State officials and advocacy groups are at odds over whether Virginia's elections department is following a federal court order that, effectively, should restore voting rights to people with certain felony convictions.
ELECT and Attorney General Jay Jones' office say they're following US District Court Judge John Gibney's orders to not deny voter registration applicants solely for convictions other than 11 common-law felonies in 1870 — a list that includes arson, mayhem, manslaughter and murder.
But their registrations are not being fully processed immediately, and instead are initially being categorized as "incomplete" pending further case-by-case evaluation, according to guidance ELECT sent to local registrars on June 17.
Early voting in Virginia's 2026 primaries opened on June 18.
The ACLU of Virginia and other advocacy groups representing Tati King and Toni Johnson, the two residents who filed the federal lawsuit, say this process shows that state officials "have not come close" to complying with the order.
The groups argue that the "incomplete" process has kept applicants, including King and Johnson, in limbo while early voting for the Aug. 4 congressional primaries is underway. They fear it could discourage others from applying altogether.
The plaintiffs filed a June 18 motion asking Gibney to rule that Virginia isn't following his order and to take certain actions to do so. Four days later, the AG's office submitted its opposition to the plaintiffs' motion.
"I think we just fundamentally disagree about what the order is requiring," Eden Heilman, legal director at the ACLU of Virginia, said in a Wednesday interview. "We would argue that indefinitely sitting on forms and not ever processing them is a constructive denial. Never processing someone's application means they're never registered to vote."
Three days before Gibney's initial May 1 deadline, King's legal team and the AG's office agreed to extend it to June 1 to give election officials more time to comply with the judge's ruling.
ELECT sent out an advisory on June 1 telling local election officials not to deny registrations if the person has a felony conviction that's not on the list of 1870 common law felonies and hasn't had their voting rights restored by the governor.
On June 17, ELECT released updated guidance that says if someone falls under that category, their application is designated as "incomplete" and then ELECT will update local registrars twice a week on the status of each application.
ELECT spokesperson Andrea Gaines said the agency has met the order's June 1 deadline, because it ensured "the list of prohibited applicants contained only individuals with confirmed convictions for common law felonies."
"On applications indicating a felony conviction and no restoration of rights, individual evaluation may be required, prior to a decision on the application by the general registrar, to ensure the conviction at issue is not a disqualifying common law felony," Gaines added.
Applicants whose cases require additional review need to fill out a form that's then sent to ELECT and the AG's office for evaluation if needed. The form asks questions about an applicant's criminal history and includes a warning that lying on the form is considered felony election fraud, which includes a potential 10-year prison sentence (but is not one of the disqualifying charges).
According to the June 17 guidance, the Jones' office's "review process is new and ELECT cannot provide an estimate on how long their determination will take."
ELECT said it was working to add new "functionality and searchability" in the Virginia Election and Registration Information System to review records.
"The case is unusual, but it doesn't need to be complicated," Heilman said. "I think that the AG's approach to this case has made this tremendously more complicated than it needs to be."
King and Johnson both went to register but their applications remain on hold as of Wednesday, Heilman told VPM News.
Their lawsuit, originally filed in 2023, argued that Virginia's disenfranchisement rule for any felony conviction violates an 1870 federal law readmitted Virginia to US Congress — on the condition that it wouldn't pass laws that disenfranchise people for convictions other than a select few.
Gibney's Jan. 22 court order says Virginia can't strip someone's voting rights away for felonies other than those under common law in 1870: "(1) arson; (2) burglary; (3) escape and rescue from a prison or jail; (4) larceny; (5) manslaughter; (6) mayhem; (7) murder; (8) rape; (9) robbery; (10) sodomy; and (11) suicide."
In its June 22 response to the plaintiffs' motion, the AG's office argued that ELECT is following the court order and that plaintiffs haven't established that the list of disqualifying crimes goes against the injunction.
The filing states that the implementation of the court's order has been complex because it requires coordination among several agencies and comes with multiple other hurdles.
The AG's office also said it's been difficult reviewing over 1,000 modern-day felonies and establishing a list of today's crimes that align with one of the 1870 felonies. The plaintiffs argued that some on the list crafted by the AG's office "bear no resemblance" to the 11 outlined in the court order.
"It is possible to use tear gas in a way that maims someone to a degree that it would qualify as common law mayhem," the AG's office wrote in the filing. "Stealing charitable gaming funds, under some factual scenarios, will obviously be common law felony larceny as it existed in 1870."
Heilman said she's worried that people with felony convictions that aren't disqualifying under the new rules will not be able to vote — or will avoid registering to avoid the hassle.
She said the concern is heightened particularly considering that Virginia voters will decide in November whether to amend the state's constitution to automatically restore voting rights to people who have completed felony convictions.
"Many of the very folks that could have benefited from that, who could be eligible to vote on that amendment may not actually register or get registered because of what's happening right now," she said.
Among other actions, the filing asks the court to order ELECT to update its voter registration form to only ask about convictions on the disqualifying list of felonies by July 10.
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