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).

Choosing the People's Lawyer: Questions to Ask Candidates for Virginia Attorney General (Updated 2021 Election Cycle)

As folks debate the role of the Attorney General and the candidates in the 2021 election, I've updated a blog entry I first wrote before the 2005 elections regarding the role of the Attorney General and the scope of the power we afford the person we elect to this too little discussed, "down ballot" race. I hope that you will find it helpful, and that it will make clear that the Attorney General of Virginia is not the "chief law enforcement officer" or even the state's chief prosecutor (except in limited cases) but has a much broader job as the Commonwealth's "general and consumer counsel," "civil rights enforcement officer," and "legal advisor."

Choosing the People's Lawyer: Questions to Ask Candidates for Virginia Attorney General 

The Virginia Attorney General is the people’s lawyer serving as our advocate in consumer matters, defending our decisions as jurors in criminal appeals, protecting our investments in charitable organizations and institutions, initiating, and overseeing prosecution of government fraud and conflicts of interest, and advising the state officials and agencies who serve us. Just as you carefully choose the lawyer who advises your business and your family, each Virginian should look carefully at the qualifications and stated priorities of the two men running for Attorney General this year, current Virginia Attorney General Mark Herring (D) and Delegate Jason Miyares (R). 

Here are some questions to ask that will help you can decide which man to "hire" as your lawyer when you enter the polling booth to vote on November 2nd: 

How will the candidates represent your interests as "consumer counsel?" State law requires the Attorney General to represent the "interests of the people as consumers." What does this mean to the candidates for Attorney General? Will either of them take an active role in investigating and enforcing Virginia’s Consumer Protection Act prosecuting actively those who deceive consumers by making false claims about their products or services? What action will either take to protect consumers’ interests when the State Corporation Commission reviews insurance, electric and telephone rates? One past Attorney General helped reduce workers’ compensation insurance costs for businesses by aggressively fighting insurance rate cases before the State Corporation Commission. Others have been less active. 

How will each candidate decide when to challenge or defend a law passed by the legislature, appeal a case, or sign an amicus ("friend of the court") brief? Past Virginia Attorneys General, acting on behalf of the people of the Commonwealth of Virginia (their ultimate client), have: 1) refused to defend the legislature’s decision to increase office allowances for members of the House and Senate (the legislature won); 2) defended at trial and on appeal a plainly unconstitutional statute passed by the legislature that sought to ban a particular abortion procedure (the so-called partial birth abortion bill); 3) filed lawsuits attacking the application of certain EPA rules and the federal Motor Voter Law to Virginia; 4) authored or signed briefs that advocated severe limitations on the right of individuals to sue the state for discrimination under the Americans with Disabilities Act, the Age Discrimination Act and Title IX of the Education Amendments of 1972; 5) defended secrecy in the implementation of the death penalty; 6) defended solitary confinement in state prisons and 7) decided not to defend the unconstitutional amendment to our Virginia constitution that denies marriage equality to LGBTQ Virginians. How will this year’s candidates make these decisions? Will their choices reflect their personal beliefs, those of their respective political parties or some other standard? Will they consult with the Governor before committing the people of the Commonwealth to a side in a legal dispute? 

Will the candidates be "activists" or "strict constructionists when it comes to interpreting the law? State law requires the Attorney General to issue formal opinions interpreting state and federal law when asked by certain public officials. The questions asked each year cover far reaching issues from the legality of "pull tabs" in fraternal lodges to the right of localities to regulate shooting ranges to the Lieutenant Governor’s authority to vote as "a member of the Senate." Just as it is important to know how a judge will apply the law, it is important to know how a candidate for the office of Attorney General will perform this judge-like responsibility. One example shows the power the Attorney General can wield through the opinion function. In 1962-63, in 1966-67 and in 1991, three Attorneys General opined that it was unconstitutional under the Virginia Constitution for public school divisions to provide free bus service to students attending private religious schools. The three Attorneys General interpreted the Virginia Constitution as setting a stricter standard for the separation of church and state than is set by the First Amendment. This longstanding interpretation was never addressed by the Virginia legislature nor overturned by the Virginia courts. In 1995, stating simply that "I am of the opinion that these prior opinions do not accurately state the current law," then Attorney General James Gilmore issued an opinion overruling the prior opinions and interpreting the law as permitting local school divisions to provide bus transportation to students attending private religious schools. How will this year's candidates approach this important duty? 

