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The Vote in Virginia

It is hard to overstate the significance of the Virginia governor restoring the right to vote to more than 200,000 people with past criminal convictions. But just because these citizens now have the right to vote does not ensure that they will.

Published: April 25, 2016

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.  

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