A federal judge in Richmond delivered a history lesson last week.
It came in the form of a ruling that struck down most of Virginia’s constitutional provision that says felons lose their voting rights unless they are restored by the governor.
The ruling by Judge John Gibney turned on a piece of history we often overlook: the terms of Virginia’s readmission to the Union in 1870, five years after the Civil War.
The fact that this 1870 federal law still governs what Virginia can and cannot do has implications beyond voting rights for convicted felons.
Let’s walk through this obscure, but still relevant, part of history.
In the aftermath of the Civil War, the Union faced the question of what to do with the defeated Southern states. The general debate was whether they should be restored to the Union quickly, with minimal conditions, or whether strict conditions should be imposed. This political struggle led to the impeachment of President Andrew Johnson — he came within a single vote of being removed from office — but continued on after that.
The Republicans who controlled Congress at the time were concerned that white Southerners would try to turn back time. While the South couldn’t bring back slavery — that was now banned by the 13th Amendment — Republicans worried that the South would use other legal mechanisms to restrict the rights of Black Americans. That’s why Virginia’s readmission act declared that “the Constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the right to vote who are entitled to vote … except as a punishment for such crimes as are now felonies at common law.”
In 1870, those felonies were arson, burglary, escaping from prison, larceny, manslaughter, mayhem, murder, rape, robbery, sodomy and suicide. Congressional Republicans in 1870 didn’t want Virginia to invent any new felonies aimed at disenfranchising Black voters. Of course, over time, Virginia has created new felonies — most notably narcotics-related offenses.
The legal case before Gibney dealt with two Virginians who had been convicted of drug offenses. They argued they couldn’t be denied the right to vote because of that 1870 law — and Gibney agreed. “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,” he wrote in his opinion.
The legal arguments in this case were politically interesting: Those on the liberal side (who wanted these Virginians’ voting rights restored) had to argue for an “originalist” point of view, which is normally a conservative view of the law. Those on the conservative side (who wanted to uphold Virginia’s additions to the list of felonies) had to argue for a more flexible reading of the law, which is generally a liberal view.
Voters could ultimately render all this moot: In November, Virginians will vote on three proposed amendments to the state constitution. One of them would automatically restore voting rights after a felon has served his or her term.
There is another part to Virginia’s readmission act that is also notable — and still potentially relevant. Why does Virginia have public schools? Because the Readmission Act requires it.
Republicans in 1870 — led by Sen. Charles Sumner, R-Massachusetts — were baffled at why white Southerners who owned no slaves had fought to uphold a slave-holding confederacy. Those Republicans blamed ignorance. Literacy rates in the South were low, and, before the war, not a single Southern state had a public school system. Congressional Republicans set out to fix that. At first, this was an unspoken expectation for readmission. By the time the last three Southern states got around to seeking readmission — Mississippi, Texas and Virginia — Congress had decided to explicitly require that their state constitutions mandate a public school system.
The state constitution that Virginia adopted dutifully called for “a uniform system of public free schools,” and the federal Readmission Act closes with the requirement that “the constitution of Virginia shall never be so amended or changed as to deprive any citizen or class of citizens of the United States of the school rights and privileges secured by the constitution of said State.”
Here is the question for us 156 years later: Is Virginia in violation of the Readmission Act as it relates to school funding? Virginia’s state constitution has been rewritten twice since those days. Along the way, the reference to a “uniform system” of schools was dropped. The current version requires free public schools and says the General Assembly “shall seek to ensure that an educational program of high quality is established and continually maintained.”
That wording “shall seek to ensure” has proved problematic to those who, over the years, have filed suit to challenge Virginia’s school system. When that language was being drafted in the late 1960s, Republicans and liberal Democrats wanted a guarantee of “high quality,” but conservative Democrats prevailed with the squishier language of “shall seek to ensure.” Legally speaking, that’s not a mandate, that’s aspirational.
Some legal scholars — notably Derek Black of the University of South Carolina, who wrote at length about these readmission acts in the Stanford Law Review in 2018 — have argued that those challenges to Virginia’s funding formula have been based on the wrong arguments. He’s argued that Virginia plaintiffs ought to pursue relief under the 14th Amendment, on the grounds that if Virginia’s schools are equal, that’s a violation of the 14th Amendment’s guarantee of “equal protection” under the law.
There’s also the Virginia Readmission Act. If the 1870 constitution mandated a “uniform system” and the terms of Virginia’s readmission to the union was based on the state constitution not being changed in a way to “deprive” anyone of their “school rights and privileges,” but the state constitution no longer calls for a “uniform system,” does that mean Virginia is currently in violation of the Readmission Act? That question, if it ever got before a judge, could turn on what a “uniform system” is. Does Virginia have a “uniform system” because every locality has a free public school? Or does it fail that standard because some schools offer subjects or facilities that others don’t?
I can imagine legal opinions on that might vary, but I wonder what Judge Gibney would think.
This will be a busy political year. It already is. Keep up to date with West of the Capital, our weekly political newsletter that comes out on Fridays. Sign up here: