The Origins of Felon Disenfranchisement in Virginia

The Virginia state constitution denies the vote to every “person who has been convicted of a felony . . . unless his civil rights have been restored by the Governor or other appropriate authority.”[1]  Recently, Virginia governor Terry McAuliffe ordered the restoration of voting rights for all felons “who have, as of this 22nd day of April 2016, (1) completed their sentences of incarceration for any and all felony convictions; and (2) completed their sentences of supervised release, including probation and parole, for any and all felony convictions.”[2]  Defending this order, articles in several publications subsequently argued that Virginia’s felon disfranchisement provision originated in the commonwealth’s previous, Jim-Crow-era, 1902 constitution.[3]  Disagreeing with this position are various other parties, including Governor McAuliffe himself,[4] opponents of his order,[5] federal courts,[6] and scholarly opponents of felon disfranchisement,[7] all of whom explicitly or implicitly concede that Virginian felon disfranchisement long predates the 1902 constitution.  In my view, this latter position is correct; Virginia first disfranchised felons at least three, and perhaps seven, decades before the enactment of the 1902 “Jim Crow” constitution.

Admittedly, Virginia’s 1902 constitution did indeed disfranchise

persons who, prior to the adoption of this Constitution, were disqualified from voting, by conviction of crime, either within or without this State, and whose disabilities shall not have been removed; [and] persons convicted after the adoption of this Constitution, either within or without this State, of treason, or of any felony, bribery, petit larceny, obtaining money or property under false pretences, embezzlement, forgery, or perjury . . . .[8]

This provision, however, was not the first of its kind in the commonwealth.  Virginia’s 1870 constitution also barred voting by all “Persons convicted of bribery in any election, embezzlement of public funds, treason, or felony.”[9]  Appearing in the same constitution that first enfranchised black male Virginians,[10] this provision, on its face, clearly disfranchised all felons in Virginia.

Moreover, Virginia’s 1830, 1851, and 1864 constitutions probably disfranchised felons, because each of these documents denied the vote to “any person convicted of any infamous offence”;[11] and antebellum American law usually defined “infamous offense” or “infamous crime” to encompass felonies.  For instance, during the convention that drafted the 1830 constitution, delegates interpreted “infamous offence” and “infamous crime” in this manner.[12]  So also did nineteenth-century legal treatises[13] and courts[14] (including those in Virginia[15]), when discussing the procedural rules barring testimony by those convicted of “infamous crimes.”  Similarly, when other states’ constitutions barred voting or office-holding by those convicted of “infamous crimes,”[16] supreme courts in those states defined that phrase to encompass felons.[17]  Such evidence strongly implies that Virginia’s 1830 constitution – and not that document’s 1902 successor – first introduced felon disfranchisement into the commonwealth.

[1] Va. Const. art. II, § 1 (1971), available at http://hodcap.state.va.us/publications/Constitution-01-13.pdf.

[2] Va. Order for the Restoration of Rights (Apr. 22, 2816), http://governor.virginia.gov/newsroom/proclamations/proclamation/order-for-the-restoration-of-rights/.

