(AP Photo/Charlie Neibergall)
It’s 4:00 pm, Friday, Oct. 12, one hour until the end of the last full week of voter registration in Virginia. If your voter registration application isn’t submitted to the board of elections by close of business on Monday, you won’t be able to vote this November.
Lukita James, 38, sits in the Henrico Public Library filling out an application much longer than a simple voter registration form. Her 5-year-old son sits quietly beside her, hands folded as Lillie Branch Kennedy and Cathy Woodson assist her with applying to restore her right to vote. James marks down “grand larceny” in the area that asks what felony she was convicted of, the crime that divorced her from her voting franchise.
Virginia is one of four states this year that permanently disenfranchises  anyone with a felony conviction, a right only regained by appealing directly to the governor. James is one of 450,000 people disenfranchised under the felony statute, 350,000 of whom are not in jail but in society—242,000 of whom are African Americans.
The state’s felony disenfranchisement law was cultivated (though not born) during the turn of the 20th century, post-Reconstruction era when white lawmakers sought to limit, if not erase black political power after slavery was abolished. Millions of African Americans in Virginia over the past hundred years have been excluded from democracy as a result. The state now faces a massive collision between its Confederate history and its present racial realities, as civil rights advocates struggle to reconcile the two.
In May 2010, shortly after he took office, Gov. Bob McDonnell, a Republican, agreed to streamline the felon rights restoration process . He committed his office to processing restoration applications within 60 days, as opposed to the months for which applications languished in limbo in previous administrations.
This won’t help Lukita James for November. Even if she placed her application directly in Gov. McDonnell’s hands by close of business, the earliest she might hear back would be two weeks later, well after the voter registration deadline. As the day winds to a close, she heads to the county court to request the information she needs to complete her application for restoration. Before she leaves she asks Kennedy for a voter registration form for her older son, who’s 19. She can’t cast a ballot this year, but he still has time.
A Break With the Past
McDonnell’s commitment to review voting rights restoration applications in a shorter time than past governors may seem trivial, but advocates in the Virginia Voter Restoration coalition call it a “victory.” It’s a larger concession than any garnered from previous governors, even Democrats . But they believe McDonnell can go farther, grantingautomatic rights restoration.
There is, in fact, litigation pending in the U.S. District Court that could lead to automatic restoration. In a lawsuit filed July 24 against McDonnell’s administration, former Richmond City Councilman Sa’ad El-Amin, 72, is arguing that the felony disenfranchisement law is unconstitutional . El-Amin, who was convicted of felony tax evasion in 2003 and served three years in prison, is hanging his own right to vote on his lawsuit, which he says shows that the disenfranchisement law is an offspring of early Black Codes laws rooted in white supremacist intentions. It’s somewhat of a long shot, but El-Amin is less faithful in the “piecemeal” route to automatic rights restoration through the governor.
“It’ll never happen,” says El-Amin. “You know why? Because this is the same governor and general assembly that just passed a voter ID law, which is just another form of voter suppression.”
That said, the felon rights restoration coalition has made inroads with McDonnell’s office, after being stiff-armed and ignored by the state for almost 30 years. King Salim Khalfani, chairman of NAACP’s Virginia State Conference explains to me the decades-long struggle with the Commonwealth as we ride to 18th and Broad Street, near downtown Richmond, not far from a historic burial ground for enslaved Africans. Here, a voter registration tent is set up by Clovia Lawrence, a local radio personality, as part of her Rolling for Freedom project to increase black voter participation.
A man named “Mr. Stuart” approaches the tent, which is stacked with voter registration forms, rights restoration applications, and other “know your voting rights” literature, but he’s already registered. Twice this year he sent in registration forms, he says, but he hasn’t received his voter identification card from the county. A woman at the tent points Mr. Stuart to Khalfani, who whips out his cellphone, dials digits and then hands the phone over. Within seconds, Mr. Stuart hands Khalfani his phone back. He’ll have his voter card in a few days he’s told.
“Any issues I have with someone’s registration or restoration status, I send a call or an email to the Secretary [of the Commonwealth] and it’s resolved,” says Khalfani with complete assurance. Khalfani credits McDonnell with having “the most open and accessible” administration ever.
However, the relationship is somewhat “fragile,” one advocate tells me, and contingent upon the governor delivering on his promises—namely, processing applications in a timely manner and not shutting the advocates out.
The coalition has not abandoned the fight for automatic rights restoration, though, and some are even leery of McDonnell’s 60-day turnaround process. “Gov. McDonnell and the Secretary of the Commonwealth have stepped up their efforts and we applaud that,” says Edgardo Cortes, Advancement Project’s director of Virginia Voting Rights Coalition. “But given the way the system is set up, there is no way that any process short of automatic restoration can handle the overwhelming number of people who’ve lost their voting rights.”
