Tuesday, February 22, 2022

Governing Access to the Ballot Box -- Presentation to Encore Learning, February 21, 2022


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).

 [6] Attorney General Eric Holder Delivers Remarks on Criminal Justice Reform at Georgetown University Law Center (Feb. 14, 2014), available at: https://www.justice.gov/opa/speech/attorney-general-eric-holder-delivers-remarkson-criminal-justice-reform-georgetown.

[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

 [9] According to the Richmond State and the Petersburg Index and Appeal, Virginia’s petty crimes provision [a law disenfranchising people for having committed various minor crimes], along with the poll tax, effected ‘almost … a political revolution’ in cutting down the Black vote. Kousser, “Undermining the First Reconstruction:  Lessons for the Second,” Controversies in Minority Voting:  The Voting Rights Act in Perspective (Grofman and Davidson, Eds., The Brookings Institution, 1992) at 35 n.31.

 [10] https://www.theatlantic.com/national/archive/2012/09/voting-right-or-privilege/262511/

[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).