[3] See Matt Ford, The Racist Roots of Virginia’s Felon Disenfranchisement, Atlantic Monthly, Apr. 27, 2016, http://www.theatlantic.com/politics/archive/2016/04/virginia-felon-disenfranchisement/480072/ (characterizing the order as “an exorcism for one of Jim Crow’s last vestiges in Virginia’s state charter”; and stating that, “Now, Virginia is rolling back more than a century of racial disenfranchisement conducted beneath the thinnest veneer of legitimacy.”); id. (“Disenfranchising people with criminal convictions was one of many vote-suppressing tools deployed in the state’s 1902 constitution, which was explicitly drafted and ratified to destroy black political power in the Old Dominion.”); id. (“The 1830 constitution limited [criminal disfranchisement] to ‘infamous crimes,’ for example, while its 1851 successor drafted by reformers added bribery and the 1870 charter targeted treason and corruption.”); id. (noting that, upon enactment of Virginia’s 1971 constitution, “Many of the defunct measures to constrain black voting were erased . . . . But the felon disenfranchisement provision remained . . . .”).   See also Steve Benen, Virginia GOP to Sue McAuliffe over Felon Voting Rights, MSNBC, May 2, 2016, http://www.msnbc.com/rachel-maddow-show/virginia-gop-sue-mcauliffe-over-felon-voting-rights (discussing “the history of Virginia’s felon-disenfranchisement law, which was created by policymakers who made no effort to hide their racist intentions.”); Samantha Lachman, Civic Groups Are Rushing To Register Newly Eligible Ex-Offenders In Virginia, Huffington Post, May 9, 2016, http://www.huffingtonpost.com/entry/virginia-ex-offenders_us_5730e213e4b016f378969edc (stating that “the state’s constitution enshrined felon disenfranchisement into law in 1902,” and that “disenfranchising ex-offenders was an inherently political move in the first place, more than a century ago.”); James M. McCarthy, Letter to the Editor, History Upends the GOP Narrative on Virginia Voting Rights, Wash. Post, May 26, 2016, https://www.washingtonpost.com/opinions/history-upends-the-gop-narrative-on-virginia-voting-rights/2016/05/26/cd67dbee-212e-11e6-b944-52f7b1793dae_story.html (“the historical record demonstrates that the current statutory provision was adopted in a 1901-1902 constitutional convention.”); Vann Newkirk, Governor McAuliffe’s Gambit, Atlantic Monthly, Apr. 27, 2016, http://www.theatlantic.com/politics/archive/2016/04/mcauliffe-virginia-felony-disenfranchisement/479808/ (“Over a century ago, Virginia first enshrined felon disenfranchisement in its constitution. A Jim Crow-era provision stated that all people who had been convicted of felonies were barred from voting . . . .”); Crimson Quillfeather, Suing Governor Terry McAuliffe: The More Things Change . . . A Short Overview, Daily Kos, May 24, 2016, http://www.dailykos.com/stories/2016/5/24/1528168/-Suing-Governor-Terry-McAuliffe-The-More-Things-Change-A-Short-Overview (stating, with respect to Virginia felon disfranchisement, that “The origins of the Virginia’s voter restriction laws goes all the way back to 1902 and the Constitutional Convention . . . .”); Editorial, Restoring Virginians’ Voting Rights, Wash. Post, May 8, 2016, https://www.washingtonpost.com/opinions/restoring-virginians-voting-rights/2016/05/08/71e5301a-12f5-11e6-8967-7ac733c56f12_story.html (“THE INTENT of Virginia’s ban on voting by convicted felons was to weaken the political power of black people, whose electoral clout was abhorrent to the racists who enacted the prohibition a century ago.”).

[4] Terry McAuliffe, In His Own Words: Governor Terry McAuliffe on Restoring the Rights of 206,000 Virginians, Medium, Apr. 22, 2016, https://medium.com/@GovernorVA/in-his-own-words-governor-terry-mcauliffe-on-restoring-the-rights-of-206-000-virginians-337e1cd0cf95 (emphasis added) (stating that “the 1902 constitution establish[ed] . . . broader restrictions on individuals with felony convictions.”).

[5] Charles J. Cooper, Op-Ed, Terry McAuliffe vs. The Rule of Law, Wall Street J., Jun. 2, 2016, http://www.wsj.com/articles/terry-mcauliffe-vs-the-rule-of-law-1464907462 (stating that Virginia’s “prohibition on felon voting dates back to 1830 . . . .”).

[6] Howard v. Gilmore, No. 99-2285, slip op. at 2 (4th Cir. Feb. 23, 2000) (“The Commonwealth’s decision to disenfranchise felons pre-dates the adoption of both [the Fourteenth and the Fifteenth] constitutional amendments as well as the extension of the franchise to African-Americans [in 1870].”); Perry v. Beamer, 933 F. Supp. 556, 559 (E.D. Va. 1996) (citing Va. Const. art. III, § 14 (1830)) (“The Commonwealth of Virginia has long excluded convicted felons from the franchise.”).

[7] Helen A. Gibson, Felons and the Right to Vote in Virginia: A Historical Overview, The Va. Newsletter, Jan. 2015, at 2 (“in 1830, . . . the state’s first explicit felon disenfranchisement measure . . . was implemented.”); Dori Elizabeth Martin, Comment, Lifting the Fog: Ending Felony Disenfranchisement in Virginia, 47 U. Rich. L. Rev. 471, 477 (2012) (“[F]elony disenfranchisement . . . . became part of the Virginia Constitution in 1830, long before slavery was abolished and African Americans were given the right to vote.”).

