Virginia Governor Orders Voting Rights Restored for Felons

By Christopher Zoukis

Governor Terence McAuliffe

Governor Terence McAuliffe

In a sweeping action likely to face court challenge, Virginia’s Democratic governor Terence McAuliffe last week signed an executive order to remove a provision in the state’s constitution, dating back to the Civil War, which strips former felons of their voting rights.

Under the governor’s order, all Virginia felons who have completed their sentence and any subsequent probation or parole will automatically have restored their rights to vote, serve on juries, and hold public office. In announcing the change, the governor estimated up to 206,000 ex-felons could regain voting rights.

McAuliffe also stated that, after issuing his “Restoration of Rights” order, he would issue new orders periodically restoring the rights of those who have recently completed their sentences and post-release supervision.

The governor’s order observed the state’s disenfranchising of ex-felons dates back to the Civil War which, like poll taxes and literacy tests, was a tool used by white supremacists to restrict voting by African-Americans. It also noted stripping voting rights from felons disproportionately affects low-income and African-American citizens, citing estimates that past felony convictionsaffect about 7% of the state’s voting-age residents and around one-fifth of African-Americans inVirginia.

Long one of the handful of states that disenfranchise all felons for life except those who, after a prescribed waiting period, applied for and received restoration of their voting rights, Virginia has over the past dozen or so years seen governors from both parties reduce or eliminate the waitingperiod for certain groups of ex-felons. But they also have declared they lacked the power underthe state constitution to issue orders restoring the voting rights of entire classes of ex-offenders – as McAuliffe’s order would do.

Unlike his predecessors, McAuliffe claims the state constitution allows him that power, but the state’s Republican legislative majority is likely to file suit to contest that. Some critics of the governor’s action claim it is more motivated by political rather than by civil rights concerns. They note, for example, that McAuliffe is a former Democratic National Committee chair and headed Hillary Clinton’s 2008 presidential bid. In their view, the governor intends to make create potentially hundreds of thousands of eligible new voters from demographic groups with patterns of backing Democratic candidates, in a year in which Virginia is a likely to be swing state in the race for the White House.

If former felons in Virginia register and vote at the same relatively low rates as their counterparts in other states where recent law changes have made ex-offenders newly-eligible, Democratic vote totals might increase by about half a percentage point – a small difference that would only be significant if the election tightens to be closer than any state was in 2012.

The Republican speaker of Virginia’s House, for example, reacted to McAuliffe’s order by pronouncing himself unsurprised at the “lengths to which he is willing to go to deliver Virginia to Hillary Clinton in November.”

In recent months, politically charged battles over restoring voting rights to ex-felons have played out in Kentucky (where the incoming Republican governor rescinded an order like McAuliffe’s issued by his Democratic predecessor) and Maryland (where the GOP government vetoed a similar measure passed by the Democratic legislature, which ultimately reversed the veto.

Christopher Zoukis is the author of College for Convicts: The Case for Higher Education in American Prisons (McFarland & Co., 2014) and Prison Education Guide (Prison Legal News Publishing, 2016). He can be found online at ChristopherZoukis.com, PrisonEducation.com and PrisonLawBlog.com