Virginia Voting Rights Restoration Scheme Challenge

Hawkins v. Youngkin

Filed: April 6, 2023

Lawsuit filed on behalf of an individual who is disenfranchised due to a former felony conviction and a nonprofit organization that supports formerly incarcerated individuals against Virginia Gov. Glenn Youngkin (R) and Secretary of the Commonwealth Kay Cole James (R) challenging Virginia’s voting rights restoration policy for individuals with felony convictions. Specifically, the plaintiffs challenge the defendants’ termination of the commonwealth’s previous policy in which voting rights were automatically restored to Virginians with prior felony convictions in a non-discretionary manner. Under the commonwealth’s new scheme, voting rights are restored to Virginians with former felony convictions by the governor on a discretionary, case-by-case basis as opposed to automatically upon release from incarceration. According to the plaintiffs, over the past decade, three successive Virginia governors progressively restored voting rights to individuals with prior felony convictions “based on specific, objective, and neutral criteria such as sentence completion or release from incarceration” in order to “create a uniformly administered, non-discretionary restoration system.”

Under the Youngkin administration’s new scheme repealing the previous restoration policy, the plaintiffs allege that “Virginians with felony convictions are once again subject to an arbitrary restoration scheme, under which the Governor grants or denies applications for voting rights restoration in his unfettered discretion, without objective rules or criteria.” The plaintiffs assert that in making voting rights restoration contingent on discretionary and arbitrary “decision-making” by an elected official upon whom no “definite time limits” to decide on an individual’s voting rights restoration are imposed, the defendants are violating the First Amendment of the U.S. Constitution.

The plaintiffs also argue that the lack of objective criteria for voting rights restoration “opens the door to political or viewpoint discrimination” based on an applicant’s political views, wealth, race, religion and other demographic factors. The plaintiffs underscore the fact that as of October 2022, approximately 211,344 Virginians — constituting over 5% of the commonwealth’s voting-age population — remain disenfranchised “even after completing their full sentences including parole and probation.” The plaintiffs ask the court to prohibit the defendants from enforcing the allegedly arbitrary, discretionary voting rights restoration scheme and to replace it with a non-arbitrary, neutral alternative.

On Oct. 6, the court dismissed the nonprofit organization as a plaintiff, but allowed the disenfranchised individual to remain as a plaintiff in the case.

RESULT: On Aug. 7, 2024, the district court ruled in favor of the defendants and dismissed the case. The governor will continue to restore voting rights to Virginians with prior felony convictions on a discretionary, case-by-case basis. An appeal of the district court’s decision is ongoing in the 4th U.S. Circuit Court of Appeals.