registrars. Applied “almost exclusively to the detriment of African American
voters,” the law facilitated racist politicians’ attempts to selectively enforce
disenfranchisement. “We publish elsewhere a list of negroes convicted of petit
larceny,” a Richmond-based newspaper advertised several years later, advising
that “Democratic challengers should examine it carefully.”[9]
Virginia
remains one of the worst states in the nation for felony disenfranchisement. Only Virginia and one other state permanently disenfranchise a person convicted of a felony unless an individual governor chooses to restore their right to vote.
In its 2020 Locked Out report, The Sentencing Project reported that the disenfranchisement rate for all Virginians is 6% percent, as more than 366,000 people cannot vote. 52% of those people are estimated to be African Americans. The result is that today, nearly 16% percent of African-Americans in Virginia are permanently banned from voting unless an individual Governor chooses to reenfranchise them. The increased racialization and felonization of the criminal legal system and the longer sentences resulting from the 85% mandatory minimum in the 1995 “no parole” law, have increased the adverse impact of felony disenfranchisement on Black Virginians.
The
last two Virginia governors have restored the rights of more than 200,000 persons.
Nonetheless,
there is a disturbing reality attendant to the increase in mass incarceration and
longer sentences after enactment of the “no parole” law in 1995. These
developments have had a disproportionate impact on people of color. Given the
increasing numbers of people convicted of felonies and the racism inherent in
the criminal legal system, it is now clear that we will not truly purge the
intentional racism of the felon disenfranchisement provision in our
constitution until we amend the constitution to delete it.
Data released by then Governor McAuliffe in 2016 show that, because of the racially defined consequences of mass incarceration and the longer sentences being served by the more recently convicted, the majority of the people whose rights he restored were white (51.5%), while a majority of those continuing to be disenfranchised are Black (52%). So, because of age, the date of conviction, and the length of time since a person’s sentence was completed, the more aggressive a governor is in addressing the voting rights of those currently disenfranchised the larger the percentage of those remaining disenfranchised will be African American.
So, what’s the solution? There is only one -- amending our Virginia Constitution to remove a lingering vestige of the Jim Crow era and bring true universal suffrage to all Virginians.
That’s why Senator Mamie Locke introduced SJR1 which would remove the limits on voting from our Virginia constitution and guarantee the right to vote to every Virginian over 18, a right that cannot be abridged by law. It is the right thing to do, and it is now the right time to do it.
The amendment would suspend the right to vote while serving time in jail or prison on a felony conviction but would not require formal process to restore it.
It would also eliminate language that disenfranchises unfairly many people with autism and other intellectual and developmental disabilities.
SJR 1
passed last year and has passed the Senate this year. As of today, February 21, 2022, it is pending in the House of Delegates
(where an identical House measure has already been killed by six people in a
House subcommittee).
If
adopted by the House, SJR1 and its accompanying “ballot bill” that defines how
the resolution would be implemented would allow the question of amending our
constitution to be placed on the ballot in fall of 2022 for a vote by all
Virginians.
In
addition, as of today, February 21, 2022, there are a number of bills that passed the House and are now pending
in the Senate Privileges and Election Committee that would roll back measures passed in the last couple of years
that have expanded ballot access across the Commonwealth:
Reinstitute photo ID,
HB46 and HB 1090
Reduce in-person
absentee from 45 days, HB39 (14), HB46(21)
Stronger witness
requirements for absentee ballots, HB177
Eliminate permanent
absentee list, HB175, HB196
No drop off boxes for
absentee ballots, HB34, HB175
Repeal same day
registration (2022 effective), HB185
Reinstitute election
day deadline for absentee ballots, HB956
It is
time to give Virginians the right to approve the inclusion of a right to vote
in our Constitution. We must stop all efforts to repeal advances in making the
ballot box more accessible (as shown by the record turnout in the 2021 election
cycle).
Please
take action to support the constitutional amendment and to defeat bills that
would roll back progress.
Reach out to organizations you are involved with to ask them to help protect the fundamental right to vote … the essential ticket in our democracy.
Some
organizations might be hesitant, but even charities are allowed to advocate for
public policy change.
The right to vote belongs to the people. Voting is the only “just basis for self-government.”[10] Voting is how we decide who governs us.
When the government denies the right to vote to anyone, it tells them
they are lesser Americans. When people are told that they are less than full
citizens, it hinders rehabilitation. If we want to rehabilitate people
convicted of crimes, most of whom will return to their communities to be safe
and productive citizens, we should encourage civic participation while
incarcerated and after release. A key component of a prisoner’s rehabilitation
in becoming a productive citizen is casting a ballot, the most basic building
block in democratic society.
Voting in America is an “entitlement” not a privilege.[11] The right to vote is
fundamental to our democracy, and it must be treated as irrevocable. It is not
a privilege like obtaining a driver’s license. The right to vote ought to be
treated in the same respect as other fundamental rights in our democracy, such
as freedom of religion or speech. As Professor Joshua Douglas said in writing
in a Cornell Journal, the act of voting is “perhaps the most politically
expressive activity” that any one individual can do in our democracy to have
their voice heard to who best represents them in government.[12]
Voting is not a disposable tool for elected officials to use to decide
who gets to choose them. The right to
vote should not be used at the whim of the government to reward or punish its
people. The ballot box should be open and accessible, not guarded as a sacred
space only open to some.
We must demand our right to vote on the constitutional amendment that
would guarantee this fundamental right for all and oppose forcefully all
efforts to return Virginia to a commonwealth that deprives people cavalierly of
this most basic right.
[1] “Report of the Subcommittee for a Study of
Constitutional Provisions Concerning Voting in Virginia,” The Poll Tax in
Virginia Suffrage History: A Premature
Proposal for Reform (1941) (Institute of Government, University of Virginia
1969) at 23.
[2]
Id.
[3]
Id. at 27
[4] Lawson at 14-15 citing, Virginia Writer’s
Project, The Negro in Virginia (Arno Press, 1969) at 240.
[5] Davidson, “The Voting Rights Act: A Brief
History, Controversies in Minority Voting:
The Voting Rights Act in Perspective (Grofman and Davidson, Eds., The
Brookings Institution, 1992) at 18. See
also, Lawson at 288-328 (describing legislative consideration of the Voting
Rights Act including the active opposition by Virginia representatives to the
provisions banning poll taxes).
[7] Dale Ho, Virginia Needs to Fix Its Racist Voting Law,
N.Y. Times (July 19, 2016)), available at: https://www.nytimes.com/2016/07/19/opinion/virginia-needs-to-fix-its-racist-voting-law.html
Brent
Staples, The Racist Origins of Felon
Disenfranchisement, N.Y. Times (Nov. 18, 2014), available at: https://www.nytimes.com/2014/11/19/opinion/the-racist-origins-of-felon-disenfranchisement.html?_r=0
[8] Kelly, Erin, Racism & Felony
Disenfranchisement: An Intertwined History, Brennan Center for Justice, at 2
n.22 and 23. Available at https://www.brennancenter.org/publication/racism-felony-disenfranchisement-intertwined-history
[11]
http://theusconstitution.org/text-history/1844/shelby-county-post-argument-commentary-voting-rights-are-american-entitlement
[12] Douglas, Joshua A., Is
the Right to Vote Really Fundamental? Cornell J. Law & Policy, Vol. 18, 143
(2008).
