Tati King and Toni Johnson both lost their right to vote after drug-related felony convictions. Even though both have served their prison sentences, the Virginia state constitution imposes a lifetime voting ban on anyone convicted of any felony unless restored by the state’s governor.
Virginia is one of only that strips the right to vote for anyone convicted of any felony even after their release. However, this practice is inconsistent with an earlier law, the Virginia Readmission Act of 1870, that readmitted the state to the U.S. after the Civil War.
That law prohibited Virginia from changing its Constitution for the purpose of depriving its citizens of the right to vote except for the most serious of felonies. At the time, the U.S. Congress worried that Virginia would seek to keep formerly enslaved Black residents from voting.
In 2023, King and Johnson filed the class action lawsuit , arguing that the state constitution violated the Virginia Readmission Act. In a January ruling, U.S. District Court Judge John Gibney agreed. The ruling was when the court declined a request to clarify or amend the decision.
“For well over a century, the Commonwealth of Virginia has disobeyed a federal law designed to protect the right of former enslaved people to vote,” Gibney wrote in his January decision.
The lawsuit included an that provided the factual historical background for the case written by Gregory Downs, professor and chair of the Department of History at 51ԹϺ Davis, and , a professor of history at Northwestern University. , a professor in the 51ԹϺ Davis School of Law, also authored a separate amicus brief based on his own expertise as a legal historian.
The ruling, said Downs, is the first step toward an overdue enforcement of the law that made it illegal to prevent the state’s Black citizens from voting.
“It just hasn't been enforced because of a lack of political will or because of some legal arguments,” said Downs, “so in that sense this is something that should have been done a long time ago.”
Jim Crow and Virginia’s readmission to the union
is a term that describes a racial hierarchy created and enforced through state laws in mainly southern states that restricted the rights of Black citizens. A number of these laws made it harder for Black citizens to vote, including poll taxes, literacy tests and laws that redefined what crimes were classified as felonies.
Downs and Masur wrote their amicus brief on the history of disfranchisement after the end of the Civil War, including states’ expansion of felonies for certain crimes. An brief is a document written by experts that provides a court factual background information on a topic related to the proceedings. Downs’ and Masur’s brief provided background on the Virginia Readmission Act.
After the Civil War, Congress debated what would be required of former Confederate states to readmit them into the United States. A number of congressmen noted that even though the protected the right to vote regardless of race, states might change what crimes might qualify for states to strip that right.
The 1870 included a demand that Virginia not change its list of felonies in order to take the vote from its Black citizens. However, Virginia and a number of states reclassified crimes, sometimes from misdemeanors to felonies, that would legally strip those convicted of the right to vote. These were crimes that were associated with poor and formerly enslaved Black people.
“There are these infamous stories of someone who loses the vote for stealing an orange,” said Downs.
It wasn’t until the in 1965 that the federal government began to dismantle state Jim Crow laws. However, many states kept laws classifying certain crimes as serious enough to take away the right to vote.
Today, varies widely from state to state.
An amicus brief to establish historical fact
Downs and Masur were asked to write the brief by the nonprofit and worked with the organization’s lawyers to explain the legal ramifications of this history. The lawsuit was brought by Protect Democracy, the Virginia ACLU and the law firm WilmerHale.
“Our role was to help provide an expert vision of that part of the past that then could support lawyers’ claims about the application of the law to the present,” said Downs.
He and Masur were contacted based on their prior amicus briefs and other work applying historical research to the present day. They wrote a for the U.S. House of Representatives Select Committee to Investigate the January 6th Attack on the United States Capitol.
They also wrote an for Students for the cases Fair Admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Carolina, both cases on affirmative action.
Both are members of the at the Brennan Center for Justice at New York University School of Law.
Restoring voting rights beyond Virginia
According to the Sentencing Project, four million Americans were due to felony disenfranchisement laws. Among African American adults, 4.5% are disenfranchised compared to 1.3% of people in other groups.
Nationwide, a number of states have also considered restoring voting rights to people convicted of various crimes. In 2020, California voters passed , which would restore voting rights to as many as 50,000 Californians on parole.
In 2018, Florida voters approved a that automatically restored voting rights to most Floridians with past convictions who had completed the terms of their sentence. However, a year later the legislature passed a law prohibiting restoring voting rights until the payment of certain legal financial obligations related to a felony conviction.
In 2024, , more than in any other U.S. state.
“To expand the number of disfranchising felonies was explicitly against the act readmitting Virginia as a state, and it had these predictable and intended disparate consequences,” said Downs.