No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority. —Virginia Constitution, Article II, Section 2.
Disenfranchisement of civil rights for criminal conduct dates to ancient Greece and Rome and has been transported into American law by way of English and medieval jurisprudence. For the most part, disenfranchisement takes the form of loss of voting rights along with some others, for example, jury service, firearm acquisition, notary qualification. This jurisprudence, in turn, is based upon a concept of “civil death” [a loss of all or most civil rights] under which offenders were deemed “outlaws” and precluded from participation in civic governance and culture.
Only Maine and Vermont have not adopted legislation disenfranchising felony offenders. Some legislative leaders in New Jersey, supported by the newly elected Democratic governor, announced plans to introduce bills to join Maine and Vermont. Recently, some states have made efforts to improve the re-registration of ex-offenders, including “automatic” restoration upon completion of sentence and/or parole. However, administrative barriers and resource shortages have seriously compromised these reforms.
Even in states where ex-offenders automatically regain the right to vote upon completion of their sentences, the process of re-registering to vote is difficult. —National Conference of State Legislatures (2016).
At its essence, disenfranchisement occurs by operation of law—that is, automatically—but completion of one’s sentence does not prompt automatic restoration to the voting rolls by operation of law. Functionally, therefore, disenfranchisement is often a lifetime sentence beyond a prison term. Also, because this loss of voting rights is not deemed punishment, there is no obligation that the convicted individual be notified of the loss or any extant right to have the right restored. As a rule of law, a convicted felon is entitled to hear the term of prison sentence but, oddly, this loss of a fundamental right as defined by the Supreme Court requires no such statement.
In the arc of social progress, moreover, most advocates of disenfranchisement have abandoned the traditional penal model as failing to achieve its objectives—retribution, deterrence, prevention, or rehabilitation. Instead, and more currently, proponents of the practice rely upon a “social contract” principle:
States have a significant interest in reserving the vote for those who have abided by the social contract that forms the foundation of representative democracy…. [T]hose who break our laws should not dilute the votes of law-abiding citizens. –Sen. Mitch McConnell, Congressional Record, 2002, p. S802.
Clearly, in light of imprisonment, loss of voting rights for criminal conduct is at a minimum collateral, even additional, punishment, and unlikely to discourage or thwart any individual as a deterrent. Nor may it be said that disenfranchisement prevents an offender from further similar conduct or even contributes to offender rehabilitation. What, then, is the political or social end served by disenfranchisement? The U.S. Constitution forbids enactment of bills of attainder or ex post facto laws whereby an individual or group may be found guilty without a trial. In practice, these types of punishments were often directed at seizure of property and executed in addition to imprisonment. In contemporary times, disenfranchisement, as added punishment, could be deemed “cruel and unusual.” In Furman v. Georgia (1972), the Supreme Court established criteria to evaluate the Eighth Amendment prohibition against cruel and unusual punishment, stating, in part, such should not be degrading to human dignity nor be patently unnecessary.
The “should” in Senator McConnell’s statement expresses a wish reflecting a social norm for disenfranchisement. Dilution of the votes of law-abiding citizens is a questionable allegation unless voting felons might operate as a political bloc of some type altering the electoral choices or outcomes of “law-abiding” citizens.
Some proponents also argue that the high rates of recidivism make restoration of felon voting rights a thankless endeavor. This latter justification seems a bare tag line since the Virginia Department of Corrections reports (2017) that the Commonwealth has the lowest rate of recidivism in the nation, perhaps testimony to successful rehabilitation. In Virginia, disenfranchisement was renewed after many decades in its 1902 Constitution, which also included a poll tax and a literacy test as voter qualifications. When Virginia Governor Terry McAuliffe proposed to re-enfranchise felony offenders pursuant to a constitutional provision empowering the governor to restore voting rights, the state’s GOP leadership and gubernatorial candidate, Ed Gillespie, voiced opposition without offering any rationale. Although the GOP succeeded in preventing the governor from en masse restoration, Governor McAuliffe proceeded to restore voting rights individually, one at a time.
As for violating the social contract that forms the foundation of democracy, a large number of elected officials would or should be disenfranchised on that standard based upon promises and commitments made and measured against delivery of those goals. The sole difference between the elected politician and the felon is that the offender’s trespass has been defined by society while we merely shake our heads at the sins of the electeds.
Since by all views disenfranchisement serves no useful penal purpose, the question arises as to whether laws authorizing disenfranchisement are, on one hand, legal and, on another, desirable. If all felons had the right to vote, what would the risk be? What is the benefit to society of disenfranchised felons? As Virginia celebrates 400 years of self-governance, the Commonwealth can demonstrate to the nation that it continues to reinvent itself and advance democratic principles by rescinding its disenfranchisement statute and joining Maine, Vermont, and possibly New Jersey in enhancing the reality of one person, one vote