The Battle Over Voting Rights for Former Felons in Virginia

On Monday, Virginia Governor Terry McAuliffe announced that he had restored the voting rights of an estimated 13,000 people who were previously unable to vote due to the state’s ban for people who have been convicted of felonies. There are still an estimated 187,000 felony-disqualified voters who need McAuliffe’s help to vote this year. But casting ballots isn’t all that’s at stake.

In Richmond, Kevin Starlings is waiting to see whether McAuliffe’s act frees up his run for the school board. Also in Richmond, Michelle R. Mosby is hoping that a signature from a person with a felony conviction on a petition that qualified her candidacy won’t be revoked. McAuliffe’s move restores former felons’ voting abilities, but it’s not yet clear what that means for people considering running for office or signing political petitions.

Starlings and Mosby are both African Americans, and these current complications illustrate a point made by political scientists recently on how African Americans are disproportionately disenfranchised in many ways beyond voting.

McAuliff’s efforts to restore voting rights in Virginia, has been no small task. As McAuliffe indicated in a press release on Monday about the 13,000 people whose voting rights he’s restored, that was “a significant undertaking of numerous state agencies that maintain information in different ways.”  

At one point, he thought that it might be easy. In April, McAuliffe signed an executive order that automatically restored the voting rights of nearly 200,000 Virginians with felony records. This effectively neutralized a state law that imposes a lifetime ban on voting for those who’ve been convicted of felony crimes. It’s one of the harshest felony disenfranchisement laws in the nation—it’s still active and can only be undone by amending the state constitution.

Republicans took umbrage with McAuliffe’s executive order and took the governor to court over it. A state supreme court sided with the GOP in July, ruling that the executive order was unconstitutional, and ordered the state to invalidate the voter registration of any former felon tied to it.

However, the court’s ruling only applied to McAuliffe’s blanket proposal authorizing automatic restoration for all former felons. The court did not tamper with his power as governor to restore voting rights to each person on an individual-by-individual basis. So McAuliffe vowed to do exactly that—which is how we get to the 13,000 people whose rights he restored Monday. He did them one-by-one, apparently via autopen. He has roughly 187,000 more people to go.

McAuliffe said in his press release that he hopes his autopen-approach “marks the end of the partisan battles” over this issue, but it likely will not. Beyond additional Republican resistance to voting-rights restoration in general, there’s still the issue of confusion over who gets to participate in the upcoming elections. The back-and-forth between the governor’s executive order in April, the July state supreme court decision nullifying it, and Monday’s announcement has created a lot of uncertainty about who is eligible.

It’s the kind of uncertainty that those who don’t want former felons to vote can exploit in hopes that they won’t, even though they are now eligible. Or the kind that could disqualify African Americans like Starlings and Mosby from running for office.

Republicans pounced on this kind of confusion in Florida, the strictest state for felony disenfranchisement, during the 2012 elections. Back then, the state was sending letters to people with felony records that conflicted with letters people were getting from the counties they lived in about their voting eligibility. Some of those people resigned to not voting at all, afraid of triggering voter fraud accusations or probation and parole violations. That kind of self-disenfranchisement is the logical outcome when the state doesn’t clarify its rules around who can and can’t vote. And it’s no surprise that these problems fall most heavily on black voters when U.S. felony disenfranchisement laws have been maintained historically for the function of keeping African Americans away from the ballot.

As McAuliffe said at his press conference at the Virginia Civil Rights Memorial in Richmond, “Virginia’s felon disenfranchisement policy is rooted in a tragic history of voter suppression and marginalization of minorities, and it needs to be overturned.”

Overturning is just the first step. After that comes getting the rest of the state’s administration and elected representatives to accept and understand why it needed overturning, so that a de facto disenfranchisement doesn’t remain in place.