This story was reported and written by our media partner the Virginia Mercury.
In a high-stakes voting rights battle with roots in the Reconstruction era, civil rights groups on Friday filed two new motions in a federal lawsuit that could restore voting rights to thousands of Virginians with felony convictions.
Announced Monday, the filings by the ACLU of Virginia, Protect Democracy and the law firm WilmerHale seek summary judgment in the case and class-action status on behalf of the more than 300,000 Virginians who they say remain disenfranchised under a state constitutional provision. The plaintiffs argue Virginia is violating a 150-year-old federal law — the Virginia Readmission Act of 1870 — which governed the state’s return to the Union after the Civil War.
“Some of the most pernicious attempts to suppress the voting rights of Black citizens trace back to the Civil War, but they have consequences that persist to this day,” said Vishal Agraharkar, senior supervising attorney at the ACLU of Virginia.
“Today, Virginia is one of only three states whose constitutions permanently disenfranchise all people with felony convictions unless the governor restores their right to vote – which not only deprives Virginians of their voting rights, but breaks federal law.”
The suit hinges on a novel interpretation of the 1870 law, which permitted the state’s return to Congress on the condition that its constitution only allow disenfranchisement “as a punishment for such crimes that are now felonies at common law.”
That list, defined in 1870, includes serious offenses like murder, rape and burglary — but not modern offenses such as drug possession.
“In Virginia today, we disenfranchise people for things like drug offenses, but those were not felonies at common law in 1870,” said WilmerHale partner Brittany Amadi. “By disenfranchising all people with felony convictions, Virginia is breaking federal law and disproportionately excluding Black and brown people from the ballot box.”
Among the plaintiffs in the case are Virginians like Toni Heath Johnson, a 62-year-old from Southwest Virginia, who lost her voting rights due to drug-related convictions.
“I already served my sentence,” Johnson said in a statement. “Being barred from voting prevents me from having a voice in decisions that better my life, my family’s lives, and my community, and amounts to a second sentence.”
Tati Abu King, 54, of Alexandria, another plaintiff, emphasized the broader racial impacts.
“There are a lot of Black men like me who have had their voting rights taken away. That means I have no voice in what’s happening in my community or my state,” he said. “What am I supposed to tell my stepchildren who learn at school that democracy means everybody has a voice?”
According to the Sentencing Project, a national nonprofit advocating for sentencing reform, one in eight eligible Black voters in Virginia is disenfranchised — more than triple the national rate of one in 22. In 2020 alone, Virginia barred more than 190,000 Black citizens from voting due to felony convictions, the second-highest figure in the country.
The new filings build on momentum gained in March 2024, when U.S. District Court Judge John A. Gibney Jr. ruled that the plaintiffs’ Readmission Act argument had enough merit to move forward. He rejected the state’s assertion that the issue was purely a matter of state politics, writing that the case “plausibly presents” a violation of federal law.
While Gibney did dismiss several aspects of the case — including claims that disenfranchisement violates the Eighth Amendment — he declined to remove Gov. Glenn Youngkin and Secretary of the Commonwealth Kelly Gee as defendants, noting their roles in enforcing the current policy.
Youngkin has largely dismantled the rights restoration programs put in place by his three immediate predecessors — including one Republican — that had automatically restored voting rights to at least some individuals with felony convictions who had completed their sentences.
Under Youngkin’s administration, people seeking to regain their civil rights, including the right to vote, run for office, or serve on a jury, must now file an application provided to them upon release. Each case is reviewed on a discretionary basis.
“They are all considered individually,” then-Secretary of the Commonwealth Kay Coles James wrote in a March 22, 2023 letter to state Sen. Lionell Spruill Sr., D-Chesapeake, who had raised concerns about the policy shift.
The Mercury has reached out to the office of Virginia Attorney General Jason Miyares for comment.
Under Virginia’s system, individuals with felony convictions may petition the governor for rights restoration, but no clear criteria exist, leaving decisions up to each administration’s discretion. The lawsuit challenges this system as opaque, unequal, and historically rooted in racial discrimination.
“After the Civil War, former Confederate states like Virginia were determined to keep newly freed Black people from voting,” the ACLU wrote in a statement. “They expanded felony laws to criminalize behaviors disproportionately affecting Black communities and used those convictions to systematically strip people of their right to vote.”
By seeking class-action status, the plaintiffs hope to extend the potential impact beyond the named individuals and force systemic change for hundreds of thousands of affected citizens.
“Because Virginia currently disenfranchises people convicted of all felonies, it directly violates federal law,” said Jared Davidson, counsel at Protect Democracy. “Virginians’ government has illegally disenfranchised people for more than 100 years. But this lawsuit proves that it’s never too late to right a wrong.”
The case was first filed in June 2023 in the Eastern District of Virginia, with a trial set for October 23, 2025 — just weeks before voters head to the polls in Virginia’s critical statewide elections.