[8] Va. Const. art. II, § 23 (1902), reprinted in 7 The Federal and State Constitutions 3902, 3908 (Francis Newton Thorpe, ed. 1909) [hereinafter FSC].

[9] Va. Const. art. III, § 1 (1870), reprinted in 7 FSC, supra note 8, at 3871, 3875.  Ford, supra note 3, oddly fails to mention this particular exclusion, even though the article otherwise evinces familiarity with the 1870 charter’s voting qualifications by stating that they “excluded only people convicted of corruption or treason, participants in duels, and ‘idiots and lunatics’ from voting.”

[10] 1 A.E. Dick Howard, Commentaries on the Constitution of Virginia 338-39 (1974).

[11] Va. Const. art. III, § 14 (1830), reprinted in 7 FSC, supra note 8, at 3819, 3826; see also Va. Const. art. III, § 1 (1864) (“No person shall have the right to vote . . . who has been convicted . . . of any infamous offence.”), reprinted in 7 FSC, supra note 8, at 3852, 3855; Va. Const. art. III, § 1 (1851) (“[N]o person shall have the right to vote . . . who has been convicted . . . of any infamous offence.”), reprinted in 7 FSC, supra note 8, at 3829, 3833.

[12] For instance, Charles Morgan proposed barring “those under judgment of felony or other infamous crime” from voting.  See Proceedings and Debates of the Virginia State Convention of 1829-30, at 44 (Richmond, Samuel Shepard & Co. 1830).  Similarly, when a resolution from the convention’s Legislative Committee proposed disfranchising “any person convicted of any infamous offence,” Benjamin Leigh noted that this proposal would bar voting by “the felons in the Penitentiary[.]”  Id. at 39, 151, 161.

[13] 1 Joel Prentiss Bishop, Commentaries on the Criminal Law § 644 (Boston, Little, Brown & Co. 1856) (referring to “treason, felony, and certain classes of misdemeanors known by the term crimen falsi, all of which are commonly called infamous crimes . . . .”); 1 Simon Greenleaf, A Treatise on the Law of Evidence 477 (Boston, Little & Brown, 5th ed. 1850) (“It is a point of no small difficulty to determine precisely the crimes which render the perpetrator thus infamous. . . . The usual and more general enumeration is, treason, felony, and the crimen falsi.”); id. at 480 (“[N]o person is deemed infamous in law, until he has been legally found guilty of an infamous crime.”); Thomas Peake, A Compendium of the Law of Evidence 199-200 (Philadelphia, Abraham Small 1824) (“Treason or felony, and every species of what is called in our books the crimen falsi . . . prevent a man, when convicted of them, from being examined in a Court of Justice. . . . if he be convicted of barratry, or other infamous offence . . . such conviction renders him incompetent.”); 1 S. March Phillipps, A Treatise on the Law of Evidence 14 (London, Saunders & Benning, 9th ed. 1842) (footnote omitted) (“The conviction of an infamous crime, followed by judgment, disqualifies a person from giving evidence in our courts of justice . . . .”); id. at 16 (“the whole class of offences which come under the denomination of felony, incapacitate . . . .”); 1 Thomas Starkie, A Practical Treatise of the Law of Evidence 95 (London, V. & R. Stevens and G.S. Norton 1842) (footnotes omitted) (“[W]hen convicted of an infamous crime, [a witness] is incompetent . . . . The crimes which render a person incompetent are treason, felony, all offences founded in fraud, and which come within the general notion of the crimen falsi of the Roman law . . . .”); 2 Archibald John Stephens, The Law of Nisi Prius 1721 (footnote omitted) (Philadelphia, Carey & Hart 1844) (noting, under the heading “Crimes that are infamous,” that “Persons convicted of treason, [and] felony . . . are considered infamous.”).

