The right to vote may be foundational to American democracy, but Virginia strips hundreds of thousands of its residents of this right.

Take Tati King — the 52-year-old was disenfranchised for a drug possession felony conviction in Fairfax County. He completed an 11-month incarceration period and a term of probation. He owes the state no fines. But he still can’t vote.

Mr. King has tried to regain the right to vote, applying for his voting rights to be restored. So has Melvin Lewis Wingate, who was convicted of uttering in the mid-1990s. Now a minister, he has not been able to vote in five presidential elections, six midterm elections and five Virginia gubernatorial elections. Toni Heath Johnson, a 60-year-old Virginia resident disenfranchised in 2021, has also applied for her right to vote to be restored — to no avail.

These individuals, along with nonprofit organization Bridging the Gap, have sued state leaders in King v. Youngkin, taking issue with Article II, Section I of the Virginia Constitution. This provision automatically disenfranchises Virginians convicted of a felony but allows the governor to restore their right to vote.

Defendants were expected to respond this week. Then, litigants must wait to see how the district court proceeds, with appeals possibly to follow.

Litigation regarding blanket bans for felon voting rights recently yielded success for citizens seeking rights restoration. Earlier this month, a federal court of appeals found Mississippi’s lifetime ban on voting for those convicted of felonies to be unconstitutionally cruel and unusual punishment.

But litigation is not the only path forward for those concerned about the state constitution’s felon disenfranchisement/voting rights restoration provision.

Virginia’s current constitution, effective in 1971, replaced a post-Reconstruction constitution steeped in white supremacy. The 1902 constitution championed disenfranchisement and segregation, seeking to return the commonwealth to how things had been before Reconstruction. At the 1901-1902 constitutional convention, statements like “the horror of negro suffrage to the people of Virginia has brought shame upon the white people of Virginia” made the drafters’ intentions clear. Fortunately, after the U.S. Supreme Court ended Virginia’s practice of Massive Resistance — the practice by which schools were closed to prevent integration after Brown v. Board — Gov. Mills Godwin, in 1968, commissioned a team of distinguished Virginians to make a constitution that supported a more inclusive political community.

In their report, the Commission on Constitutional Revision recognized “needless obstacles ought not to be placed in the path of Virginians seeking to have a voice in the government of their commonwealth.” Thus, they removed the previous constitution’s poll tax and literacy test requirements and altered an earlier criminal disenfranchisement provision, so that it would apply only to those convicted of felonies, as opposed to those convicted of any general crime.

At the time, every state except Maine either had a constitutional or statutory provision that prevented individuals convicted of a crime from voting. Still, the Virginia Constitution’s drafters implicitly recognized litigation could lead to changes for felon disenfranchisement provisions. They noted, for example, a challenge in federal court to the constitutionality of a state bar to voting by felons had been unsuccessful, but the Supreme Court of California had already found that the federal Equal Protection Clause limits a state’s ability to disenfranchise those with a criminal conviction.

State approaches to disenfranchisement provisions have indeed shifted. Now, Virginia is the only state where those convicted of felonies must apply individually to the governor for their voting rights to be restored. And the language at issue in King has long been seen as the Virginia Constitution’s failure, despite its drafters’ good intentions, to expunge completely the legacy of yesteryear’s white supremacist constitution.

Fortunately, the drafters recognized a state constitution is not static. They removed voting bars found in the earlier constitution and left room for future generations to achieve further change through constitutional amendments.

Virginians who care about voting rights can make their voices heard, regardless of political affiliation and no matter King’s outcome. To amend the constitution, Virginians can put forward language for the General Assembly to greenlight, which could then be approved in a referendum by statewide popular vote. There have been recent amendment efforts regarding the disenfranchisement/rights restoration provision. In February 2021, the House and Senate agreed to an amendment to Article II, Section 1, striking the language that voting rights restoration requires action by the governor. Representatives of a politically diverse coalition — the American Conservative Union, Americans for Prosperity Virginia, the ACLU, and others — spoke in favor. But a General Assembly subcommittee defeated it on a 5-4 party line vote.

On the heels of the recent Mississippi decision, let King be a prod to action. Just over 50 years ago, a group of Virginians overhauled the state’s constitution, broadening access to the ballot. Through constitutional change, a new generation can further redefine Virginia’s political community.

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