A Virginia Lawsuit Lays Bare the Racist History of Felon Disenfranchisement

Guest writer Steven Hirsch breaks down the shameful practice in the U.S.

Photo via Steven A. Hirsch.

There are many things that we Americans have long tolerated even though, in most prosperous Western nations, they would be considered aberrational. Think of mass incarceration, the death penalty, military-grade weapons sold willy-nilly to mentally unstable individuals, staggering wealth inequality, lack of paid parental leave, the absence of universal health care, and crippling student loans, to name a few. Some of these we came to accept as part of the natural order of things—until one day, we didn’t, and they became the subjects of social movements and sometimes partial reform.

Recently, I came belatedly to understand that another one of those things is felon disenfranchisement—the lifelong deprivation of voting rights for people, disproportionately ones of color, who have already served their time for felony convictions. Americans don’t think or talk about that subject very much, just as we don’t think or talk about how the constitutional ban on slavery doesn’t apply to prisoners. (If that’s news to you, check out the Amendment’s text right now. See? Slavery remains constitutional—in prison.) Like those other things, felon disenfranchisement just forms part of our background understanding of how our world works. After all, doesn’t every country do that?

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No, they do not. The United States stands alone among the world’s major democracies and industrialized nations for its broad, automatic loss of voting rights for people with felony convictions—deprivations that continue even after they’ve completed their sentences. In 2022, an estimated 4.6 million people—two percent of the total U.S. voting-eligible population—were disenfranchised due to a felony conviction. Three- fourths of them had fully completed their sentences or remained supervised on probation or parole.

Like so many things in American life, felon disenfranchisement has a racial angle. One in 19 African Americans of voting age is disenfranchised, a rate 3.5 times that of non-African Americans. In eight states—Alabama, Arizona, Florida, Kentucky, Mississippi, South Dakota, Tennessee, and Virginia—more than one in 10 African American adults is disenfranchised. 

But a recent lawsuit in Virginia federal court serves both as a wakeup call and a reminder of the shameful racist history that led to lifetime felon disenfranchisement. That lawsuit, King v. Youngkin, asserts that Virginia’s lifetime voting ban on persons convicted of any felony is itself a violation of federal law. I’m writing this because I recently filed a friend-of-the-court brief in the Virginia case on behalf of Professors Kate Masur and Gregory P. Downs, two distinguished scholars of post-Civil War U.S. history.

As the scholars’ brief explains, when Congress allowed the former Confederate states back into the Union after the Civil War, it passed statutes setting conditions on how those states must treat their newly freed Black citizens. One of those acts banned Virginia—forever—from changing its state constitution to enlarge felon disenfranchisement beyond a handful of then-existing non-statutory (“common law”) Felonies.

What followed throughout the South was a short-lived period of radical reform known as Reconstruction, in which Black men (no women could yet vote) became entitled to vote and run for office and began to team up with white populist forces to obtain actual power in the Southern states. Black men in unprecedented numbers became legislators, judges, and local officials. (Readers interested in this half-forgotten period can turn to a recent series of articles about it in The Atlantic, or they can read this excellent summary by Professors Masur and Downs. For a deeper dive, try historian Eric Foner’s classic book-length works on the subject.)

But this remarkable democratic flowering was short-lived. From the mid-1870s to the mid-1890s, violent paramilitary groups like the Ku Klux Klan terrorized Black communities and wore down the North’s resolve to protect the rights of the freedpeople.

In tandem with those efforts, southern states restricted Black suffrage through election-day fraud and coercion—physical and verbal intimidation, destroying or miscounting ballots, stuffing ballot boxes, and printing misleading ballots. Strangely enough, to modern ears, the secret ballot—now considered a hallmark of free and fair elections—became widely adopted in this period as a means of disenfranchising illiterate Black and white voters who needed help from others to fill out their ballots.

But southern elites came to think of these shady election-day tactics as unseemly and too obviously violative of the federal constitution. To regain “respectability” and get the North off their backs for good, the South replaced retail-level election-day fraud with wholesale “legal” disenfranchisement in the form of new state constitutions that used facially neutral rules to disqualify the entire Black electorate in one blow by making it impossible for Blacks to register to vote in the first place. Between 1890 and 1908, in the name of this political “reform,” southern states amended their constitutions with the express purpose of “eliminat[ing] the ignorant and worthless negro as a factor” in politics and government, to quote the president of Virginia’s constitutional convention.

Alongside poll taxes and literacy tests, one of the key disenfranchisement strategies involved expanding the list of crimes that would trigger a lifelong voting ban. Zeroing in on a loophole in the federal Constitution’s Fourteenth Amendment, Virginia became one of many states that thumbed its nose at the Readmission Acts by expanding its voting ban to include “any” felony—not just the handful recognized in 1870—as well as an array of minor property crimes that the delegates considered to be particularly attractive to the formerly enslaved. (Ironically, in Mississippi, the list did not include the more “robust” crimes, such as robbery, rape, and murder, thought to be more prevalent among whites.) And the new 1902 constitution granted Virginia’s General Assembly the power to further expand the list of disenfranchisable crimes.

Although Virginia’s current constitution, adopted in 1971, eliminated many racist restrictions, it also carried forward a provision extending disenfranchisement to scores of statutory felonies, including drug-related offenses that didn’t even exist in 1870 and that have contributed mightily to the mass incarceration of Black citizens. Even today, that provision bars over 20 percent of Virginia’s African American voting-age population, and more than seven percent of its total adult population, from voting—one of the highest disenfranchisement rates in the nation.

Virginia was allowed back into the United States on the condition that it never expand felon disenfranchisement—and having taken advantage of that deal, went ahead and broke that promise and many others intended to protect the rights of Black citizens. The Virginia lawsuit takes aim at this violation of federal law and seeks to strike the felon-disenfranchisement provision from the Virginia constitution. 

As a recent federal appellate opinion observes, “our society has set its face against permanent disenfranchisement as a punishment,” with the result that, “today, thirty-five states plus the District of Columbia disavow [that] practice.” That court held that permanent felon disenfranchisement violates the Eighth Amendment’s ban on cruel and unusual punishments, a theory adopted in the Virginia suit as well. To disenfranchise in violation of a clear Congressional prohibition is doubly reprehensible. It’s time to eliminate this illegal and anachronistic vestige of racist oppression—in Virginia and everywhere else.

Steve Hirsch is Of Counsel to the San Francisco law firm of Keker, Van Nest & Peters, LLP, where he practices appellate law and also assists a variety of public-interest organizations devoted to arresting the United States’ slide into autocracy.

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