Opinion: Virginia needs a constitutional cure for disenfranchisement

In Virginia, my home state, a felony conviction results in an automatic loss of voting rights. Previous Virginia governors used executive actions to automatically restore the right to vote to thousands of formerly convicted citizens. Rolling back years of progress, Gov. Glenn Youngkin recently reversed these advancements, now requiring convicted individuals to directly petition the governor to regain this right.

On Dec. 13, a judge rejected the Virginia NAACP’s attempt to access a database the governor uses to reinstate these voting rights. The ongoing lack of transparency highlights a deeper problem with the governor’s approach: a discretionary and opaque restoration process that is susceptible to discrimination. But the gubernatorial strategy is not novel, it is part of a statewide criminal disenfranchisement strategy rooted in the Jim Crow era. There’s an urgent need for a constitutional amendment in the commonwealth to automatically restore voting rights of formerly incarcerated people.

The governor’s restoration process is shrouded in secrecy and susceptible to discrimination. The “restoration of rights” application requests details about incarceration, fines, fees and restitution, but omits criteria used by the governor in his decision-making. An individual’s ability to vote could be capriciously denied with no justification, depending solely on Youngkin’s say-so.

This voting restoration process in Virginia is opaque and potentially discriminatory against people of color who have been historically disproportionately impacted by the Virginia carceral system and overrepresented in the state’s penal system. Restricting the governor’s considerations and data regarding petitions raises concerns about the fairness and equity of the process. Without clear metrics, public accountability for the governor’s decisions remains elusive.

Perhaps the governor’s office does maintain clear internal standards. Secretary of the Commonwealth Kay James, responding to the NAACP’s inquiries, stated that Youngkin “is less likely to quickly restore the voting rights of anyone who used a firearm in the commission of a crime” and will “generally speaking, but not always” restore the rights of nonviolent offenders. If such practices exist, why not make the guidelines public and accessible?

The existing process, flawed by its “opt-in” character, forces formerly incarcerated individuals to submit individual petitions in order to have their civil rights restored. The Youngkin administration then, seemingly arbitrarily, reviews each petition independently. Even if one is comfortable with the governor exercising this significant amount of discretion, this approach is unlikely to be the most efficient nor effective solution. Instead, we need a flat rule of automatic restoration.

Virginia must pass a constitutional amendment that automatically ensures formerly incarcerated people have the right to vote upon release from incarceration. The Virginia House of Delegates and Senate have previously considered similar legislation; it was killed by the Republican-controlled House.

But this issue should transcend partisanship. We need a provision in our constitutional framework that safeguards the fates of our fellow citizens, ensuring their futures are not left to the whims of whoever happens to be occupying the governor’s mansion.

I am frustrated that Virginia stands alone in the severity of this policy. But this issue is not restricted to the commonwealth. Twenty-five states have obstacles to restoration of voting rights in some form, whether they be waiting periods, petition systems or parole requirements. These disenfranchisement strategies are part of a greater national voter suppression crisis. Implementing a constitutional amendment in Virginia can ensure our restoration process is transparent and easy to model. In doing so, we can set an example for other states interested in improving voting access.

Virginia has a dark legacy of voter suppression that has evolved over time, with felon disenfranchisement emerging as a modern embodiment of this injustice. A constitutional amendment would provide a textual shield against these unjust disparate voting policies and ensure that who is able to vote is not simply left to the shifting opinions of a governor.

Sophia Houdaigui of McLean is a law student at the University of Chicago Law School.