Black History Month II: Felon Disenfranchisement, an Open Wound

By Kent Willis Executive Director

When I argue that Virginia’s harshest-in-the nation felon disenfranchisement law is race-based, opponents who know a little history like to point out that our laws against felons voting predate the Civil War, to a time when African-Americans couldn’t vote anyway.

But, as with most knowledge, a little of it can lead one astray pretty easily.

It is true that laws in Virginia dating back to the seventeenth century disqualified any “recusant convict” from casting a ballot, and that those laws were amended in the early nineteenth century to prohibit voting by individuals convicted of “infamous offenses.”

The modern history of felon disenfranchisement in Virginia, however, begins in 1870, when state lawmakers followed the passage of the Fifteenth Amendment, which guaranteed the right to vote regardless of race or color, by amending the Virginia Constitution to deny voting rights to any person convicted of a felony.

This wasn’t coincidence or a newfound concern for the integrity of the voting process.  Virginia, like most southern states, was arresting and convicting former slaves at an alarming rate.  Lawmakers knew that a sweeping provision denying voting rights for all felons would disproportionately impact African-Americans.

If anyone ever wondered exactly what post-Civil War Virginia lawmakers thought about minority voting rights, they need look no further than the minutes of the 1901 Constitutional Convention.

The words of imminent Virginians who gathered for this historic undertaking may grate on twenty-first century sensibilities, but they are instructive.  At the convention, when one participant balked at a proposal intended to discriminate against African-Americans, delegate Carter Glass declared, “Discrimination! Why that is precisely what we propose, that exactly is what this convention was elected for.”

The convention was certainly a success in that regard, adding mandates for poll taxes and literacy tests, while leaving in place felon disenfranchisement and the ban on elected school boards, the latter allowing white-dominated office holders to control appointments.  Convention delegates also approved “grandfather clauses” that exempted civil war veterans and their offspring — who were overwhelmingly white, of course — from having to pass literacy tests or pay poll taxes.

As these Jim Crow provisions took shape at the convention, Glass proudly announced,  “This plan will eliminate the darkey as a political factor in this State in less than 5 years, so that in no single county…will there be the least concern felt for the complete supremacy of the white race in the affairs of government.”

Glass was prophetic to a degree he probably couldn’t imagine.  Within a year of the new constitution being put in place, the number of registered African-American voters had plummeted from 147,000 to 22,000, a decrease of 85%.

By the end of the 1960s, court decisions and new federal civil rights laws had forced Virginia to eliminate poll taxes, literacy tests, and the grandfather clauses.

Virginia held another constitutional convention in 1970, but delegates, many of whom had supported Massive Resistance, were not willing to address felon disenfranchisement.  This ended up being a greater disservice than simple avoidance would indicate, for several courts have since ruled that the well-documented racist intent of the 1901 convention was washed clean by the silence of the 1970 convention.  With the racist intent off the table, challenging the felon disenfranchisement provisions in court becomes much harder.

In 1992, Virginia became the last state in the nation to allow elected school boards, leaving felon disenfranchisement as the lone formal vestige of Jim Crow.

Now, as one of only two states that permanently disenfranchise all felons (requiring an act of the governor for voting rights to be restored), Virginia is practically alone in the nation in this regard.   Every state — except for us and our evil twin, Kentucky — has eliminated automatic life-long disenfranchisement for all felons.

Black History Month celebrates the contributions of African-Americans to our society, while serving as a reminder of how much progress we have made in the century and a half since the Civil War.

It is also a reminder of what still needs to be done.  In Virginia, even if we are still far from the finish line, we can show progress on nearly every front in the battle for racial equality –with the exception of felon disenfranchisement, which still disproportionately impacts racial minorities.

In recent years, the General Assembly has shown an interest in amending the state constitution to reform felon disenfranchisement laws.  With the backing of religious leaders and civic and community groups from across the state, the Senate, with bipartisan support, regularly passes such an amendment.  Unfortunately, bills consistently die in the House of Delegates, which seems to have no interest at all in addressing this issue.

Prompted by the Fifteenth Amendment in 1870, embraced by Virginia’s Jim Crow constitutional convention in 1901, silently endorsed at the 1970 constitutional convention, and supported by current-day lawmakers, Virginia’s felon disenfranchisement law is an 140 year-old open wound.

Take Action to Reform Virginia’s Felon Disenfranchisement Law

If you would like to become part of the movement to help Virginia eliminate felon disenfranchisement, go to www.restoreourvote.org.  As this is being written, the House has again dismissed its felon disenfranchisement reform bill, and the Senate has passed its bill.  It’s a long shot, but members of the House Privileges and Elections Committee, which will soon address the Senate bill and should be urged to support felon disenfranchisement reform.  Take action today by contacting members of the committee.