Will the candidate be a good steward of your tax dollars? The Attorney General of Virginia, who makes a salary of $150,000 a year, is the managing partner of a public law firm with hundreds employees and a budget (inclusive of Medicaid fraud and the division of debt collection) of almost $60 million in state and federal funds -- not including the cost of additional lawyers paid for by various state agencies but supervised by the Attorney General (e.g., at universities), and the millions of dollars spent annually on outside counsel (private lawyers and law firms who handle matters ranging from intellectual property and immigration to issuance of bonds to collection work) ($11 million in 2013-14, the last data available regarding payments to private counsel on the current AG's website despite an express commitment to transparency and to updating budget info at the end of each quarter).

What steps will each candidate take to be sure that dollars spent on the state’s legal work are well invested and that the quality of representation provided to taxpayers is high? What will the candidates do to improve the state’s collection of debts owed and fines and penalties unpaid or to take steps to forgive debts (the Division of Debt Collection does operate under the auspices of the AG even though it is often not included in AG budget totals)? How will each candidate account for the $9,000 a year that he will receive as Attorney General for "expenses" "not otherwise reimbursed?"  Past attorney generals have kept and reported the amount as income and filed requests for reimbursements of all expenses. One disturbing reality of the current AG's budget management is that the office sought budget language that allows dollars allocated for consumer protection, anti-trust and "business regulation" to be spent on any "litigation initiated by the Attorney General" or on the costs of the civil commitment program that can result in people being committed to state mental health facilities for life after having served their criminal sentences for sex offenses.  This means money that was allocated to protect consumers and businesses from high utility and insurance rates and prosecute anti-trust violations can be diverted to non-consumer protection issues and cases.

Will the candidate’s management practices as Attorney General reflect a commitment to full equality of opportunity at all levels? Will the AG establish a culture of inclusion in the office? The Attorney General can hire and fire employees at will. No person employed in the AG's office enjoys the protections other state employees enjoy. Will the candidate seek and hire employees based on merit? Will the candidate commit not to discriminate in employment based on race, national origin, gender, religion, disability, Veterans’ status, sexual orientation, or gender identity? Will the candidate commit to ensure that the Office’s hiring and personnel practices reflect a commitment to merit over political affiliation and full equality of opportunity and compensation at all levels of employment? Will the candidate commit to assuring that office policies are enacted that respect the dignity of transgender employees? How will each candidate assure that the contracting and procurement practices of the Office of the Attorney General under his leadership assure that small, women and minority owned businesses get their fair share of the state dollars that the Office spends based on their market availability? Will the candidate agree to post to their websites their EEO-1 reports to the federal government that detail the make-up of their workforces? See this article I wrote for some historical background on this issue.

How will the candidate grow the Office for Civil Rights in the Department of Law (the AG's office) and protect against conflicts of interest when the state agencies the AG represents are the focus of discrimination complaints? 

The Office for Civil Rights in the AG's office was given expanded authority to investigate and litigate civil rights claims during the 2021 Special Session 1.  Included in this expanded authority is the authority to investigate pattern and practice claims of unlawful deprivations of civil rights by law enforcement personnel or agencies.  It is unclear yet how either candidate will act consistent with this new authority to prevent and provide relief from unlawful discrimination consistent with this policy set forth in the amended law: "It is the policy of the Commonwealth of Virginia to provide for equal opportunities throughout the Commonwealth to all its citizens, regardless of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, sexual orientation, gender identity, disability, familial status, marital status, or status as a veteran and, to that end, to prohibit discriminatory practices with respect to employment, places of public accommodation, including educational institutions, and real estate transactions by any person or group of persons, including state and local law-enforcement agencies, in order that the peace, health, safety, prosperity, and general welfare of all the inhabitants of the Commonwealth be protected and ensured." 

Voters should be asking both candidates for their plans to implement this new authority and protect all Virginians from discrimination in their workplaces, schools, and businesses.

How the candidates for Attorney General answer these questions will reveal much about what kind of leader each will be in the role he is now seeking and more about what kind of leader he might be as Governor when he (inevitably, it seems) decides to seek higher office in four years.

