Protect Democracy, ACLU of Virginia, and WilmerHale file lawsuit on behalf of disenfranchised Virginians

JUNE 26, 2023 – RICHMOND, Va. – Today Protect Democracy, ACLU of Virginia, and WilmerHale on the behalf of individual plaintiffs Melvin Wingate, Tati Abu King, and Toni Heath Johnson, as well as Bridging the Gap In Virginia, filed a first-of-its-kind lawsuit in federal court challenging the Virginia Constitution’s felony disenfranchisement provision. The case claims that Virginia is in violation of the 150-year-old federal law that established the terms of Virginia’s readmission to representation in the United States Congress after the Civil War.

Today, Virginia is one of only three states whose constitutions automatically disenfranchise all people with felony convictions unless the governor restores their right to vote. And of the three, Virginia is the only one that further requires everyone with a felony conviction to individually petition the governor to restore that right.

“As a minister, I’m a firm believer in second chances and being able to vote would be a chance for me to participate fully in my community,” said plaintiff Melvin Wingate “but since I was released in 2001, I’ve been unable to vote in five presidential elections, six midterm elections, and five Virginia gubernatorial elections.”  

Following the Civil War, former Confederate states intent on keeping newly freed Black voters away from the ballot box targeted them with a growing number of criminal convictions, and then stripped people with criminal convictions of their right to vote. 

“Some of the most pernicious attempts to suppress the voting rights of Black citizens originated in the immediate aftermath of the Civil War, but they have consequences that persist to this day,” said ACLU of Virginia Senior Supervising Attorney Vishal Agraharkar. “Our constitution has enabled mass disenfranchisement through decades of over-criminalization, and it turns out that was illegal.” 

To prevent such targeted disenfranchisement, the Virginia Readmission Act explicitly prohibits Virginia’s Constitution from being “amended or changed to deprive any citizen or class of citizens of the right to vote, except as a punishment for such crimes as are now felonies at common law.” In 1870 these crimes were: murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. 

But just a few years later, Virginia amended its Constitution, in violation of the Virginia Readmission Act, to disenfranchise people convicted of a far broader set of crimes. 

“The case filed today alleges that by disenfranchising all people with felony convictions, Virginia’s constitution violates a Reconstruction-era law called the Virginia Readmission Act, one of several federal Readmission Acts that established the terms under which former Confederate states could regain representation in Congress,” said WilmerHale Partner, Brittany Amadi. 

Today, the Virginia Constitution disenfranchises all people convicted of any felony – including those that were not “felonies at common law” in 1870. As examples, drug offenses or publishing a document someone else forged — both felonies for which plaintiffs named in this suit lost their right to vote — were not felonies at common law in 1870. The lawsuit argues that Virginia cannot disenfranchise people convicted of those or other categories of crime without violating the Virginia Readmission Act. 

“I lost my right to vote because I was convicted of charges related to drug possession,” said Toni Heath Johnson, a 60-year-old resident of southwest Virginia. “But I’ve served my sentence. Being barred from voting amounts to a second sentence, especially since voting is a fundamental part of my ability to have a voice in decisions that better my life, my family’s lives, and my community.” 

The case could have significant impact. More than 300,000 Virginians are estimated to be disenfranchised as a result of a felony conviction, according to the Sentencing Project. Nationally, one in 19 eligible Black voters is disenfranchised – nearly four times the rate for the non-Black population; in Virginia, the rate is more than twice as high, as one in eight eligible Black voters is disenfranchised. The individual plaintiffs named in the lawsuit come from across the Commonwealth and have collectively been barred from casting their ballot in 22 elections since their felony convictions.

“There are a lot of Black men like me who have had their voting rights taken away. That means I have no voice in what’s happening in my community, in my state.” said Tati Abu King, a 52-year-old resident of Alexandria, Virginia. “What am I supposed to tell my stepchildren who are learning at school that democracy means everybody has a voice?”

This lawsuit seeks to redress this wrong and restore the voting rights Congress guaranteed to Virginia’s citizens in 1870.  

“Because Virginia currently disenfranchises people convicted of all felonies, it directly violates federal law,” said Rachel Homer, Counsel at Protect Democracy. “Virginians’ government has illegally disenfranchised people for more than 100 years. But this lawsuit proves that it’s never too late to right a wrong.” 

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About Protect Democracy, Protect Democracy is a cross-ideological non-profit group dedicated to defeating the authoritarian threat, building more resilient democratic institutions, and protecting our freedom and liberal democracy. Find out more at www.protectdemocracy.org.

About the ACLU of Virginia, The ACLU of Virginia promotes civil liberties and civil rights for everyone in the Commonwealth through public education, litigation, and advocacy with the goal of securing freedom and equality for all. For more information on the ACLU of Virginia go to www.acluva.org.

About WilmerHale, WilmerHale is a leading, full-service international law firm with more than 1,000 lawyers located throughout 13 offices in the United States, Europe, and Asia.  Our lawyers work at the intersection of government, technology, and business. WilmerHale maintains a steadfast commitment to pro bono representation and public service and believes in an inherent obligation to ensure equal access to justice for underserved communities around the world.  Learn more about WilmerHale at www.wilmerhale.com.