The Commonwealth’s lifetime disenfranchisement of voters convicted of any felony violates the 150-year old Virginia Readmission Act

Virginia’s lifetime ban on voting for anyone convicted of any felony violates a little known federal law: the Virginia Readmission Act, passed in 1870. This law is a federal Reconstruction-era statute designed to protect the newly-enshrined rights — including the right to vote — of formerly enslaved citizens. Called the Readmission Acts, these laws set requirements governing the readmission to Congress of representatives of the formerly Confederate states following the Civil War. They included, among other things, explicit limits on those states’ abilities to pass any laws disenfranchising citizens except for in narrowly defined circumstances. 

The Virginia Readmission Act, like other Readmission Acts, expressly prohibits Virginia from amending its Constitution to “deprive any citizen or class of citizens . . . of the right to vote . . . except as punishment for such crimes as are now felonies at common law.” 

In short, the Readmission Act plainly states that Virginia may not restrict any citizens’ right to vote unless the person had been convicted of a crime that was a felony at common law in 1870. 

The meaning of “felonies at common law” in 1870

Common law is the English body of law that the United States legal system was modeled after. Under common law, only a handful of specific crimes were considered felonies: murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny. These were a well-defined and widely understood set of crimes, as distinct from the term “felony” today, which refers to any crimes that a statute designates as a felony. Because the Readmission Act explicitly states that Virginia may only deprive a citizen of their right to vote if they have been convicted of one of those specified common law felonies, it may not deprive anyone else of their right to vote for convictions of any other crimes. 

Virginia’s illegal disenfranchisement 

Despite clear language in the Virginia Readmission Act, Virginia amended its constitution in 1876 to include disenfranchisement for some crimes that were not felonies at common law, and then enacted a broad prohibition on voting for anyone with any felony conviction just 30 years later in 1902. Lawmakers’ purpose behind this change was clear: they wanted to strip Black Virginians of their sacred right to vote. This prohibition from 1902 remains intact today (in Article II, Section 1) despite subsequent changes to Virginia’s Constitution — and remains as unlawful today as it was when it passed. 

Because Virginia’s Constitution permanently disenfranchises people convicted of any felony, that provision disenfranchises people convicted of numerous crimes that are felonies today, but were not felonies at common law. 

For example, drug offenses were not crimes at common law, much less felonies. But this is simply one example of many. Indeed, Virginia’s criminal code classifies as felonies a multitude of crimes that did not even exist in the 1870s. 

As a result, many Virginians are unlawfully disenfranchised — especially Black Virginians. As of 2022, over 5% of Virginians are disenfranchised due to felony convictions. The impact is even heavier on Black Virginians, who are disenfranchised at over twice the average rate, at 12%. 

Congress passed the Readmission Acts explicitly in response to the attempt by formerly Confederate states to intentionally use criminal law to disenfranchise Black voters. And Virginia’s subsequent changes to its Constitution were exactly the conduct that Congress prohibited: the 1902 changes to Virginia’s Constitution amendments were passed by a Jim-Crow era legislature with the goal of stopping Black voters from exercising their rights — exactly what the federal Virginia Readmission Act prohibited. 

Today, over 100 years later, Virginia continues to disenfranchise voters, who are disproportionately Black, in clear violation of federal law. In an effort to right this historic wrong, we filed a lawsuit in federal court challenging the Virginia Constitution’s broad felony disenfranchisement provision.