Transitions

Thinking about "retiring" this month after 9 years at the ACLU of Virginia, I turned as I often do to a book by Robert Grudin – Time and the Art of Living.

The book is a collection of Grudin's meditations about time organized into chapters including "Politics of Time", "Achievement", "Growth and Age". The front flap of the book jacket describes it as a "symphony of penetrating insights and observations about time and its elusive bounty."

I've been thinking about the urgency of time a lot as I register more and more "lasts" and fewer and fewer "firsts."  So, as I approached this transition, I found inspiration, solace and clarity in some of Grudin's "thoughts."

“No psychological message is so open to question as that which tells us that we have nothing left to do or to give.”

When folks congratulate me on “retiring,” I find myself resisting as I feel strongly I have much left to do and to give.  I hope folks who have wished me well in retirement won't feel baited and switched when I keep showing up in advocacy circles.

Perhaps the reason for the resistance is that I take to heart, perhaps too much to heart, this Grudin thought: “The years forget our errors and forgive our sins, but they punish our inaction with living death.”  Inaction just isn't in my nature.

 I agree with Grudin that “No matter where we are in age, we are always in the middle of time, and must weigh our future equally with our past.”

 When I think back on the past nine years at the ACLU of Virginia, I am deeply grateful that I was allowed the privilege of having time with so many good and committed people … staff, professional colleagues, ACLU board members, our supporters, family and friends. At the same time, I look forward to the freedom to define my future free from organizational imperatives.

 Grudin says, “those who labor for bread or money alone are condemned to their reward.”

The job of Executive Director of the ACLU of Virginia and all of the people associated with it have showered me with rewards -- in accomplishments, friendship, support, mentorship, constructive criticism -- over the last nine years that are so much more valuable than bread or money.  I feel nothing but gratitude for the opportunities this job provided.

Grudin opines that “The happy individual is able to renew daily and with full consciousness all the basic expressions of human identity: work, love, communication, play, and rest.”

Being Executive Director of the ACLU of Virginia and the people who were a part of and supported the work have offered me the opportunity to be one happy individual over the last nine years.  Who could ask for more?

Grudin counsels that “Written history is composed of actions; real history is actions compounded invisibly by refusals to act."

I am equally proud of the written history we created together at the ACLU of Virginia with our actions and the “real history” that includes the wise decisions we made from time to time not to act.  

Finally, Grudin reminds us that “In the heat of action, the mere ability to remember our principles, our goals and the specific reasoning behind the course we have taken is an element of courage. Memory is fear’s first victim.”

It has been hard to preserve “memory” at times over the last nine years. I am grateful to all who helped me to have the courage to fight fear and remember what the ACLU is/who I am, and to reexamine, as appropriate, the reasoning behind the course we have taken and consider carefully the course we should take in the future.

 I will miss working with the amazing staff we assembled at the ACLU of Virginia, our board members, supporters and my professional colleagues in the extended ACLU family.   I highly value the gift these nine years have been to me personally and professionally, and I thank everyone from the bottom of my heart for the roles that they may have played in our success and in my happiness! For me, standing in the middle, the future remains bright for the ACLU of Virginia and for me personally.

Ask Candidates for Governor -- Do you support the right to vote for all?

When challenged in 2016 by people asserting that his voter restoration initiative was a plan to qualify Black people to vote for Hilary, then Governor Terry McAuliffe chose to respond by publishing this data that showed that a majority (52%) of the 170,000+ people whose rights he restored were white (even though a majority of those disenfranchised were and are people of color).  

This disproportion reflected the reality of longer sentences post enactment of Virginia's "no parole" law in 1995 and the continued and increased racialization of the criminal legal system. This reality and the fact that about 12,000 more people (majority Black) are felonized each year demonstrate unequivocally that the only way to bring racial justice to the ballot box is by constitutionalizing universal suffrage -- guaranteeing the right to vote to every Virginian 18 and over -- a right that can't ever be taken away by the government from any person for any reason. 

We need to demand that every candidate for governor commit to champion the right to vote for all (no exceptions, no requirements other than age of majority).  

As Martin Luther King said, "give us the ballot and we will no longer have to worry the federal [or state] government about our basic rights." 

