Today the Virginia Supreme Court heard the GOP’s challenge to Gov. Terry McAuliffe’s May 2016 Executive Order, which restored voting rights to an estimated 206,000 Virginians who have completed their sentence for any felony convictions. The legal arguments are lengthy on both sides— if you wish to read them yourself, the Brennan Center for Justice has compiled Virginia House Speaker Bill Howell’s petition, the Virginia Attorney General’s response, and several amicus briefs. UVA Law Professor A.E. Dick Howard, who led the commission which drafted Virginia’s current state constitution, filed a compelling explanation why the Governor’s executive order is completely consistent with the intent of the state constitution’s drafters.
While the outcome of Howell v. McAuliffe is not yet known, the political message behind the GOP’s petition is uncomfortably clear: “felony disenfranchisement” is a Republican code word for “voter suppression.” To make matters worse, the Virginia GOP added an unnecessary dose of racism to this case. Even though none of the GOP’s legal arguments touched on questions of racial discrimination, Speaker Howell and Virginia Senate Majority Leader Tommy Norment went out of their way to rebuke Gov. McAuliffe for mentioning the disparate impact of felony disenfranchisement on racial minorities in his order.
On pages 35–37, Howell and Norment insist that felony disenfranchisement laws were not a racist part of Virginia’s 1901 “Jim Crow” Constitution, which was convened “to discriminate to the very extremity of permissible action under the limitations of the Federal Constitution, with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.” Their reasoning? “The prohibition could not have been adopted for the purpose of depriving African-Americans of the right to vote because it was first added to the Constitution in 1830, when only whites could vote.”
Really?!? The current felony disenfranchisement law’s disproportionate impact on black Virginians couldn’t possibly be racist because it was written when African slavery was still legal?!? Forget “dog-whistle politics.” Speaker Howell and Senator Norment have embraced Donald Trump’s strategy of overt racism.
The #BlackLivesMatter Movement is now making a statement nationwide against “the New Jim Crow,” which Professor Michelle Alexander has described as “our current system of mass incarceration[,] [which] is a set of structural arrangements that locks a racially distinct group into a subordinate political, social, and economic position, effectively creating a second-class citizenship.” Felony disenfranchisement is a critical piece of this oppressive machinery: the tragic cycle of felony conviction and disenfranchisement makes it much more difficult for black communities to maximize their impact in local, state, and national elections. And that’s exactly what the Virginia GOP is fighting to keep intact this election year and beyond.
In the years ahead, #BlackLivesMatter will have a major impact on local elections for sheriffs and prosecutors in Virginia. Governor McAuliffe’s order will further improve how law enforcement officials are elected in Virginia. The restoration of voting rights to ex-felons is particularly important in cities like Richmond, Norfolk, Portsmouth, and Roanoke, which enacted residential segregation ordinances in the 1910s. Even though these apartheid-style ordinances were declared unconstitutional in 1917, this disturbing pattern of residential racial segregation has continued uninterrupted for more than a century in Virginia. Any metropolitan area with this history of legally-enforced geographic racial segregation (including Baltimore and St. Louis) needs to make their local political process as inclusive as possible for disadvantaged communities.
Governor McAuliffe should be celebrated for restoring voting rights to 206,000 people in our effort to overcome Virginia’s long history of racial inequality. Speaker Howell and Senator Norment, on the other hand, must be denounced. It is deeply troubling that GOP leaders in 2016 would respond to the greatest act of clemency in Virginia’s history with the most aggressive attempt to disenfranchise voters since the 1901 Jim Crow Convention. Whatever legal arguments can be made for or against Virginia’s felony disenfranchisement law, there can be no defense for Virginia’s ugly history of disenfranchising African-Americans.