Virginia Capitol Connections Summer 2019

Felony disenfranchisement policy has disparate racial impact By Jeff South

In 1902, Virginia convened a constitutional convention with one goal in mind: to suppress the vote of newly eligible African Americans. As R.L. Gordon, a delegate to the convention, stated, “I told the people of my county before they sent me here that I intended … to disenfranchise every negro that I could disenfranchise under the Constitution of the United States, and as few white people as possible.” The convention added to the Constitution

“From the time of its original enactment through all of its iterations, Virginia’s felony disenfranchisement provision was deeply rooted in prejudice against African Americans,” Bridging the Gap says. That policy has been exacerbated by Virginia’s “threshold” for grand larceny—the dollar amount that differentiates a misdemeanor from a felony. Until last year, any theft or fraud valued at $200 or more was considered felony larceny. The threshold, which was the lowest in the U.S., has since been raised to still-modest $500. As a result, even to this day, a large proportion of Virginia’s black population has been relegated to perpetual second-class citizenship. Most states automatically restore ex-felons’ voting rights after they have served their time. But in Virginia, the governor must personally review an individual’s case and issue a “restoration of rights” order. Bob McDonnell, a Republican, started to streamline the process when he served as governor in 2010-13 by automating the rights restoration process for non-violent offenders who had fulfilled their sentences. Handling cases one by one, McDonnell restored the voting rights for about 8,000 former prisoners. His successor, Democratic Gov. Terry McAuliffe, tried to issue a blanket executive order restoring civil rights to about 206,000 people. In 2016, the Virginia Supreme Court invalidated that action. McAuliffe then processed the cases on an individual basis—and ended up granting more than 173,000 ex-convicts the right to vote. In February, Northam, also a Democrat, announced that during his first year in office, he had restored the civil rights of about 11,000 Virginians previously convicted of a felony. “I believe in second chances and making our commonwealth more open and accessible to all,” Northam said. “Virginians who have repaid their debts should be able to return to society, get a good job and participate in our democracy. McAuliffe said that “to make lasting change, Virginia must amend the state Constitution to create an automatic process for restoration of rights for all.” For the General Assembly’s 2019 session, Democratic Del. Betsy Carr of Richmond and Republican Sen. Emmett Hanger of Augusta County each introduced constitutional amendments to automatically restore the rights of felons after they have served their sentences. To take effect, such an amendment must be approved during two consecutive legislative sessions and then by voters in a statewide election. Hanger’s proposal cleared the Senate, 37-3. But it died in the House Privileges and Elections Committee—the same panel that had killed Carr’s amendment. Jeff South is an associate professor and director of undergraduate studies in the Robertson School of Media and Culture at Virginia Commonwealth University, where he joined the faculty in 1997 under the mistaken impression he’d have summers off. Before moving into academia, he was a newspaper reporter and editor for 20 years in Texas, Arizona, and Virginia. Over the years, South’s students have won more than 30 awards for political reporting and other coverage.

of Virginia racially discriminatory poll taxes and literacy requirements. Delegates also expanded the constitution’s felony disenfranchisement provisions, which previously applied to infamous crimes such as treason. Under the revised constitution, anyone convicted of low-level offenses such as petit larceny or forgery would lose their voting rights for life. State Sen. Carter Glass, the delegate who drafted the suffrage provisions, made no secret about the intended effects of the constitutional provisions. Glass said the state’s revised constitution would “not necessarily deprive a single white man of the ballot but will inevitably cut from the existing electorate four-fifths of the negro voters … That was the purpose of this convention; that will be its achievement.” “This plan will eliminate the darkey as a political factor in this State in less than five years, so that in no single county of the commonwealth will there be the least concern felt for the complete supremacy of the white race in the affairs of government,” said Glass, who went on to become a U.S. senator and treasury secretary. Fast-forward 117 years: Virginia is among a handful of states that continue to impose a lifetime voting ban on people who have committed felonies—even after they have served their prison time, completed probation, made restitution and complied with all other aspects of their sentence. That policy has a disproportionate impact on African Americans, who—because of poverty, racism and other factors—are more likely than whites to get caught up in the criminal justice system. One in five black Virginians cannot vote due to a felony conviction, officials estimate. Over the past decade, numerous officials—both Republicans and Democrats—have sought to address the issue. In June, Gov. Ralph Northam appointed a task force to identify laws that perpetuate racial inequities; the felony disenfranchisement provision is a disturbing example. Many advocates for criminal justice reform say the ultimate solution would be to amend the state constitution—as Florida voters did last year—to automatically restore the civil rights of defendants who have completed their sentences. “The right to vote is one of the most important rights in American democracy, and felony disenfranchisement laws have long been used as a tool to restrict the right to vote from African Americans,” says a group called Bridging the Gap. “FelonydisenfranchisementinVirginiahasalwaysbeeninextricably connected to the state’s long history of efforts to discriminate against African Americans and exclude them from the political process.” When theVirginia State Convention of 1829-1830 first adopted the felony disenfranchisement provision, only whites could vote. However, delegates were clearly worried by the growing number of free African Americans in the commonwealth—then approximately 44,000—and by the fact that they could vote in states such as North Carolina. The delegates knew that blacks were incarcerated at rates far higher than whites. Racism was a motivating factor in instituting the felony disenfranchisement policy and then expanding it in the Jim Crow years after the Civil War.

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V irginia C apitol C onnections , S ummer 2019

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