The vote is the foundation of our democracy, and it belongs to the people.  We should not allow government to take it away nor allow government to decide whether and when a person can get it back.

Making Room at the Top and for Self

In October, I announced my intention to "retire" from my job as Executive Director of the ACLU of Virginia. 

Here's what I said about my decision:

"It is with profound gratitude for the eight plus years that I have been honored to be allowed to serve as the Executive Director of the ACLU of Virginia that I submit my resignation effective March 31, 2021 or as soon as my successor is in place.

I wanted to provide this extended notice so that the transition can be a smooth one and the Board will have adequate time to search for the new Executive Director. I also wanted to time the transition so that it would fall at the end of the 2021 legislative session and at the beginning of our fiscal year. If it would be helpful, I am open to serving as a senior advisor to the new ED for a couple of months after they are onboarded.

I wanted to make the announcement of my “retirement” from this position before the election because I didn’t want anyone to think that my choosing to move on was a response to the outcome of the election, whatever it may be.

I have been thinking a lot about “retiring” as Executive Director since last June when Alexis Ohanian announced his resignation from the board of the company he founded, Reddit, as an answer to the question his daughter might ask following George Floyd’s murder, “what did you do?” Ohanian said he was resigning from the board to make room for a Black director. He said he believed “resignation can actually be an act of leadership from people in power right now.” That made me think about whether I should step aside from this leadership position in order to make room for the next generation of leadership at the ACLU. Justice Ginsburg’s death at age 86 accelerated my thinking in significant part because I am only 15 years younger than she was at her death. Fifteen years is not a lot of time in absolute terms and, in relative terms, it is almost no time at all.

I am ready to make room for new leadership to step in and step up now because the ACLU of Virginia is very well positioned to meet any challenges ahead, whatever they are. Since 2012 when I came on board, we’ve grown from 6 employees to more than 20. The people we have added to our team are exceptional in every respect. We have substantial resources in the bank to weather any downturn and invest in making and sustaining important and lasting change. We have an infrastructure in place to sustain and build on the foundation we’ve laid. We have a committed group of lay leaders on our Board of Directors. Our supporters and members now number over 100,000, up from 8,500 just four years ago this fall.

For me, personally, I have begun to long for the time when I was just “me” and not so closely tied to an organizational brand. I want the freedom to set my own schedule and priorities, to be active politically and to help elect the next generation of Virginia’s statewide leaders in 2021. I want to spend my “retirement” and the time I have left helping to make sure that Virginia is a place where all of my extended family (most of whom now live here) will be safe and welcome and where all of my friends feel valued and loved for who they are. I want to be free to look for opportunities to continue to make a difference so that, whatever happens in Washington, Virginia will

• continue to move away from its racially unjust history,

• continue the work to assure racial justice at the ballot box and in our criminal legal system,

• realize the promise of our “first in the south” protection of LGBTQ people from discrimination, and

• erase remaining barriers to people’s access to abortion and basic reproductive health care.

In a very real respect, I will not be leaving the work, just the workplace and the position of power I am holding. The ACLU of Virginia and all of the staff and Board members will retain their hold on my heart."

I was honored when Michael Paul Williams dedicated his column to my decision to make room at the top for the next generation to lead.

One Person Can Make a Difference ... and How!

 

Vigil --  Justice Ruth Bader Ginsberg

September 20, 2020

We are here tonight to pay our respects to a righteous woman who led the way for all of us.

Justice Ruth Bader Ginsberg’s dedication to her vision of an America where we are all truly equal --- where our policies and our laws do equity --- left us in a profoundly better place than she found us.  It is not an overstatement to say that, as Thurgood Marshall was the leading legal mind of the civil rights movement, Ruth Bader Ginsberg was the leading legal mind of the women’s rights movement.

At the ACLU, in Virginia and nationally, we are grieving Justice Ginsberg’s death as the death of a member of our family.  She was the first director of the ACLU’s Women’s Rights Project – a project founded only because of her unrelenting advocacy.  She assumed that position in 1972 and by 1974 the ACLU nationally had brought 300 cases challenging gender discrimination. Her strategy was an inclusive one … helping the mostly male judges understand that men and women (and non-binary people and transgender people) all are adversely affected by sex discrimination … by the limiting stereotypes that undergird traditional views of gender and sex.

