In the movie "Lincoln", there's a scene where "Radical" Republicans are debating Democrats in congressional chambers over whether to abolish slavery with a new constitutional amendment. A speaker from the Democratic Party, arguing against abolition, delivers a rousing speech about how Negroes shouldn't be emancipated because of the slippery slope of freedom. Once Negroes have freedom, he argued, then they'll want the right to vote–the prospect of which caused a riotous but bipartisan chorus of disagreement from most of Congress. The bellowing response was only outdone by an even more clamorous round of disapproving shouts when the speaker mentioned giving women the franchise.
Not far from the D.C. setting of that congressional debate was the Confederate Army and government, set up in Richmond, Va., where there was no disagreement about whether black people should have freedom or the right to vote. They, of course, ultimately lost the war and their cause, and were eventually allowed into what we now call the United States. Re-entry into society for Virginia and the Southern states meant adopting new constitutions ridden of any slavery talk, but they were clear back then about not giving black people any political power. And here's where it gets hairy.
As Virginia tried to patch together new versions of its state constitution from 1867 into the new century, it undoubtedly added amendments that robbed African Americans of their voting rights. One notable amendment, from 1876, added petty larceny to the list of felony offenses that would prevent someone from voting, because it was a crime most attributed to black people, according to scholars. It was Virginia's way of disenfranchising black people without stating it explicitly in the law.
More evidence: The 1901 Virginia Constitutional Convention featured a delegate Walter Watson who stated that the "great underlying principle of this Convention movement , the one object and cause which assembled this body, was the elimination of the negro from the politics of the state." And that was not, by far, an isolated or anomalous sentiment at the Convention.
Today, Virginia's felony disenfranchisement law–formed, in part, during that notorious time period–is being challenged by Sa'ad El-Amin, a former Richmond city council member, before he was convicted of felony tax evasion. As I reported in October, El-Amin is suing the state in U.S. District Court, not to have his own rights restored, but to have the felony disenfranchisement law struck as unconstitutional for violating equal protection, due process and cruel and unusual punishment clauses.
Virginia tried to have the case dismissed, perhaps too eagerly since it mucked up much of its clearly racist past in the filing. But a federal judge refused the state's wishes, and in fact summoned a legal analysis from William and Mary Law School to see just how strong the case is.
That analysis was filed this week. The conclusion: El-Amin doesn't have a strong case in terms of equal protection on the basis of race, but they found a quite formidable case to be made on denial of due process. As the law currently stands, people with felony convictions are permanently barred from voting unless they apply to the governor for restoration. But if there is any criteria the governor uses to determine whose rights he'll restore or not, no one other than him knows it. According to the amicus brief filed by William and Mary, that makes the law a violation of due process rights.
The brief reads: