A federal judge says Virginia officials incorrectly applied his order in a landmark voting rights case ruling that found the commonwealth had wrongly kept people with certain felony convictions from the ballot box for more than a century.
As a result, potentially hundreds of thousands of Virginians who should have been able to vote in the August primary were prevented from doing so.
US District Court Judge John Gibney partially struck down Virginia’s felony disenfranchisement rule in January, narrowing it to just 11 common-law felonies from 1870. Attorney General Jay Jones’ office said that the list of 11 could apply to 284 modern-day crimes, but Gibney said that reading of his order was wrong.
“Virginia can freely choose to disenfranchise a person convicted of one of the eleven common-law felonies,” Gibney wrote in an Aug. 19 opinion. “But Virginia may not use any other felony conviction as a grounds for disenfranchisement.”
Tati King and Toni Johnson sued Virginia Department of Election (ELECT) officials in 2023 arguing that the state’s felony disenfranchisement rule violates the Readmission Act of 1870 — which allowed Virginia to regain congressional representation after the Civil War on the condition that it wouldn’t pass laws that disenfranchise people for convictions other than a select few.
But because Virginia did just that, Gibney ruled in their favor, directing Virginia to not deny or cancel voter registrations for convictions other than 11 common-law felonies in 1870, a list including arson, manslaughter and murder.
Attorney General Jay Jones’ office said that 181 modern-day felonies, and possibly another 103, traced back to the 11 crimes from 1870 and should strip someone’s voting rights away.
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.”
Some of the 1870-era felonies have since been abolished, formally or functionally, from the Code of Virginia.
Jones’ office previously argued that certain crimes correlate with the 1870 crimes. For example, the AG said in a court filing that it’s “possible to use tear gas in a way that maims someone to a degree that it would qualify as common law mayhem.”
Gibney disagreed, writing in his Aug. 19 opinion “that a court could find someone guilty of common-law mayhem for using noxious gases to harm another,” but someone found guilty of illegal use of tear gas is not the same as someone found guilty of common-law mayhem.
“This case is simple,” Gibney wrote. “The Virginia Readmission Act gives a straightforward rule, and this Court’s injunction reflects that rule.”
Eden Heilman, legal director at the ACLU of Virginia, told VPM News that Gibney’s Aug. 19 order is a vital decision that explicitly settles which felonies can disenfranchise Virginians.
Heilman didn’t know exactly how many Virginians are convicted of felonies outside the list of 1870 crimes and should now be able to register to vote, but said, “It’s going to be in the hundreds of thousands of people, potentially.”
The Sentencing Project — a DC-based nonprofit that advocates for responses to crime that minimize imprisonment — estimated in 2024 that about 260,000 people in Virginia can’t vote because of felony convictions.
“This widely opens the door to who is part of the class and who should not have had their rights taken away in the front end,” Heilman said. “The very convoluted process that the state has established basically needs to be changed immediately.”
As of Aug. 24, ELECT’s website still has the list of 284 crimes that Jones said correlated with the 1870 crimes.
Also, two local election directors — Alexandria City’s Angie Maniglia Turner and Appomattox County’s Patricia Morton — told VPM News on Monday that they had not received any guidance from ELECT regarding Gibney’s latest order.
The state agency did not respond to multiple interview requests. On Monday, Jones’ spokesperson Rae Pickett told VPM News the AG’s office is reviewing Gibney’s latest ruling.
After getting an extension earlier this year, state election officials had until June 1 to implement Gibney’s order.
The ACLU of Virginia and other advocacy groups who represented King and Johnson in court argued that ELECT and Jones’ office still did not comply with the order in time because many people, including King and Johnson, initially had their voter registrations stuck in limbo.
In a June 1 advisory, ELECT told local election offices to hold registration applications from people with felony convictions not on the list of disqualifying crimes who hadn’t had their voting rights restored by the governor.
General registrars were told to categorize these voter registrations as “incomplete” pending further case-by-case evaluation from the AG’s office.
Three weeks after being told his registration was being put on hold, King learned on June 29 that his registration had become active, “but he had not received official notice from the Commonwealth,” Gibney wrote in his Aug. 19 opinion.
At least two other Virginians were prevented from registering online in June.
“These class members answered that they were felons whose rights the Governor had not restored, and the online form would not allow them to proceed,” Gibney wrote in the Aug. 19 opinion.
Gibney added that the dispute over which modern crimes can apply to the 11 common-law felonies from 1870 led to the delays and implementation failures.
“If the Commonwealth had a clearer understanding of what the Virginia Readmission Act allows, it could have offered clearer guidance to registrars and potentially avoided its problematic individual-evaluation scheme,” he wrote.
Applicants with felony convictions whose cases required additional review needed to fill out a form that would then be sent to ELECT and the AG’s office for evaluation if needed.
The form asked questions about an applicant’s criminal history and included 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).
Gibney’s Aug. 19 opinion states that he wouldn’t order changes to Virginia’s election paperwork. However, it didn’t rule out further action to address concerns about the forms and state’s process.
“They discourage felons from participating in the electoral system by suggesting to registrants that any felony conviction is relevant to a person’s ability to vote and by holding up the registration process for further examination of felony records,” he wrote.
“The Commonwealth has represented that it is working to remedy these issues. Continued discouragement of registration by felons may eventually justify judicial intervention.”
Gibney’s initial ruling came on Jan. 22, five days after Jones was sworn into office. Heilman said the ACLU wasn’t expecting to face such an uphill battle with Jones in office.
“Particularly this AG ran on a platform on civil rights and voting rights,” Heilman said. “So, I think we were very surprised when we started having conversations following the order in January, and quickly learned that we were on very different pages with the office about the scope of the order, the implementation process.”
Gibney pushed back on a court filing by the AG’s office contending that his Jan. 22 order would “be moot” if Virginians pass a ballot measure in November to amend the state’s constitution to automatically restore voting rights to people who have completed felony convictions.
Heilman said the ACLU of Virginia would love to see the commonwealth “right the ship” so people are aware of the changes ahead of the Nov. 3 elections.
The deadline to register to vote in the Nov. 3 elections is Oct. 23, though Virginia offers same-day registration with provisional ballots for voters who miss that deadline.
“It seems critically important for these folks to be able to have their voices heard, especially when there’s a constitutional amendment on the ballot that addresses rights restoration for people who have felony convictions,” she said. “Our hope is really that the state is able to make these changes quickly and in line with the order.”