For me personally, I know that I have experienced opportunities that I would not have had but for Justice Ginsburg’s advocacy. I am also grateful that opportunities that I was denied because I am a woman (like being able to attend UVA or any Ivy League school as an undergraduate or being able to get credit in my own name when I was a new law graduate) are now open to other women because of Justice Ginsberg’s legal leadership.  

For all of us, Justice Ginsberg’s death has us asking with trepidation … what does the future hold? Who will light the way forward?

For those who are tempted to see Justice Ginsberg’s death as the extinguishing of a light, I ask you to see it as the passing of the latern. Reach out and hold the light high so others can follow.

For those who are tempted to see Justice Ginsberg’s death as the end of a race, I ask you to see it as the completion of the lead off leg in an important relay. Reach out and accept the passing of the baton so that you can carry it forward and pass it to the next runner.

For all of us tempted to give in to hopelessness, I encourage you to remember Bryan Stevenson’s advice that hopelessness is the enemy of justice.  We must remain optimistic to do the work ahead.  We must be resilient.

I recently read an article in the NY Times by Eilene Zimmerman that asked why some people are more resilient than others. Zimmerman wrote that the “most resilient among us are people who generally don’t dwell on the negative, who look for opportunities that might exist even in the darkest of times.”  “Dedication to a worthy cause or a belief in something greater than oneself” also enhances resilience.  Zimmerman advised focusing energy on what can be changed and looking for meaningful opportunities in any difficult situation. And, she pointed out that resilient people don’t “go it alone.” Resilient people find or develop a support system.

So, let’s leave here tonight drawing resilience from our shared commitment to our worthy causes, promising to look for opportunities even in this dark time, and finding support from those here with us and our allies in the fight for reproductive justice and gender and racial equity. 

Let’s leave here committed to pursuing our cause at the polls in November and in Congress … 

Let’s leave here committed to working harder in the Virginia legislature to make Virginia laws more equitable and to ensuring that, whatever happens in Washington, 

·      our Commonwealth will continue to move away from its racially unjust history,

·      our Commonwealth will continue the work to assure racial justice at the ballot box and in our criminal legal system,

·      our Commonwealth will not go back on our “first in the south” protection of LGBTQ people from discrimination,

and

·      our Commonwealth will not reinstitute burdensome laws limiting women’s access to abortion and basic reproductive health care. 

May Justice Ginsberg’s memory be for a blessing and may her memory be for a revolution.

Playing on the Women's Team

 This is the text of a talk I gave in Richmond at a Mindful Mornings event.  What's most important in the context of this election and elections in Virginia in 2021 is where it ends --- 

"Let’s make a pact here and now that each of us will find and support a woman candidate for governor whose positions on issues we care about are aligned with ours, and refuse now to reject arguments that our candidate can’t win (because she can if we support her).

And, let’s agree not to criticize any woman who is running on her likeability, “electability” or other stereotype furthering basis. Let’s promise each other only to challenge women candidates with whom we disagree on the basis of our substantive disagreement on issues."

Then, and only then,

Only if we play on the women’s team

Can we ALL win.

Mindful Mornings

April 3, 2020

Gender Equity -- Electing Women

Our host, Mindful Mornings Richmond Chapter Founder Becky Crump suggested that I start by talking about who I am and how I came to be engaged in the work I do.

The simple answer is heritage and lived experience.

The heritage part:

I’m the oldest of six, the daughter of a career military officer and a mother who was an “activist” who helped ensure that there was a right to education included in the 1970 revision of the Virginia constitution.

I’m the granddaughter of the first woman to be a statewide Republican committee woman in New Jersey.

I’m also the granddaughter of a woman said to have jumped out of the stands at a high school football game to become the first woman “yell leader” in West Virginia.

And, I’m the great granddaughter of a woman who our family lore says road circuit as an intinerant teacher in Montana with Jeanette Rankin, the woman who went on to become the first woman in Congress when elected in 1916.

The lived experience part:

I went to elementary school when schools in Fairfax County were still legally segregated.

I got my first job when newspapers still said “help wanted men/help wanted women.”

