On or about July 1,2003, EI-Amin entered a guilty plea in this Court to violating 18 U.S.C. §371, conspiracy to attempt to evade or defeat tax. On or about October 17, 2003, the Court sentenced EI-Amin to 37 months in federal prison and ordered that following his release from prison that EI-Amin would be on supervised release for a term of three years. EI-Amin was released from prison on May 10, 2006 and completed his Halfway House commitment on August 8, 2006 and his supervised release on August 8, 2009.
Sometime after entering his guilty plea, EI-Amin was notified by Showalter that his name had been stricken from the rolls of qualified voters for the City of Richmond because of his status as a convicted felon. EI-Amin's felony conviction has resulted in his being barred from voting and holding public office in Virginia for the rest of his life.
The Schema of Felony Disenfranchisement in Virginia
There are approximately 378,000 citizens in Virginia who are barred from exercising their right to vote due to a felony conviction. The criteria for one to apply to McDonnell, the Governor of Virginia, to have his or her voting rights restored is as follows:
- Must be a resident of Virginia, and/or have been convicted of a felony in a Virginia court, a U.S. District court or a military court;
- Be free from any sentence served or supervised probation and parole for a minimum of two years for a non-violent offense or five years for a violent felony or drug distribution, drug manufacturing offense, any crimes against a minor, or an election law offense;
- Have paid all court costs, fines, penalties and restitution and have no felony or misdemeanor charges pending; and
- Not have had a DWl in the five years immediately preceding the application;
- Not have any misdemeanor convictions and/or pending criminal charges 2 years preceding the application for non-violent felonies or five years fur a violent felony.
McDonnell has total and complete discretion as to whether or not he approves the applicant and restores his/her voting rights. McDonnell has not published nor made public any specific criteria that he uses in deciding on the applications for restoration of rights.
Unless and until McDonnell restores EI-Amin's voting rights, he will remain disenfranchised in the Commonwealth of Virginia for the rest of his life.
Virginia's History of Voter Disenfranchisement
Article II, Section I of the Virginia Constitution states as follows:
No person who has been convicted ofa felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.
Article II, Section 1 survived revisions to the Virginia Constitution in 1851, 1870, and 1902. In 1861, after Virginia voted for secession, western and several northern Virginia counties dissented and created a separate state, West Virginia with its own Governor.
A new Constitution was enacted in 1864 which abolished slavery in Virginia, disfranchised any representatives who served in the Confederate government and adjusted the number and terms of office of the members ofthe Virginia Assembly. Subsequent Virginia Constitutions do not include the 1864 Constitution in its list of previous constitutions, because the 1864 Constitution was drafted under wartime conditions and was deemed by those who seceded as having little or no legal significance.
The above provision was contained in the Constitution of Virginia when it was enacted in 1830. From the time of the original enactment the Constitution of Virginia until present, the only persons who were disenfranchised were those persons convicted of a felony.
Virginia's Secession from the United States
Virginia was one of II states to secede from the United States of America and did so on April 17, 1861. Following its secession, Virginia joined the Confederate States of America waged war against the United States. Virginia's war against the United States of America included offense of action in which the Confederate Army made incursions into Northern states including Pennsylvania.
Virginia's act of secession and taking up arms against the United States violated Article III, Section 3, of the United States Constitution, which makes it illegal for any person to levy war against the United States or gives Aid and Comfort to those who do so. Such acts are deemed treason within the meaning of the United States Constitution. Treason is a felony offense as evidenced by the fact that on June 13, 1866, Jefferson Davis, the former president of the Confederate States of America, was indicted for treason. The indictment against Davis was eventually dismissed in 1869 following the granting of general amnesty by President Andrew Johnson to those who seceded from the United States.
§§ 1, 2 and 3 of the 14th Amendment
The relevant portion of § 1 as it pertains to this action, prevents or prohibits Virginia or any other state to deny a citizen his or her rights to due process of law and equal protection of the laws. The relevant portion of § 2 as it pertains to this action is the right of Virginia or any other state to; exclude or disenfranchise from the right to vote those persons who participated in rebellion or "other crime (s)". The relevant portion of § 3 as it pertains to this action specifically prohibited one to hold public office if they had engaged in insurrection or rebellion or given aid or comfort to the enemies of the United States.
From December 1867 to April 1868, a new constitutional convention meet in Richmond in response to federal Reconstruction legislation. A large contingent of conservative whites boycotted the convention because of the § 2 mandate in the 14th Amendment which prohibited states from barring Black males from voting. Due to the white boycott, so-called "Radical Republicans", led by Judge John Underwood,
dominated the convention. This resulted in the crafting of what became known as the "Underwood Constitution", which white opponents dubbed the ''Negro Constitution". The Underwood Constitution included a provision disfranchising former Confederate government members that proved to be a stumbling block to the adoption of the Constitution because of white conservative opposition.
After much wrangling, a compromise was reached where it was agreed that the disfranchisement clauses would be decoupled from the rest of the constitution and that separate votes would be taken on the decoupled provisions. Following votes on the provisions, the disfranchisement clauses were defeated while the rest of the Constitution won approval and became the 1870 revision. The removal of the disfranchisement clauses from the 1870 Virginia Constitution occurred more than two years before the passage of the Amnesty Act of May 22, 1872, which removed voting restrictions and office-holding disqualification against most of those who rebelled in the American
Despite the clearly disqualifying language in §§ 2 and 3 of the 14th Amendment, with regard to those who participated in the rebellion, and prior to the Amnesty Act, Virginia only disqualified from voting those convicted of a felony.
In Virginia, Blacks comprise a majority of those convicted of a felony; while an overwhelming majority of those who participated in rebellion were White.
Virginia's Suppression of the Black Vote Post Reconstruction
The 15th Amendment to the Constitution which was ratified on February 3, 1870, granted African American men the right to vote by declaring that the "right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude."
In response to the 15th Amendment, the Virginia Legislature employed various and sundry devices specifically intended to deprive black men of the opportunity to vote, including, but not limited to literacy tests, grandfather clauses, poll taxes, and other combinations of election law changes.
In the Virginia Constitution of 1902, Article II, §§ 18 and 19 allowed every male citizen aged twenty-one or older the right to register and vote who had either served or was the son of any man who (I) had served in the army or navy of the United States or of the Confederate States; (2) who paid at least one dollar in property tax; and (3) who could read and explain, or explain having heard read, any section of the constitution.
The Virginia General Assembly enacted in 1904 a law that restricted the right to vote only to men who, (I) had paid a poll tax of$I.50 for each of the three preceding years (exempting Civil War veterans); (2) who made application to the registrar unassisted and in their own handwriting; and, (3) who provided satisfactory answers to any questions that the registrar asked.
Carter Glass, who was elected to the Senate of Virginia in 1899, and was a delegate to the Virginia constitutional convention of 1901-1902, was a principal in the drafting and passage of the Article II. Glass stated without equivocation that Article II would not automatically deprive white men of the ballot, but was intended to drastically reduce the Black vote, estimating a four-fifths reduction in the Black vote, which he declared was the purpose of this Convention. Glass' statements and pronouncements were neither repudiated, corrected nor amended by
the executive, legislative or judicial branches of the Commonwealth of Virginia.
In addition to constitutional and legislative enactments, white citizens of Virginia utilized various and sundry forms of intimidation and violence to suppress the Black vote. It was not until the passage of the Voting Rights Act in 1965 and the subsequent supervision
of its protections by the United States Department of Justice that many of the acts of suppression of the Black vote were either eliminated or neutralized in Virginia.