For all of her adult life, Toni Heath Johnson has taken her right to vote seriously. “I have always voted when I was able to. I was raised in a family that believed in speaking up for what was right and what was wrong, and they instilled that in me. I’ve always been like that,” Johnson, 60, said in a recent interview.
But when the lifelong resident of Marion in Smyth County was released from incarceration last August — time she’d served for felony drug possession and distribution convictions in Washington County a few years ago — she learned that as a felon she had been disenfranchised and was no longer permitted to vote in Virginia.
Efforts to get Johnson’s rights restored have failed so far in a commonwealth where Gov. Glenn Youngkin has all but ended the restoration programs of his three predecessors — including one fellow Republican — that automatically restored the rights of at least some people convicted of felonies who have served their terms.
People with felony convictions seeking to have their rights to vote, run for office and serve on a jury restored are now required to file an application given to them once they are released. They are all “considered individually,” Secretary of the Commonwealth Kay Coles James wrote in a March 22 letter to state Sen. Lionell Spruill Sr., D-Chesapeake, who had expressed concern with the administration’s new policy.
For Johnson, her restoration hit a dead end last month when the Office of the Secretary of the Commonwealth of Virginia denied her application, without citing a reason. Johnson, who was not allowed to vote in the midterm elections last year, will also not be permitted to vote in the upcoming November 2023 Virginia elections — and every election after that.
And to this day, Johnson doesn’t know why her application was rejected. “From September until June I heard absolutely nothing, and all of a sudden it said that I am ineligible. And I don’t understand, somewhere along the way it changed, and I just don’t think it’s right. It’s a lot of confusion, not just for me but for a lot of people who are in the same position as I am,” she said.
Now Johnson is one of the plaintiffs in a suit filed last month at the U.S. District Court for the Eastern District of Virginia in Richmond by Protect Democracy, a nonpartisan group seeking to check authoritarian attacks on U.S. democracy; the American Civil Liberties Union of Virginia; and the Washington, D.C.-based law firm WilmerHale.
The lawsuit challenges the Virginia Constitution’s felony disenfranchisement provision, alleging that Virginia is in violation of a 150-year-old federal law that established the terms of Virginia’s readmission to representation in the United States Congress after the Civil War — the so-called Readmission Act of 1870.
Derek Black, a professor of law and the Ernest F. Hollings Chair in Constitutional Law at the University of South Carolina School of Law, said that Congress designed readmission acts to put conditions on certain former Confederate states seeking to rejoin the Union.
Georgia, one of the first states to be readmitted, immediately expelled all African American legislators from the General Assembly, Black said. “So you saw that the Southern states were not reentering in good faith, so Congress is really worried about that, and they wanted to be more specific with Virginia, because the commonwealth had gone back and forth with going back to the Union, it was standing out as a problem child compared to the other states.”
To prevent targeted disenfranchisement of Black Virginians, Congress passed the Virginia Readmission Act, which explicitly prohibits the state Constitution from being “amended or changed to deprive any citizen or class of citizens of the right to vote, except as a punishment for such crimes as are now felonies at common law.” In 1870 these crimes were murder, manslaughter, arson, burglary, robbery, rape, sodomy, mayhem and larceny.
“They said, ‘We don’t want you guys to be pulling a Georgia on us and kick out the Black people out of the legislature or throw them in jail for a bunch of nonsense to go on trumped-up felonies that you didn’t think were a problem last year, but now you suddenly do,’” Black said.
But at the turn of the century, Virginia amended its Constitution — which the plaintiffs say happened in violation of the Virginia Readmission Act — to disenfranchise people convicted of a far broader set of crimes. Like many other former Confederate states, the commonwealth was intent on keeping newly freed Black voters away from the ballot box.
“What the Readmission Act did to counter that misconduct was to say, you’re prohibited from disenfranchising individuals for crimes unless those crimes were felonies at common law at that time,” said Jared Davidson, an attorney and counsel with Protect Democracy.
“That 150-year-old law is still on the books. It’s never been repealed.”
But states throughout the former Confederacy, including Virginia, ignored that very law and expanded the set of crimes that triggered the disenfranchisement of Black people, Davidson said. “For example, in Virginia the Constitution disenfranchises individuals for life for being convicted of any felony whatsoever, and that includes drug crimes, which were not even crimes in the 19th century.”
Today, Virginia is one of only three states whose constitutions automatically disenfranchise all people with felony convictions unless the governor restores their right to vote. And of the three, the commonwealth is the only one that further requires everyone with a felony conviction to individually petition the governor to restore that right.