I graduated from high school at a time when Virginia colleges and Ivy League schools were still gender segregated.

Aside:  proud to say now that 2 ACLU cooperating attorneys sued UVA in 1969 to change that.

I entered law school at a time when only 8% of the students were women. (It’s now almost 50%).

As a law student, I had to have my dad co-sign the loan for my first new car, not because I didn’t have the money but because the Equal Credit Opportunity Act hadn’t passed yet and that’s what banks required of women.

While in law school,  I made my first appearance before a Virginia General Assembly to testify in favor of the Equal Rights Amendment,  wearing the bracelet I have on today in celebration of Virginia’s status as the 38^th state to vote to ratify it.

Some firsts for women in my lifetime since I graduated from law school:

1^st SCOTUS justice

1^st state attorney general

1^st woman on the national ticket

1^st black woman U.S. Senator

1^st VA AG/1^st and only VA statewide elected official

1^st US AG

1^st Secretary of State

1^st Speaker of the U.S. House

In 2019, 1^st state legislature to be majority women (Nevada)

In 2020, 1^st VA Speaker and Clerk of the VA House, 1^st president pro tem of the VA Senate

In 1997, I wrote an article called “The View from the Balcony” about how few women were then in the Virginia legislature. At that time, only 15% of the members were women, and there were no woman on House Courts (where decisions were being made about domestic relations, abortion, and criminal laws), or Senate Finance where the budget was written and only one woman on House Rules that set the rules for the House.  The lack of women’s voices showed in what legislation was considered and how it was written.  Example 1995 “prison reform”/”no parole” law.  No women at the table when the bill was being written, not in the legislative committees, not from the AG’s office, not from the Governor’s office.  If there had been women in the conversation, would prevention been a topic of discussion in addition to punishment? We won’t ever know.

Twenty two years later, this year the view and the outcomes are quite different.  Women now make up almost 30% of the legislature. The House Speaker, House Clerk and House Majority leader are all women.  There are five women on House Courts including the chair and vice-chair; six on House Rules, including the Speaker as chair; and five on Senate Finance, including the chair. The President Pro Tem of the Senate is the first woman and first Black person to serve in that capacity. 

And, the impact is evident in the list of legislation that is being considered and passed including:  the ERA; repeal of restrictive abortion laws; new anti-discrimination laws; a pregnant workers’ fairness act; a bill to mandate free tampons and pads for students; an increase in the minimum wage that includes domestic workers; bills addressing school lunch and distribution of excess food; changes in juvenile criminal laws limiting life without parole, trial as adults and custodial interrogation without notice to parents; bill requiring baby changing facilities in public buildings; a bill defining birth control; a bill establishing a Director of Diversity, Equity and Inclusion; bills protecting trans students in schools; a bill regulating doulas and prohibiting health insurers to require pre-authorization to transfer a newborn to another hospital when the child needs specialized care.

All of this is great, of course, but this week should help us all see that our “women’s work” is far from done.

Knowing from our experience what a difference the presence of a critical mass of women and women’s leadership can make – we need to ask ourselves why we haven’t and don’t seem to want to elect a woman to the top job in our state or the nation.

When I talk about wanting to elect a woman governor or president, people often challenge me by asking whether that means I would support a woman who they absolutely know isn’t aligned with me on issues I care about, and, if not, why not?

In my view, however, the right question is not whether I would vote or any woman regardless of her position on issues I care about.  The right question is why a person wouldn’t vote for a candidate who agrees with them on issues they care about just because that candidate is a woman.

A 2019 NY Times poll found that 41% of people said they’d vote for Biden but not Warren over Trump. The reason: women who run for president “just aren’t that likeable.”

In a January 2020 CNN poll 20% of women said a woman could not win the presidency compared to 9% men. This despite the amazing gains made by women in the 2018 mid-term and state elections and the 2019 election results in Virginia.

Why is this? Bottom line, women who run for the presidency (and in Virginia for the governorship) violate social norms – including simply the presumed arrogance of pursuing an ambitious political goal.  These candidates confront what Kathleen Hall Jamison called out as “double binds” like you can’t be both feminine and competent.  You can’t be assertive and nurturing.

