The lawsuit that I filed yesterday in United States District Court here in Richmond challenging the disenfranchisement of persons convicted of felonies from the right to vote and hold office, is dedicated to the late Senator Yvonne B. Miller who died on July 3, 2012.
Senator Miller was the first black woman elected to the House of Delegates and state Senate, where she later became the first to chair a standing committee. Senator Miller was a long time advocate for restoration of the voting rights of exfelons. Her valiant efforts to make automatic restoration a reality in Virginia was unsuccessful because of staunch opposition by both Democrat and Republican members of the General Assembly.
The 350,000 convicted felons who live in the State of Virginia have been stripped of our right to vote and hold public office, yet, we are still burdened with the duties of citizenship as obeying the law. We have effectively become stateless, which is the definition of one who does not enjoy the privileges of being a citizen. More important, our becoming stateless was not a part of the judgment or sentence rendered against us. Our statelessness is a result of racially discriminatory attitudes, intents, and decisions by those who dehumanized, disrespected and despoiled people of African descent, both by profiting from our labor and, denying us our civil and Human Rights.
Ironically, the law under which we have been made stateless has returned those of us who are African Americans to the same status as our ancestors who were enslaved in this country, people who have no rights to participate in government.
It is the racial animus that created and perpetuated the Article II, Section 1 of the Virginia Constitution, which reads, “No person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority” which I believe gives this lawsuit its strong legal merit.
There are two prominent legal theories upon which this suit is based. The first theory is based on a denial of equal protection based on race. This grows out of the unlawful and immoral decision by Virginia legislators in 1870 to enforce only one part of the 14th amendment by disenfranchising persons convicted of felonies while ignoring the disenfranchisement of those who participated in the rebellion against the union who were also required to be disenfranchised by the 14th amendment.
There is no question that the disproportionate impact of this decision fell largely upon people of African descent who were and continue to be a majority of those convicted of a felony offense. Yet, those persons who rebelled were almost exclusively White and were not disenfranchised despite the clear language to the contrary.
This is a classic example of disparate treatment based upon race, which is a denial of equal protection. For those who might wonder why this event which happened 140 years ago gives the case legal merit, I point to the 1985 Supreme Court of the United States decision, Hunter v. Underwood, 471 U.S. 222, 105 S.Ct. 1916, 85 L.Ed.2d 222 (1985), where the Court held that with regard to legislation, if the “original enactment was motivated by a desire to discriminate against blacks on account of race and the section continues to this day to have that effect…it violates equal protection historic based upon race.” 471 U.S. at 233.
The second theory is based upon its shameful and turbulent history of Virginia's suppression of the African-American vote following the Civil War and actions taken by those officials under the color of law to suppress the Black vote. Examples include responses to the 15th Amendment which gave Black men the right to vote by the Virginia Legislature which employed devices specifically intended to deprive black men of the opportunity to vote such as, literacy tests, grandfather clauses, poll taxes, and other combinations of election law changes.
I recite in the lawsuit a blatant example of this by the Virginia Constitution of 1902, Article II, §§ 18 and 19 which 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 (1) 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.
Also, the Virginia General Assembly enacted in 1904 a law that restricted the right to vote only to men who, (1) had paid a poll tax of $1.50 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.
In 1901, Virginia Senator Carter Glass was a delegate to the Virginia constitutional convention of 1901-1902. He was a principal in the drafting and passage of the Article II, state above. 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. 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.
Once again, the decision in Hunter v. Underwood holds Virginia or any other state presently accountable for its past efforts to suppress the Black vote, which is the reason I feel that the second prong of my lawsuit has great legal merit.
The trickle of reinstatements by Governor McDonnell and past Virginia governors in no way relieves Virginia from its shameful and illegal practice of disenfranchising persons who have a felony conviction. It is also ironic that Virginia’s governors, all of whom profess to be good Christians have failed and refused to grant automatic restoration to convicted felons.
They have turned a blind eye and deaf ear to a Christian fundamental, forgiveness and giving a second chance. According to scripture, the nameless person, the thief on the cross appealed to Jesus, saying, “Lord, remember me when You come into Your kingdom” (Luke 23:42). Again, according to scripture, Jesus, who was himself was on the cross, replied, “Assuredly, I say to you, today you will be with me in Paradise” (Luke 23:43).