Virginia Topples a Relic of Colonial-Era Disenfranchisement

Last week, Virginia Governor Terry McAuliffe reinstated the right to vote for 200,000 residents of Virginia who had been disenfranchised as a result of a felony conviction.

The significance of this turnaround cannot be overstated. Virginia was one of only four states—along with Florida, Iowa, and Kentucky—to permanently disenfranchise anyone who had ever been convicted of a felony. In other words, an 18-year-old convicted of first-time felony drug possession, who completed a treatment program, would be prohibited from voting for the rest of his life unless he secured a pardon from the governor—until recently, an exceedingly rare occurance.

Governor McAuliffe’s decision sheds light on America’s draconian disenfranchisement policy. An estimated 5.8 million Americans are barred from voting in 48 states and the District of Columbia. Only a quarter of this group is currently incarcerated. The other three-quarters are living under probation or parole supervision, or have served their sentences to completion.

Disenfranchisement policies are a colonial relic dating back to America’s earliest days. The United States was founded as an experiment in democracy, but the experiment wasn’t open to everyone. Only white, male property holders could vote. Women, African Americans, illiterates, the poor, and those with felony convictions were barred from the voting booth. We have done away with the voting ban for all of these groups but one: felony disenfranchisement is one of the most glaring remaining stains on our democracy.

Disenfranchisement policies have always hit African Americans the hardest. After the Civil War, as states implemented poll taxes and literacy requirements, some southern states tailored their disenfranchisement laws to explicitly exclude black male voters. They did so by proscribing the right to vote for certain felonies but not others. For instance, in Alabama and South Carolina, a man convicted of beating his wife would lose the right to vote, while a man convicted of killing his wife would not—a response to the perceived racial dynamics of these crimes at the time.

At the 1902 constitutional convention in Virginia, delegates adopted an array of such measures. Carter Glass, a key author of the new document, boasted that the changes would “eliminate the darkey as a political factor in this state” and ensure “the complete supremacy of the white race in the affairs of government.”

We can debate whether disenfranchisement policies today are specifically intended to be racist, but there is no question that their impact is. The policies and practices of the criminal justice system translate into voting prohibitions for one of every thirteen African Americans.

As is true of our criminal justice system broadly—including the use of the death penalty and other extreme punishments—U.S. policies disenfranchising citizens are way out of line with those of other industrialized nations. No comparable country disenfranchises citizens after they have been incarcerated, and many nations allow voting by all, including those in prison. Indeed, constitutional courts in Canada, Israel, and South Africa have upheld the right to vote in prison, as has the European Court of Human Rights.

Why let people with felony convictions vote? In 1996, the Israeli Supreme Court decided to allow Yigal Amir, who assassinated Prime Minister Yitzhak Rabin, to continue to vote. While the court condemned the depraved nature and gravity of his crime, it declared that Israelis must separate their “contempt for his act” from “respect for his right” as a citizen.

Governor McAuliffe said his decision was guided by moral concerns, and there is no evidence that partisan politics played a role. That hasn’t stopped critics from arguing that restoring the right to vote for people with past felony convictions is merely a tactic to win more Democratic votes in an election year.

But that critique is misguided and disturbing. Anyone who objects to granting voting rights to people with past convictions is certainly entitled to raise a principled argument against doing so. But to focus that argument on partisan considerations is as unseemly as it would have been if opponents of women’s suffrage a century ago had calculated how women might use this right.

It is important to debate the nature of democracy as a nation, but we should do so with careful attention to how our history informs—and sometimes conflicts with—our 21st century values.