Virginia Felony Disenfranchisement Challenge

King v. Youngkin

Filed: June 26, 2023

Lawsuit filed on behalf of Bridging The Gap In Virginia and three Virginia residents who are disenfranchised due to former felony convictions challenging the Virginia Constitution’s felony disenfranchisement provision. The challenged felony disenfranchisement provision specifically denies the right to vote to all people convicted of any felony. The plaintiffs allege that this provision violates the Virginia Readmission Act of 1870, a law that only allows Virginia to disenfranchise its citizens if they were convicted of crimes that were considered “felonies at common law” during the enactment of the law in 1870. In other words, the law only permits Virginia to deny the right to vote to those who were convicted of crimes that were considered “common law” felonies at the time of the Readmission Act’s passage in 1870; these crimes included “murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem, and larceny.”

However, in the succeeding years, Virginia amended its constitution to “strip citizens of the right to vote if they had been convicted of…any felony” — including crimes (such as drug possession) that “were not common law felonies when the Virginia Readmission Act was passed in 1870.” According to the plaintiffs, “Virginia’s disenfranchisement of citizens with felony convictions for crimes other than those that were felonies at common law in 1870 has resulted in the disproportionate disenfranchisement of Black Virginians.” The complaint notes that an “estimated 312,540 Virginians are disenfranchised” and underscores that the “rate of felony disenfranchisement among Black voting-age Virginians is more than twice as high as the rate of felony disenfranchisement among the entire United States Black voting-age population.” The plaintiffs ask the court to declare the Virginia Constitution’s felony disenfranchisement provision in violation of the Virginia Readmission Act and to block its enforcement. In an amended complaint, the plaintiffs alleged that the Virginia Constitution’s felony disenfranchisement provision also violates the 8th Amendment of the U.S. Constitution, which protects against cruel and unusual punishment.

On March 18, 2024, the court granted in part and denied the defendants’ motion to dismiss. The court specifically dismissed Bridging The Gap In Virginia as a plaintiff as well as the plaintiffs’ claims under the 8th Amendment. The court allowed one claim under the Virginia Readmission Act to move forward. On March 26, the defendants appealed part of the court’s order that denied in part their motion to dismiss the case. In particular, the defendants appealed the portion of the district court’s decision rejecting their assertion that they are immune from being sued under a concept known as sovereign immunity.

STATUS: The state defendants appealed part the district court’s decision that denied part of their motion to dismiss the case. Oral argument is scheduled for September 24, 2024 in the 4th U.S. Circuit Court of Appeals.