CONTENT WARNING: Materials in the Library of Virginia’s collections contain historical terms, phrases, and images that are offensive to modern readers. These include demeaning and dehumanizing references to race, ethnicity, and nationality; enslaved or free status; physical and mental ability; religion; sex; and sexual orientation and gender identity.
Throughout Virginia’s history and various iterations of the state constitution, there has consistently been language to limit the voting rights of people who have been accused of crimes. Early versions, like the 1830 constitution, limited disenfranchisement to “infamous crimes,” while later charters targeted treason and corruption. However, as scholar Michelle Alexander points out, “what gets defined as crime, and who gets surveilled and punished, generally has more to do with the politics of race and class than the harm that any particular behavior or activity causes.”1 It is vital to pay close attention to race, class, and ableism* when thinking of people who have been accused of crimes.2 For example, in a past Uncommonwealth blog post, Local Records Archivist Callie Freed writes:
According to Helen A. Gibson’s article Felons and the Right to Vote in Virginia: a Historical Overview, the phrase “infamous offence” became the state’s first explicit felon disenfranchisement measure. Essentially, these registers became a public record of who lost the right to vote, as well as a means to justify racial profiling and discrimination. In the debate over Virginia’s constitution in 1829, Governor William Branch Giles pointed to the large number of free African Americans in the state penitentiary as proof of their proclivity for crime. Governor Giles, of course, ignored the fact that Black Virginians convicted of a felony served minimum sentences more than twice as long as those of whites similarly convicted.
As renowned scholar Dr. Angela Davis aptly notes, “particularly in the United States, race has always played a central role in constructing presumptions of criminality…the new Black Codes proscribed a range of actions–such as vagrancy, absence from work, breach of job contracts, the possession of firearms, and insulting gestures or acts–that were criminalized only when the person charged was black.”3 Virginia’s “black codes” did just that; a number of laws restricted and limited the rights of Black and non-white Virginians, which in turn gave white supremacy frequent, insidious opportunities to label Black and non-white Virginians as “criminals” or “felons,” and thus deny them, among other rights, the right to vote.4
Shortly after the Civil War, the General Assembly passed the Vagrancy Act, also known as the Act Providing for the Punishment of Vagrants. During this time, many Black Americans, recently freed from their enslavement, were searching for work and displaced family members. This law forced “employment”–mandatory work for no compensation–for up to three months, for any person “who appeared to be unemployed or homeless.”5
Historian Brent Tarter, in his new publication, Virginians And Their Histories, writes that “this law was aimed at freed people who did not have permanent employment or had left their former owners to search for family members. It empowered law enforcement officials to jail people who did not have jobs or refused to work at prevailing wages, which employers deliberately set at very low rates.”6 The Vagrancy Act remained in force until 1904, when it was replaced by a new law known as An Act in Relation to Vagrancy, which made vagrancy a misdemeanor punishable by a bond payment and good conduct for one year. Despite amendments to the law, it retained a provision that forced some “vagrants” wear a ball and chain.7
In Virginia, those identified as convicts “had no meaningful legal rights at this time and no effective redress. They were understood, quite literally, to be slaves of the state.”8 They certainly had no voting power in the eyes of the Commonwealth. The Virginia Supreme Court decision in 1871, Ruffin v. Commonwealth, solidified this by stating, “he has, as a consequence of his crime, not only forfeited his liberty, but all his personal rights except those which the law in its humanity accords to him. He is for the time being a slave of the State.”9
With this context in mind, Virginia’s 1902 Constitution, which severely restricted suffrage among Black and white men, denied anyone who had been convicted of a crime the right to register and vote, specifically disenfranchising any person convicted of “treason, or of any felony, bribery, petit larceny, obtaining money or property under false pretences, embezzlement, forgery, or perjury; persons who…have fought a duel with a deadly weapon, or sent or accepted a challenge to fight such duel, either within or without this State, or knowingly conveyed a challenge, or aided or assisted in any way in the fighting of such duel.”
As Virginia moved into the 20th century, authorities continued to enforce racial segregation throughout the state. The harsh realities of Jim Crow laws and the Racial Integrity Act of 1924 could and would deem non-white Virginians and others as “criminals;” their rights, including their right to vote, were either limited or taken completely. As Michelle Alexander points out, “while some of these codes were intended to establish systems of peonage resembling slavery, others foreshadowed Jim Crow laws by prohibiting, among other things, interracial seating in the first-class sections of railroad cars and by segregating schools.”10
For example, in 1926 the Massenburg Bill was introduced in the House of Delegates, requiring the separation of white and non-white folks in public halls, theaters, opera houses, motion picture shows, and places of public entertainment and public assemblages.11 Although the punishment wasn’t necessarily jail time, “any such person, persons, firms, institutions or corporations that shall fail, refuse or neglect to comply with the provisions of this section shall be guilty of a misdemeanor and upon conviction thereof shall be fined not less than one hundred dollars nor more than five hundred dollars for each offense. (1926, pp. 945, 946.)”12 This racial integrity law is just one example of what could be considered a crime in the eyes of Virginia law in the 1900s, affecting all non-white people across the state.