[14] Carter v. Cavenaugh, 1 Greene 171, 176 (Iowa 1848) (“[W]hen a witness has been legally and finally adjudged guilty of an infamous crime, he is rendered incompetent, unless rehabilitated by pardon. Such infamy results only from . . . treason, felony, and the crimen falsi . . . .”); Commonwealth v. Green, 17 Mass. (17 Tyng) 515, 539 (1822) (noting that “an infamous crime” encompassed “treason,” “felony,” and “the crimen falsi . . . .”); Carter v. Andrews, 33 Mass. (16 Pick.) 1, 5 (1834) (referring to “felony or any other infamous crime punishable by law.”); Ryan v. Ryan, 9 Mo. 539, 543 (1845) (referring to “a conviction of felony or other infamous crime . . . .”); Minnesota v. Hogard, 12 Minn. 293, 295 (1867) (“[T]he term ‘infamous crime’ [is] used to characterize those offences which are statutory felonies.”); People v. Toynbee, 13 N.Y. 378, 457 (1856) (Opinion of Hubbard, J.) (“That section simply forbids the legislature from enacting any law by which an offender, charged with an infamous crime, in other words a felony, may be held to answer, except upon indictment.”); Carroll v. White, 33 Barb. 615, 621 (N.Y. Sup. Ct. 1861) (referring to “a charge of felony or other infamous crime . . . .”); People v. Whipple, 9 Cow. 707, 708 (N.Y. Cir. Ct. 1827) (noting that “a conviction of treason, or felony, or of any species of the crimen falsi, will incapacitate the party convicted from giving evidence,” and that a person “convicted of an infamous crime, is an incompetent witness.”); In re Hughes, 61 N.C. (1 Phil.) 57, 64 (1867) (quoting Letter from R.M. Pearson, C.J., N.C., to Jonathan Worth, Governor, N.C. (Jun. 21, 1866)) (“If it be infamous or degrading, as the jail or penitentiary, the offense is a crime, and properly associated with ‘treason’ and ‘felony.’”); Sparrow v. Maynard, 53 N.C. (8 Jones) 195, 196 (1860) (referring to “felonious or other infamous offenses.”); Bickel’s Ex’rs v. Fasig’s Adm’r, 33 Pa. 463, 464 (1859) (“The usual distribution of infamous offences is, into treason, felony, and the crimen falsi . . . .”); State v. Keyes, 8 Vt. 57, 64-65 (1836) (“[T]he number of infamous crimes . . . should not be multiplied by construction. Those which are held to be infamous, as treason, felony, forgery, and perjury and bribery, should be clearly defined and well known.”)

Admittedly, a few courts instead equated “infamous crimes” with crimes punishable by flogging or other penalties deemed “infamous.”  See In re Metzger, 17 F. Cas. 232, 237 (S.D.N.Y. 1847) (No. 9,511) (characterizing “infamous punishment” as one of “the consequences of an infamous crime.”); Jones v. Robbins, 74 Mass. (8 Gray) 329, 347 (1857) (“Then comes the practical difficulty, as before suggested, in ascertaining, in particular cases, what are infamous punishments, or, in other words, what are infamous crimes and offences.”); Sparrow v. Maynard, 53 N.C. (8 Jones) 195, 196 (1860) (“Words actionable per se, that is say, where no special damage is alleged, must impute an infamous offense. . . . The infamy of the punishment seems to be the criterion by which the effect of words to degrade, socially, is judged . . . .”); Wall v. Hoskins, 27 N.C. (5 Ired.) 177, 179 (1844) (equating “infamous crime” with a crime subjecting the perpetrator to an “infamous punishment”).  However, even this reading of “infamous crime” could encompass felonies punishable by “infamous” penalties.  See United States v. O’Sullivan, 27 F. Cas. 367, 369 (S.D.N.Y. 1851) (No. 15,974) (characterizing “felonies” as “statutory offences, carrying with them an infamous punishment . . . .”); State v. Lartigue, 6 La. Ann. 404, 405 (1851) (“[T]he term felony . . . denotes, here, a crime of great magnitude, and subject to an infamous punishment–death or imprisonment at hard labor in the penitentiary.”).  Moreover, many other courts and authorities held that the nature of a given offense, and not the punishment associated therewith, determined whether that offense was “infamous.”  See State v. Jim, 1 Del. Cas. 335, 336 (1793) (“Many crimes not infamous are infamously punished, as fornication, etc. But it is not the punishment, but the crime, which constitutes the infamy which would render it dangerous to admit men as witnesses, and which therefore renders them incompetent.”); People v. Herrick, 13 Johns. 82, 84 (N.Y. Sup. Ct. 1816) (“[E]ven barratry will exclude a person from testifying; the infamy of the crime and not the nature of the punishment working the incapacity.”); State v. Yeates, 11 N.C. (4 Hawks) 187, 190-91 (1825) (“[T]here is no instance of a judge being invested with a discretionary power to consign a man to infamy by the nature of the punishment, unless there is something infamous or mean in the crime itself.”); State v. Kearney, 8 N.C. (1 Hawks) 53, 54 (1820) (“The rule of confiding infamous punishments to infamous crimes was so generally observed, that the crime and punishment became associated in the mind, and it was formerly thought that the latter, and not the former, disqualified the party as a witness.”); Bickel’s Ex’rs v. Fasig’s Adm’r, 33 Pa. 463, 465 (1859) (“the infamy of an offence does not consist in the punishment, but in the moral turpitude of the act itself . . . .”); Clellans v. Commonwealth, 8 Pa. 223, 228 (1848) (citation omitted) (“I would not be disposed to . . . expose any citizen to infamous punishment for undefined offences not in their nature infamous, at the discretion of any court.”).

