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At Long Last, A Wrong Righted for Disenfranchised Virginians

Gov. Terry McAuliffe gives his annual State of the Commonwealth address at the Virginia Capitol in Richmond on January 14, 2015.

In a stunning demonstration of political propriety and fairness, Virginia Gov. Terry McAuliffe (D) used his executive authority last week to restore voting rights to 210,000 convicted felons who have lawfully served their time and parole obligations in the state. It was long overdue.

Gov. McAuliffe’s order effectively negated a century of mean-spirited and misguided laws, including felon disenfranchisement, that were set in place by Reconstruction-era lawmakers intent on denying African Americans the right to vote. While the Voting Rights Act of 1965 eliminated the once-onerous poll taxes and literacy laws written into the Virginia Constitution following the freeing of slaves at the end of the Civil War, laws forbidding felons from voting in the state survived—until McAuliffe, with a sweep of his pen, changed the law.

Standing on the steps of the state capitol—not very far from the spot where President Abraham Lincoln addressed freed slaves—Gov. McAuliffe said that restoring voting rights to those who have paid for their crimes brings an end to an unfair and racist policy. The state estimates that one in five voting-age African American Virginians has lost the right to vote.

“We benefit from a more just and accountable government when we put trust in all of our citizens to choose their leaders,” the governor said Friday to a cheering crowd. “It has taken Virginia many centuries, unfortunately, to learn this lesson. But today, we celebrate its truth.”

Of course, not everyone cheered Gov. McAuliffe’s order. His critics, mostly conservatives who fear the decision will lead to a windfall of progressive voters, expressed vociferous opposition to the governor’s actions. Virginia GOP Chairman John Whitbeck told Fox News the governor’s decision “doesn’t speak of mercy. Rather, it speaks of political opportunism. … Restoration of rights should be a celebration of overcoming, not a transparent effort to win votes.”

Indeed, such complaints ring with the hollow echo of history.

To get an accurate understanding of how profound McAuliffe’s order is—as well as how malicious the criticism is surrounding it—one need only to flip through the pages of Virginia’s history book to June 12, 1901. On that day, an elected body of 100 delegates gathered in Richmond to rewrite the state’s constitution with the single-minded purpose of finding the means to circumvent the 14th and 15th Amendments of the U.S. Constitution, which collectively guaranteed equal protection—including voting rights—to freed slaves.

As the delegates debated, they made their positions clear, establishing the poll tax and literacy tests to deny enfranchisement to black residents in Virginia. As Susan Breitzer writes for the online Encyclopedia Virginia:

The most-debated specific measure, though, was the so-called “understanding clause,” which required prospective voters—or at least those unable to pay a newly instituted poll tax—to give a “reasonable” explanation of any section of the new state constitution at the demand of a registration board. This board, of course, was empowered fully to decide on what was “reasonable.” Delegate Alfred P. Thom did not pretend that such boards would treat white and black voters equally. “[I]t would not be frank in me, Mr. Chairman,” he said, “if I did not say that I do not expect an understanding clause to be administered with any degree of friendship by the white man to the suffrage of the black man.” And just to clarify his meaning, he added, “I would not expect an impartial administration of the clause.”

Gov. McAuliffe cited the persistence of the ingrained racism of that era as one reason for his decision. In a statement that summarized his rights order, McAuliffe noted a quote by one of the delegates at the constitutional convention who argued candidly that disenfranchising black voters with legalisms would “eliminate the darkey as a political factor in this State in less than five years, so that in no single county … will there be the least concern felt for the complete supremacy of the white race in the affairs of government.” Researchers at the Brennan Center for Justice traced that quote to convention delegate Carter Glass, who would go on to greater fame as a U.S. senator and author of the 1933 Glass-Steagall Act that regulated banks.

Today, only two states—Maine and Vermont—impose no restrictions on felony voting, and 12 of the other 48 states may lift voting restrictions on felons after they have been released and complete probation. Until McAuliffe’s order, Virginia was one of four states with the harshest penalties, requiring felons to complete all sentencing requirements and submit an individual petition or application to the governor for reinstatement of voting rights.

Momentum is building across the nation for reform. As my colleague Jamal Hagler, a Research Assistant with CAP’s Progress 2050, recently noted, the issue of felon disenfranchisement is not limited to Virginia; it is a problem that deserves attention in every state. “Glaring disparities in the application of justice have real consequences for the nation as a whole,” Hagler wrote. “Mass incarceration is not sustainable, and evidence does not support the theory that harsh punishments effectively reduce crime or recidivism rates.”

To be sure, there can be no good reason to continue excluding erstwhile felons from rejoining fellow citizens in helping shape American democracy. The time has come to end this egregious practice nationwide, and Virginia should be commended for doing its part.

Sam Fulwood III is a Senior Fellow at the Center for American Progress and Director of the CAP Leadership Institute. His work with the Center’s Progress 2050 project examines the impact of policies on the nation when there will be no clear racial or ethnic majority by the year 2050.