Brittany Cooper, a self-described black feminist, writing in Time Magazine argues that Warren’s gender was and should have been an “edge” for Warren and was not irrelevant as some on the left argue. Cooper said, “the experiences one gains from being marginalized because of racism and sexism offer invaluable perspectives that often make candidates inclined to be more egalitarian and inclusive, precisely because they know intimately what exclusion feels like.”

But, the reality is that Warren’s gender was said even by progressives to irrelevant or a disqualifier.

And, a key trope was that people didn’t support Warren because she was a woman, but because of the kind of woman she was.

Haven’t we all heard that before?  And, I’m not referring to Hillary Clinton, although people said that often in 2016 and after.

I am referring to Mary Sue Terry. During her campaign, Patricia Cornwell (yes, that Patricia Cornwell) cut an ad for Terry’s male opponent in the governor’s race in which she literally said that Virginia needed a woman governor “but not this woman.”

Why does this matter? Because as Gail Evans points out in her book “She Wins, You Win,” a woman’s criticism of another woman has a saliency that a man’s criticism would not.

Evans says “every woman must always play on the woman’s team” in the office and I believe in politics. Evans underscores that “every time a woman succeeds your chance of succeeding increases. Every time a woman fails, your chance of failure increases.” Mary Sue Terry’s 17% loss in 1993 and Clinton’s loss in 2016 have made people (including women) more “nervous” about whether a woman can get elected as governor or president.

When women participate in criticizing other women, they perpetuate stereotypes that come back to hurt their own chances of success.

No one gives power away. The more we women help each other the more we all move toward greater success – if we don’t help we all take a step backwards.

So what now? Our choice to elect a woman as the 45^th president has now passed us by.

But there is an election for the next governor of Virginia in 2021.

Let’s make a pact here and now that each of us will find and support a woman candidate for governor whose positions on issues we care about are aligned with ours, and refuse now to reject arguments that our candidate can’t win (because she can if we support her).

And, let’s agree not to criticize any woman who is running on her likeability, “electability” or other stereotype furthering basis. Let’s promise each other only to challenge women candidates with whom we disagree on the basis of our substantive disagreement on issues.

Then, and only then,

Only if we play on the women’s team

Can we ALL win.

The Debates

So, in 2004, I wrote this about the Bush/Kerry debates:

Is it just me or are these guys (Bush/Kerry) lining up at the stop light in their hemi Dodges revving their engines...rearing up on their hind legs like stallions pawing the air with their hooves ... putting their heads down and snorting and pawing the ground... butting heads like two mountain goats... 

guess you get my drift... 
Watching Obama/Romney, Kaine/Allen it seems that not much has changed.  

Is this what Americans really want/expect from our current and potential leaders?

The Price of Inaction

Looking for something else on my blog today, I came across a post that I wrote this in November 2006, that included these comments on a study of the experience of women of color in law firms, almost 50% of whom had reported being subjected to some kind of harassment on the job:

There is open hostility and rising fear out there regarding the rate of change in America .. change that has pushed women into the majority among undergraduates in college ... change that is moving America consistently in the direction of greater population diversity and a reversal of the definition of "majority" and "minority" in some states (California, Texas) and many urban areas (Washington, DC) ... change that is moving America toward greater tolerance, and, ultimately, acceptance of sexual minorities.

This fear and hostility often reveals itself in the treatment of those perceived as less powerful ... women of color, gays and lesbians, immigrants, geeks in schools controlled by jocks, etc.
These folks are like the canaries in the coal mine. Evidence of continued intolerance toward the less powerful (the least of us), especially where such intolerance is accepted or rationalized (whether by faith, homeland security or otherwise), is a powerful suggestion that all is not well in our democracy. 

We who fail to see the signs, those who refuse to speak out against intolerance/injustice where ever it appears, may yet reap a bitter harvest, as those who have power act to keep it and we who remained silent end up like the women in The Hand Maid's Tale consigned to certain roles by the will and force of "the majority."

"The years forget our errors, and forgive our sins, but they punish our inaction with living death." Robert Grudin, Time and the Art of Living

In the intolerant atmosphere of the past legislative session and current election cycle, and in light of the horrific events in a movie theater in Colorado and a Sikh temple in Wisconsin, the thoughts I had then seem particularly salient today nearly six years later.