The current Virginia constitution, adopted in 1972, clarified that “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.” Governors Bob McDonnell and Terry McAuliffe both worked to restore voting rights. During McDonnell’s term, he restored voting rights to more people incarcerated (8,013) than any of his predecessors and did so on an individual basis for nonviolent people incarcerated.13 At the beginning of the 2013 General Assembly session, McDonnell unsuccessfully sought legislation that would have changed the state constitution to allow for automatic restoration of rights for nonviolent felons* who had completed their terms.14
In 2014, Virginia Governor Terry McAuliffe officially removed application requirements for people who had been incarcerated for non-violent crimes, and dropped the requirement that they pay court costs or restitution before gaining back their right to vote. McAuliffe additionally reduced the waiting period for those with more serious offenses to have their rights automatically restored. It is important to note that Virginia is one of nineteen states in which people who have been convicted of a felony cannot automatically vote when released from prison, although their vote can potentially be restored after prison, parole, and probation. In eighteen other states, people who have been formerly incarcerated can vote after they are released from prison and in Vermont and Maine, people can vote from prison.15
On 22 April 2016, McAuliffe signed an executive order which restored voting rights to more than 200,000 people convicted of a felony in Virginia. This was initially overturned by the Supreme Court of Virginia as a violation of the state constitution, declaring that the governor did not have the authority to grant blanket pardons and restoration of rights. In response, on 22 August 2016, McAuliffe restored voting rights to almost 13,000 people convicted of a felony individually, using an autopen. By the end of his term, McAuliffe had restored voting rights for more released people convicted of a felony than any other governor in U.S. history. In 2017, the Virginia Senate passed a constitutional amendment (SJ 223), introduced by Senate Majority Leader Thomas K. “Tommy” Norment, to permanently disenfranchise voters who have been convicted of “violent” felonies, leaving it to the Virginia General Assembly to decide what constitutes a violent felony, but this died in the Virginia House of Delegates Privileges and Elections committee.16
Today, as journalist Isabel Wilkerson reports, “The United States has the highest incarceration rate in the world, higher than that of Russia and China, with a rate of 655 per 100,000. The United States imprisons more people, 2.2 million, than any other nation.” It is also key to emphasize the current criminalization of immigration in the United States. Immigration violations that had been deemed minor infractions before are now considered serious “crimes” and can lead to the incarceration and deportation of immigrants of all ages. All of these statistics are important to keep in mind when thinking of those who cannot vote currently, under both the Virginia state constitution and the U.S. Constitution, particularly when thinking of those who have been incarcerated.
Check out the rest of this series by clicking on the We Demand: Unfinished Business button below.
- Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York City, New York, The New Press, 2010), xli.
- *In keeping this blog post at a reasonable length, I suggest further reading on those who are Disabled and incarcerated. One such read is an essay from Disability Visibility: First-Person Stories from the Twenty-First Century, edited by Alice Wong,“Disability Solidarity: Completing the “Vision for Black Lives” by the Harriet Tubman Collective. This essay has specific statistics on the violence and criminalization experienced by Black Disabled and Deaf people and adds that, “children with disabilities enter the juvenile legal system at five to six times the rate of youth who do not have disabilities, with 65 percent of boys and 75 percent of girls in juvenile detention having at least one mental illness, and up to 85 percent of children in juvenile detention having at least one disability; and 55 percent of male state prisoners and 73 percent of female state prisoners have a mental health condition, with just 1 in 3 state prisoners and 1 in 6 jail inmates receiving treatment for their illness since being admitted. Within each of the above-provided statistics, Black people and other negatively racialized individuals are grossly, disproportionately represented. Indeed, ableist social norms often criminalize the existence of disabilities such as schizophrenia, autism, oppositional-defiant disorders, and developmental and intellectual disabilities. To be sure, Black people with these and other disabilities are particularly vulnerable to unjust encounters with school officials, police officers, and the criminal legal system.” Alice Wong, Disability Visibility: First-Person Stories from the Twenty-First Century (New York City, New York: Knopf Doubleday Publishing Group, 2020), 237.
- Angela Y. Davis, Are Prisons Obsolete? (New York City, New York: Seven Stories Press, 2003), 28.
- For example, in the 1860s, a state law made it a crime to hold a school that Black Virginians, whether free or enslaved, attended. Peter Wallenstein, Cradle of America: A History of Virginia (Lawrence, Kansas: The University Press of Kansas, 2007), 222.
- Brent Tarter, Virginians And Their Histories (Charlottesville, Virginia; University of Virginia Press, 2020), 277.
- Brent Tarter, “Vagrancy Act of 1866.” Encyclopedia Virginia. Virginia Humanities, 25 Aug. 2015. Web. 19 Oct. 2020.
- Michelle Alexander, The New Jim Crow, 39.
- Ruffin v. Commonwealth, 62 Va. 790, 796 (1871).
- Michelle Alexander, The New Jim Crow, 35.
- J. Douglas Smith, Managing White Supremacy: Race, Politics, and Citizenship in Jim Crow Virginia (Chapel Hill, North Carolina: The University of North Carolina Press, 2002), 117.
- 1926 Supplement to the Virginia Code of 1924; Containing All the General Laws of 1926 With Full Annotations (Charlottesville: The Michie Company, 1926), 42–43.
- Kumar, Anita (September 26, 2010). “More Va. felons get rights restored.” The Washington Post. p. C1.
- *I am using the term felon here and below because it is relevant to the historical text. However, I urge readers to move away from the terms felon, ex-offender, and inmate; “In recent years, formerly incarcerated and convicted people have challenged the use of these labels and offered alternatives such as “returning citizen.” Michelle Alexander, The New Jim Crow, xix.