King v. Youngkin

Overview

Protect Democracy, the ACLU of Virginia, and WilmerHale have filed a lawsuit in federal court challenging the Virginia Constitution’s broad felony disenfranchisement provision, arguing that its lifetime ban on voting rights for everyone convicted of any felony violates the federal Virginia Readmission Act. On March 18th, 2024 the U.S. District Court for the Eastern District of Virginia ruled that the Plaintiffs’ claims brought under the Virginia Readmission Act has merit and could proceed.

The Virginia Readmission Act was signed into law in 1870 by a Reconstruction-era Congress seeking to protect the civil rights of newly emancipated Black citizens in former Confederate states. Like the other Readmission Acts for former Confederate states, the law expressly prohibits Virginia from depriving any citizens of the right to vote, except for people who have been convicted of the narrow set of crimes that were “felonies at common law” in 1870–namely, murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny.  Many modern-day felonies, such as drug crimes, are not crimes that were “felonies at common law” as of 1870. But Virginia’s sweeping ban, which disenfranchises everyone convicted of any felony, was specifically crafted with the intent to disenfranchise the state’s Black citizens, and therefore violates federal law. 

The lawsuit was filed by Virginia residents Tati King, Melvin Wingate, Toni Johnson, and Bridging the Gap in Virginia, a non-profit that helps formerly incarcerated people successfully re-enter mainstream society. 

The Plaintiffs

Plaintiff Tati King is unable to vote due to a 2018 drug conviction, for which he has completed his incarceration and parole. Mr. King, now 52, lives in Alexandria, VA, with his fiancée and children, and wants to use his vote to set an example for his children and grandchildren by having his voice, and his experience as a formerly incarcerated person, heard through his vote for the first time in his life. 

Plaintiff Melvin Wingate, a 54-year-old minister and a mentor for individuals with mental health and substance abuse issues, is unable to vote due to a nearly 30–year-old felony conviction for uttering, a type of fraud. Despite being released from incarceration over 20 years ago and having paid all fines and completed parole, Virginia’s felony voting ban has stripped him of his voting rights for the rest of his life. Mr. Wingate, a resident of Charlottesville, VA, wants his voice and perspective to be heard through his vote as a participant in shaping our shared society. 

Plaintiff Toni Johnson is unable to vote due to several drug-related convictions in 2021, for which she completed her incarceration in 2022. Ms. Johnson, at age 60, lives in Marion, VA, where she cares for her ailing wife at home, and values her voting rights because she was taught by her grandfather the importance of civic participation. She wants to be able to advocate for others who have also had their rights taken away. 

Bridging the Gap in Virginia is a non-profit organization that seeks to empower formerly incarcerated persons, veterans, at-risk youth, substance abusers and those suffering from homelessness. It seeks to help these groups of people effectively transition into mainstream society with positive outlooks towards sustained success. Bridging the Gap in Virginia was dismissed from the case in March 2024 after a federal judge ruled that they lacked standing to bring suit.

Background

Virginia’s lifetime ban on voting for anyone convicted of a felony violates the federal Virginia Readmission Act. The Readmission Acts, which set the terms of formerly Confederate states’ readmission to representation in Congress, explicitly  limit those states’ abilities to pass any laws disenfranchising citizens except for in narrowly defined circumstances. 

The Virginia Readmission Act, signed into law in 1870, expressly states: “That the Constitution of Virginia shall never be so amended or changed as 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” (emphasis added).  

A more detailed explanation is available here.

Despite this clear federal mandate, Virginia’s constitution, amended in 1876 and then again in 1902 to include the felony voting ban, and again in 1970 to continue that same ban, is currently in violation of the Virginia Readmission Act because it prohibits anyone convicted of any felony from voting for the remainder of their lives. This lawsuit seeks to challenge over 100 years of illegal disenfranchisement of Virginians by their government. 

Our lawsuit comes at an increasingly critical time for voters in Virginia: 

Governor Glenn Youngkin has recently unilaterally changed the process by which citizens of Virginia can ask for their voting rights to be restored. Unlike the process under recent Democratic and Republican Governors of Virginia, this new process is no longer automatic, but discretionary, and requires an individual application. Local lawmakers’ calls for transparency regarding the process and any changes made to the criteria have been met with little acknowledgement. But even this discretionary process for rights restoration violates federal law — Virginians who have been convicted of any felony besides those that were “felonies at common law” in 1870 cannot be permanently disenfranchised. And in the meantime, Virginians who have already served their time for convictions are left in limbo, unable to perform the most fundamental right of democratic participation. Governor Youngkin’s discretionary rights restorations have thus far amounted to only 4,300 restorations in his first year — less than 4% of the number of restorations that former Governors Northam and McAuliffe granted in the same time. Now more than ever, Virginians deserve their voting rights back. 

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