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Voting Rights Restoration Efforts in Virginia

A summary of current felony disenfranchisement policies and the history of advocacy in Virginia.

Last Updated: March 16, 2021
Published: April 20, 2018

On March 16, 2021, Governor Ralph Northam took exec­ut­ive action to restore the right to vote to all Virgini­ans who are not currently incar­cer­ated, and he has stated his inten­tion of continu­ing this prac­tice going forward for all Virgini­ans upon their release from prison. This exec­ut­ive action builds on past efforts from prior gubernat­orial admin­is­tra­tions to restore voting rights for Virgini­ans after they had completed proba­tion or parole. Virginia is one of three states whose consti­tu­tion other­wise perman­ently disen­fran­chises all citizens with past felony convic­tions, but grants the state’s governor the author­ity to restore voting rights. Northam’s action follows the General Assembly’s passage of a consti­tu­tional amend­ment that would cement the auto­matic restor­a­tion of voting rights upon release from prison. In order to take effect, that amend­ment must be passed again after a new legis­lature is seated follow­ing the 2021 elec­tions, and then approved by a major­ity of Virginia voters.

Recent Devel­op­ments

Virgini­a’s disen­fran­chise­ment provi­sion dates to the nine­teenth century, and advoc­ates have worked for years, urging Virginia governors to exer­cise their exec­ut­ive author­ity to restore voting rights. The Bren­nan Center was among those who urged Governors Mark Warner (2005), Tim Kaine (2009), and Robert McDon­nell (2010) to do so. In 2021, after years of progress through exec­ut­ive action, the legis­lature finally began the process of amend­ing Virgini­a’s consti­tu­tion to elim­in­ate perman­ent disen­fran­chise­ment.

In May 2013, rights restor­a­tion gained momentum when then-Gov. McDon­nell ended Virgini­a’s policy of perman­ently disen­fran­chising all citizens with felony convic­tions. His action auto­mated rights restor­a­tion for people complet­ing sentences (includ­ing payment of any fines, fees, and resti­tu­tion) for convic­tions clas­si­fied as non-viol­ent and elim­in­ated their two-year wait­ing period, though it required that each person receive an indi­vidu­al­ized rights restor­a­tion certi­fic­ate before regis­ter­ing to vote.

In April 2014, Gov. Terry McAul­iffe announced that he would further stream­line the restor­a­tion process. The policy change broadened the category of people who auto­mat­ic­ally received their right to vote upon the comple­tion of their sentence, and shortened the rights restor­a­tion wait­ing period for rehab­il­it­ated viol­ent offend­ers to apply from five years to three.

In June 2015, Gov. McAul­iffe removed the require­ment that citizens fully pay court costs and fees to have their voting rights restored.

In April 2016, Gov. McAul­iffe issued an exec­ut­ive order restor­ing voting rights to Virgini­ans with felony convic­tions who, as of that date, had completed the terms of their incar­cer­a­tion and any period of super­vised release (proba­tion or parole). He issued similar orders in May and June.  These orders were chal­lenged in court, and in July 2016, the Virginia Supreme Court ruled in Howell v. McAul­iffe that they viol­ated the state consti­tu­tion, which required the governor to make clem­ency determ­in­a­tions on a case-by-case basis.

In August 2016, Gov. McAul­iffe announced that his office would issue restor­a­tion orders on an indi­vidual basis to Virgini­ans with completed sentences, start­ing with the approx­im­ately 13,000 citizens who had their voter regis­tra­tions cancelled in the wake of the Howell decision. The governor also announced that, going forward, the Secret­ary of the Common­wealth would identify indi­vidu­als with completed sentences, start­ing with indi­vidu­als who have been released from super­vi­sion the longest. The Secret­ary would then recom­mend indi­vidu­als for rights restor­a­tion on a rolling basis to the Governor for his final approval. Indi­vidu­als may also receive an exped­ited restor­a­tion order by apply­ing directly to the Secret­ary’s Office online or by mail. Accord­ing to the announce­ment, the Secret­ary will announce citizens that received an indi­vidu­al­ized restor­a­tion order on a monthly basis.

In March 2021, the General Assembly approved a consti­tu­tional amend­ment to provide for the auto­matic restor­a­tion of voting rights upon release from prison. The General Assembly must re-approve this consti­tu­tional amend­ment in the next legis­lat­ive session before it can be sent to the voters for rati­fic­a­tion. Subsequently, Gov. Northam took exec­ut­ive action to restore the right to vote to all Virgini­ans on proba­tion or parole, mirror­ing the consti­tu­tional amend­ment, and he has stated his inten­tion of continu­ing this prac­tice going forward for all Virgini­ans upon their release from prison.

Mater­i­als on 2016 Exec­ut­ive Orders and Howell v. McAul­iffe Case

Bren­nan Center Cover­age

Press

Bren­nan Center Public­a­tions

  • Restor­ing the Right to Vote, Erika Wood (2009)
    • The Bren­nan Center’s policy proposal for restor­ing voting rights for citizens with past crim­inal convic­tions.
  • My First Vote (2009)
    • Testi­mo­ni­als of indi­vidu­als who regained their voting rights after being disen­fran­chised because of past crim­inal convic­tions.
  • De Facto Disen­fran­chise­ment, Erika Wood & Rachel Bloom (2008)
    • A report on how complex laws, poorly informed offi­cials, and misin­form­a­tion lead to the de facto disen­fran­chise­ment of citizens with past crim­inal convic­tions who are eligible to vote.
  • Racism & Felony Disen­fran­chise­ment: An Inter­twined History, Erin Kelley (2017)
    • A piece examin­ing the histor­ical roots of crim­inal disen­fran­chise­ment laws that today strip voting rights from millions of U.S. citizens.

For more inform­a­tion about the Bren­nan Center’s work on Restor­ing Voting Rights in Virginia, please contact Derek Paul­hus, at paul­hus­d@bren­nan.law.nyu.edu.