The Vote in Virginia

April 25, 2016

The views expressed are the author's own and not necessarily those of the Brennan Center for Justice.

It is hard to overstate the significance of Gov. Terry McAuliffe’s executive order restoring the right to vote to more than 200,000 people with past criminal convictions. With the stroke of a pen Friday, the governor moved to reverse 150 years of felony disenfranchisement in the Commonwealth, a racially discriminatory practice that down through the generations often was justified for the least defensible reasons.

But just because all those men and women — one in five blacks in Virginia has been disenfranchised — now have the right to vote does not ensure that they will. They first will have to register at a time when the fate of Virginia’s onerous new voter identification law is in the hands of a federal judge. If endorsed by the courts, that law surely would do what it was designed to do: create barriers to voting for people with past criminal convictions and the elderly, students, and the poor.

There also is the chance that Republican lawmakers in the state, furious that Gov. McAuliffe has just undermined their voter suppression efforts, will challenge his executive order in court, arguing that he has exceeded his constitutional authority. It’s unlikely that such a lawsuit would succeed. But it is possible that a handful of state judges in the Commonwealth would allow it to float along for a while, casting doubt on the voting rights in question.

Because the restoration of voting rights for formerly incarcerated citizens is such a relatively rare thing in America, there hasn’t been much academic research on the impact it has on voting. In other words, even though these 200,000 citizens now may vote, we have no idea how many actually will vote. It surely won’t be 200,000, or even 100,000. What little research that does exist tells us what we might have guessed: the more administrative (bureaucratic) hurdles placed before these individuals, the less likely they are to vote.

So this week, Virginia will begin to react to Gov. McAuliffe’s bold move. There will be those seeking to register the men and women who now get to participate in the democracy that governs their lives. And there will be those seeking to undermine that registration. There will be those who see in the governor’s decision the rehabilitative promise our justice system has strayed from the past few decades. And there will be those who continue to believe that people who commit crimes should never again enjoy the full rights of citizenship.

What we will not see this week, unfortunately, is a push by Republican lawmakers to attract through substantive policy this new group of Virginia voters. From the moment the governor’s decision was announced last week, Republican officials and their tribunes in the media have linked it to the Clinton campaign, assuming that the vast majority of these citizens will vote Democratic. Such an assumption, unsurprising in our current political climate, is both a self-fulfilling prophecy and a lost opportunity.

It is self-fulfilling in the sense that Republican animosity toward these men and women will likely push them to vote Democratic if they weren’t already inclined to do so. But what if the same Republicans now lamenting the creation of this new group of voters instead chose to actively campaign for its votes? What if Republican operatives began to try to register these voters the same way Democratic operatives now are doing?

The Republican reaction to Gov. McAuliffe’s move is a lost opportunity because a substantive GOP push for these votes just might work. For example, criminal justice reform especially on the state level, is every bit as much a Republican issue these days as it is a Democratic one. There surely are other, local issues that would resonate with this group of Virginians who are trying to restore their lives with the second chance they’ve earned.

Has some GOP operative somewhere in Virginia already done the cynical calculus and concluded that more white votes can be secured by opposing voting rights for formerly incarcerated citizens, especially those who are black? Can a political party long thrive by making it harder for voters to vote? In a nation wracked by mass incarceration, don’t we want to embrace ways in which we can reintroduce citizens back into the lifeblood of society? Is the restoration of voting rights not the epitome of the rehabilitative idea behind this week’s emphasis on prisoner re-entry?

Today in Virginia, there are more questions than answers as this bold experiment moves forward. And there will be bitter battles there over the next six months over the extent to which these citizens will exercise their right to vote.  But today, let’s be clear about one thing: the Commonwealth now has the chance to finally put to right its noxious history of bigotry and bias in felony disenfranchisement. And how this story plays out won’t just impact democracy in Virginia it will impact it around the rest of the country as well.