Youngkin spokeswoman Macaulay Porter declined to comment on the new lawsuit. But she referred to remarks by the governor at a bill signing ceremony at the Virginia War Memorial in Richmond in May, where he told reporters that Virginia follows both the law and the Constitution.
“Each person who is returning from being incarcerated is due a full review individually. It’s very clear,” Youngkin said, adding that his administration was following a request made by Spruill, the Democratic state senator from Chesapeake, to put more resources in the restoration process.
“And that’s exactly what we’ve done. We’ve hired a dedicated leader, to make sure that this process moves quickly. And we’ve committed ourselves to move faster. So we’re following the law as it is written,” Youngkin said.
But Davidson, the Protect Democracy attorney, said that Virginia has been in violation of the Readmission Act as long as it’s been disenfranchising people for felonies that weren’t felonies in common law — a policy that predates the Youngkin administration by decades.
“However, the new policy from this administration really exacerbates the harm for individuals by throwing sand into the gears of getting people’s rights restored more quickly by not providing clear standards for triggering restoration,” Davidson said.
As a result, an estimated 312,540 Virginians are now disenfranchised, rendering Virginia the state with the fifth highest number of citizens disenfranchised for felony convictions, and the sixth highest rate of disenfranchisement.
This impact disproportionately affects Black Virginians — the very population Congress sought to protect when it passed the Virginia Readmission Act in 1870.
Although Black Virginians comprise less than 20% of Virginia’s voting-age population, they account for nearly half of all Virginians disenfranchised due to a felony conviction, according to data provided by the ACLU and Protect Democracy.
Felony disenfranchisement among Black voting-age Virginians is nearly two-and-a-half times as high as the rest of Virginia’s voting-age population, and the rate of felony disenfranchisement among Black voting-age Virginians is more than twice as high as the rate of felony disenfranchisement among the entire United States Black voting-age population.
“If our suit is successful, individuals who presently don’t have the voting rights as a result of certain felony convictions, specifically that were not felonies at common law, will have their rights restored. That’s everybody in the present day who is convicted of a felony that was not a felony at common law,” Davidson said.
More importantly, it will also ensure that individuals who are convicted in the future, for example of drug crimes, will not have their voting rights taken away, Davidson said. “It will impact a multitude of individuals in Virginia who currently don’t have their voting rights, but in a forward looking way also individuals who may in the future pick up convictions, and Virginia does not have the right to take away their voting rights.”
Henry Chambers, a professor of constitutional law at the University of Richmond School of Law, said in an email that while the lawsuit by the ACLU and Protect Democracy “is straightforward,” it may be challenged on constitutional grounds.
“The key issue may become whether the Virginia Readmission Act was constitutional when passed, and if so, whether it retains its constitutional vitality today,” Chambers said, citing the U.S. Supreme Court’s approach in the 2013 Shelby County case, a landmark decision regarding two provisions of the Voting Rights Act of 1965.
“The Shelby County Court suggested that Section 4 of the Voting Rights Act may have been constitutional when originally promulgated — as the Court had ruled in 1965. However, it ruled Section 4 had essentially become unconstitutional over time, as Congress extended the section’s sunset provision without amending the section. When the Court deemed section 4 unconstitutional as applied, it also gutted the Voting Rights Act’s preclearance provision,” Chambers said.
While unique in its nature, the lawsuit by the ACLU and Protect Democracy isn’t the first that the Youngkin administration has faced since its changes to the voting rights restoration process became known.
In April, the Washington-based Fair Elections Center and Nolef Turns, a Richmond-based nonprofit that advocates for people with felony convictions, sued the state on behalf of Gregory Williams, a felon who has completed his sentence and has a restoration application pending.
The lawsuit argues that the current process conditions the right to vote “on the exercise of unfettered official discretion and arbitrary decision-making” in violation of the First Amendment of the U.S. Constitution.
Johnson, the plaintiff in the ACLU and Protect Democracy suit, currently works in the food industry while seeking a master’s degree in addiction and recovery from Liberty University and caring for her ill wife. She said that she is hoping for a successful case because she would like Youngkin to see and treat people like herself differently.
“I know we made mistakes, we broke the law, but we served time, some people served a lot more than I did. It’s not punishment that we need, we need to come back out and be productive,” she said.
“I work hard, and I think I should have the right to speak about what’s going on. If I can pay taxes, I should be able to vote,” Johnson said. “I just want Governor Youngkin to stop this mess and change it so it will be a little bit more understanding of people’s feelings.”