[15] In Byrd v. Commonwealth, 2 Va. Cas. 490 (1826), the General Court of Virginia considered whether “an accomplice in the burglary and felony charged, who had been remanded for trial for the said offence,” id. at 490 (emphasis added), was “an incompetent witness, and was, therefore, improperly admitted [to testify in a criminal trial],” id. at 491.  By “the said offence,” the Court meant that the accomplice was to be tried for the same “burglary and felony” the principal.  See id. at 493.  If “infamous crimes” hadn’t encompassed felonies, then the Court could have simply decided the case on that ground.  Instead, however, the Court implicitly agreed that felonies were infamous crimes, and consequently affirmed the accomplice’s competency on the grounds that incompetency for “infamous crimes” only extended to those convicted of such crimes.  Id. at 491.  Since the accomplice to the felony in question hadn’t been convicted of that felony, the “infamous crimes” exclusion didn’t render him incompetent to testify.

[16] See Ark. Const. art IV, § 12 (1836), reprinted in 1 FSC, supra note 8, at 268, 272 (authorizing disfranchisement of “all persons convicted of bribery, perjury, or other infamous crime.”); Md. Const. art. I, § 5 (1851), reprinted in 3 FSC, supra note 8, at 1712, 1718 (“[N]o person above the age of twenty-one years, convicted of larceny or other infamous crime, unless he shall be pardoned by the executive, shall ever thereafter be entitled to vote at any election in this State . . . .”); N.Y. Const. art. II, § 2 (1821), reprinted in 5 FSC, supra note 8, at 2639, 2643 (authorizing “Laws . . . excluding from the right of suffrage persons who have been or may be convicted of infamous crimes.”); Pa. Const. art. VI, § 9 (1838), reprinted in 5 FSC, supra note 8, at 3104, 3112 (requiring that any state officer “shall be removed on conviction . . . of any infamous crime.”).

[17] See State v. Eldridge, 12 Ark. 608, 612 (1852) (“The felony is the conclusion of the law from the acts done with the intent described, and makes part of the punishment; as under our statute the prisoner is rendered infamous and also disfranchised.”); Black v. Maryland, 2 Md. 376, 380 (1852) (“[A] person convicted of an infamous crime is disqualified thereby as a witness, and to this disqualification our constitution . . . superadds another, the deprivation of the elective franchise. The prisoner has been convicted of an infamous crime, to wit, of a felony . . . .”); Barker v. People, 20 Johns. 457, 460 (N.Y. Sup. Ct. 1823) (“The law has settled what crimes are infamous; they are treason, felony, and every species of the crimen falsi, such as perjury, conspiracy, and barratry.”); Commonwealth v. Shaver, 3 Watts & Serg. 338, 342 (1842) (“[T]he conviction of a person of an infamous crime, renders him incompetent to be a witness thereafter . . . . The offences which disqualify a person to give evidence, when convicted of the same, are treason, felony, and every species of the crimen falsi . . . .”).

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