Commentary: Troubled History of Voter Disenfranchisement

Virginia has a troubling history of disenfranchising voters based on criminal convictions and failing to restore those rights when disenfranchised citizens have completed their sentences. In the recently completed 2017 session of the General Assembly, Republican Sen. Tommy Norment introduced a constitutional amendment (SJ 223) that would have allowed for the restoration of voting rights for violent felons (which includes burglary and certain drug offenses) after release from prison, a five-year waiting period, and the payment of all fines, fees, and restitution. Democratic opposition argued that these unpaid monies constituted a modern version of the poll tax. Though poll tax laws are no longer on the books, Virginia has one of the nation's most extreme policies restricting the voting rights of criminal offenders and one of the most racially disproportionate, with more than one in five black adults barred from voting due to a criminal conviction.

As Sen. Norment presented this amendment on the floor of the Senate, an interesting debate broke out in the chamber recalling the 1901-02 Virginia Constitution. GOP lawmakers argued, accurately, that the 1901-02 Constitution had the same felony disenfranchisement requirements that existed before the Civil War. What escaped Republican notice was that in 1876 petit larceny — minor property theft — was added to the constitution as a disenfranchising offense. The purpose was to entrap landless and impoverished African Americans who were caught stealing small items such as farm animals, including chickens. The 1876 amendment mirrored the notorious “pig laws” passed in Mississippi that same year. Virginia justified its new law under the generally held concept that “chicken stealers were so poor that they could not support their families, lacked moral character, and as they lacked economic citizenship they were underserving of political citizenship.” Though felony disenfranchisement had been the tradition, petit larceny was slipped into the constitution in 1876 as a means to specifically disenfranchise African Americans. That some whites would be caught up in this disenfranchisement was an acceptable tradeoff, as African Americans were already in prison at five times the number of whites. Anyway, whites with criminal convictions could apply for gubernatorial restorations of voting rights; governors generally refused such restorations for African American applicants.

The Republican argument had been that felony disenfranchisement in the 1838 Constitution, which predated the Civil War, proved that it was a race-neutral concept because this constitutional provision was included when only whites were allowed to vote. However, the clear attempt at disenfranchisement by petit larceny made clear that their assertion was inadvertently disingenuous. In the 1889 gubernatorial race, lists of police records were sent to precinct polling officials to be used in excluding black voters.

The following is excerpted from the Washington Bee, a newspaper at the time (1889):

[I]t is enlightening that in the 3rd Precinct over 600 blacks waited in a “blacks only” voting line and 900 blacks waited in line in the 4th Precinct. Voter intimidation ensued as men who were self-identified Republicans and blacks were met with challenges such as “I believe you have been convicted of stealing.” Even when denied, the charge led to being taken out of line and arrested for “impudence” if an argument ensued. Black voters were queried on the constitution for 20-25 minutes to slow the lines. Lists of black voter police records were on hand to deny voting. They were mailed to registrars. Voters were delayed for hours as they inched forward in the lines and many could no longer wait and went home.

The “whites only” line, it was reported, moved smoothly.

Virginia has a long pattern of using criminal conviction as a means of disenfranchising African Americans. Petit larceny was in our constitution in 1876, continued in the 1902 constitution, until removed in the 1971 version. It was added to exclude African Americans from voting. There are undoubtedly Virginians alive today who had lost the right to vote because of a conviction for petit larceny. Our prison system still has five times as many African Americans incarcerated as whites. We do not need a constitutional amendment that complicates who can and cannot vote in our commonwealth. The rule should be simple: regardless of your offense, if you are in prison you cannot vote; if you are out of prison you are entitled to vote. This standard would be consistent with the majority of other states. Virginia’s history with voting rights is simply too troubling to put forth a new constitutional amendment that will continue to disadvantage African Americans.

Special thanks to Professor Pippa Holloway of Middle Tennessee State University, and Helen Gibson of the Weldon Cooper Center for Public Service whose source material was used for this article.