The most well-known portion of Ballot Question 3 deals with rights restoration for people convicted of felonies, but the amendment takes up two other issues, too. Language in the proposed amendment, if passed, would establish a “fundamental right” to vote, and another portion would change the way that a voter is found to be incapacitated.
Virginia currently has a free and equal elections clause, which reads: “All elections ought to be free; and that all men, having sufficient evidence of permanent common interest with, and attachment to, the community, have the right of suffrage.”
If passed, the amendment would add new language: “Every person who meets these qualifications shall have the fundamental right to vote in the Commonwealth, and such right shall not be abridged by law.”
“The amendment doesn’t immediately change any voting laws. Instead, it can change how courts will evaluate challenges to state election laws in the future,” said James Alcorn, director of the election law program at William & Mary Law School and the former chair of the Virginia State Board of Elections. “The amendment, if passed, would likely give voters a stronger basis to challenge laws or practices that substantially burden voting.”
Alcorn said the topics could cover a broad range of election law, from mail-in ballots and ballot access to redistricting and voter ID.
“Really, any election law that impacts voters’ fundamental right to vote,” he said.
A constitutional amendment to automatically restore voting rights to people convicted of felonies has been introduced for decades in the General Assembly. This year’s proposed amendment would also clarify that people who are incarcerated for felonies can’t vote; it does not mention people who are incarcerated for misdemeanor violations.
The late state Sen. Yvonne Miller, a Hampton Roads Democrat, introduced several iterations of a restoration amendment for many years.
“It was the restoration of rights for nonviolent felonies. Then it became just felonies. It kind of went back and forth for a while,” said State Sen. Mamie Locke (D–Hampton), who began carrying versions of the amendment in 2009 to restore rights to people convicted of any felony, and added the fundamental right language in 2019.
“It wasn’t a part of some of the original discussions that were had when Sen. Miller was pushing the legislation, or even when I first started introducing it myself,” said Locke. “But as the [US] Supreme Court started to chip away at the Voting Rights Act, other states started trying to figure out ways that they could increase voter suppression.”
Key sections of the Voting Rights Act have been either ruled unconstitutional or rendered inoperable by two US Supreme Court decisions, Shelby County v. Holder in 2013 and Louisiana v. Callais in 2026.
State lawmakers sought to reconstruct those protections at the state level through legislation, such as the 2021 Voting Rights Act of Virginia. But Locke and others wanted stronger safeguards, since a legislature can undo a past legislature’s actions.
Virginia is one of 30 states that have a free and equal elections clause, said Helen Brewer, senior policy specialist with the Elections and Redistricting Program at the National Conference of State Legislatures.
She said the fundamental vote language is “a little bit more direct or explicit, especially if we think about the modern way of speaking and writing, than the provision you all already have.”
Free and open elections are guaranteed in 18 states, and 15 have protections against interference from “civil or military” powers. Brewer said the fundamental right to vote is a “little bit less common of a step.”
But the fundamental right portion of the amendment couldn’t insulate Virginia from potential voter restrictions at the federal level.
“A change to the Virginia Constitution obviously doesn’t change the federal constitution and/or directly impact the US Congress’ ability to regulate elections,” said Alcorn.
But when federal voting rights are overturned by courts or repealed, state protections act as a failsafe. Abortion is legal in Virginia despite the Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision removing federal protections for the procedure; conversely, same-sex marriage is only legal in Virginia due to federal protections. Two proposed constitutional amendments on the ballot this fall take up this dynamic.
Another proposed change the amendment would make involves the process for taking away someone’s right to vote due to a lack of mental capacity — currently referred to as “mentally incompetent,” in the Virginia constitution, which the ballot question explanation calls “outdated terminology.”
The proposed language would instead read: “No person who has been adjudicated by a court of competent jurisdiction to lack the capacity to understand the act of voting shall be entitled to vote during such period of incapacity until his capacity has been reestablished as prescribed by law.”
The amendment would require a court to find a person doesn’t understand what voting is before they’re barred from casting a ballot.
Locke called that portion a holdover from the state’s 1902 constitution.
“It also addresses the fact that an individual who has been declared mentally incapable of voting can be eligible to register to vote once the capacity has been retained, and that you can’t just prohibit someone from voting because you think that they’re incapable of understanding the process,” she said.
The General Assembly passed a law during the 2026 session that mirrors this language. But the proposed amendment would prevent future legislatures from changing the process.
Former Gov. Glenn Youngkin vetoed a bill in 2025 that was similar to the 2026 law, saying that the law would place “an additional burden on the court that has previously adjudged an individual to be mentally incompetent. The burden should remain with the disqualified voters to demonstrate they are competent to vote.”
Click here to read more 2026 coverage from the Virginia Elections Collaborative.
Copyright 2026 VPM