’The Darkey as a Political Factor’
To El-Amin, the streamlined process is beside the point, because the law is wrong on its face. His legal argument is quite complex , but ultimately it rests on the 14th Amendment equal protection clause and the U.S. Supreme Court decision Hunter vs. Underwood . That ruling struck down part of Alabama’s criminal disenfranchisement law because it was passed during a time when white lawmakers were purposely seeking to limit black voting strength. The post-Emancipation fears of white Confederates that formerly enslaved blacks would outnumber whites, giving them electoral power, led to a number of efforts to suppress and outlaw black votes. Felony disenfranchisement was one of them, argues El-Amin.
Felony disenfranchisement laws actually pre-date Reconstruction, when they applied to both blacks and whites. But during the 1901-‘02 Virginia Constitutional Convention, a state senator named Carter Glass made clear  what the 20th century intentions of them would be:
“This plan…will eliminate the darkey as a political factor in this state in less than five years, so that in no single county…will there be the least concern felt for the supremacy of the white race in the affairs of government.”
“If African Americans were more aware of this history then we would be more protective of our right to vote,” says El-Amin. “If they understood the efforts that went into disenfranchising us then they wouldn’t want to just sit back and wait for stuff to happen.”
It sounds like the romance of a civil rights idealist, but in Richmond, he can speak this kind of truth to power because he did it. As a city councilman from 1998 to 2003, and a civil rights attorney before that, El-Amin didn’t shrink from racial justice fights. Anytime the city attempted to build something or pass a law that encroached upon Black Richmond’s legacy, he boldly flashed that legacy in their face. More importantly, he won. When the Richmond Riverfront Redevelopment Corporation attempted to hang a mural near downtown that included an image of Confederate Gen. Robert E. Lee, El-Amin had it shut down . And recently when Virginia Commonwealth University laid a parking lot over a slave burial ground site, El-Amin led a swelling coalition of civil rights activists, professors and students to dig the asphalt back up  and preserve the graveyard.
El-Amin saw VCU’s parking lot maneuver as just another sign of Virginia attempting to pave over the history of injustice towards African Americans—El-Amin’s “Get your ASS-phalt off our ancestors” slogan was the rallying cry. And while some might say this is a symbolic victory, the felony disenfranchisement battle shows how the symbols of a racist past reinforce racist policies of the present.
When McDonnell took office in 2010, he became the focus of national controversy after proclaiming April Confederate History Month —and leaving any mention of slavery out of his proclamation. The political fallout forced McDonnell to face Khalfani and the civil rights community, which ultimately led to the governor’s public commitments to expedite voting rights restoration and open access to his office.
The Pace of Change
While the McDonnell administration is duking it out with El-Amin in court, it is playing nicely with civil rights advocates on the ground. Just how nicely is a matter of perspective. Coalition members agree the 60-day turnaround period is being honored. Asked if McDonnell is making good on this, Clovia Lawrence says, “Yes, he has. I know people who had their rights restored in two weeks.”
McDonnell’s administration has approved 90 percent of the rights restoration forms it’s received from those with non-violent felony convictions, and 80 percent of those with violent felony convictions. He is on course to restore the voting rights of more felons than any governor before him, and we know these percentages and record-breaking stats because Secretary of Commonwealth Janet Kelly tells us this and newspapers havegleefully repeated it .
What we don’t know is the exact number of people who have applied. Nor do we know the number of applications denied, pending or sent back because they were incomplete or ineligible. Kelly told me “it’s impossible to pinpoint an exact figure” because some were considered incomplete or ineligible. Asked how many applications they had processed since they announced the 60-day turnaround window, Kelly responded, “All eligible applications, once deemed complete, are decided on within the Governor’s self-imposed 60 day deadline. The only reason an application would NOT be decided on in 60 days is that it is not complete. Frequently, we have to get information from outside sources (Clerks of Court,etc) to complete and verify the application. Once we receive that information, the 60 day clock starts.”
That last point must be underscored. The 60-day clock doesn’t start on the application’s post date, or even on the day that the Secretary of Commonwealth’s office receives it. In order for an application to be considered complete or eligible , a county court clerk must send the secretary a certified copy of an applicant’s sentencing order from conviction. That form is not given to the applicant. The clerk can only send that directly to the Commonwealth’s office. One advocate told me that in some cases a clerk can give an applicant a letter verifying possession of the sentencing record and their intent to send it off. Others told me that sometimes applicants seek the sentencing order from court clerks and are told it’s not on file or doesn’t exist. Until that’s reconciled, the clock doesn’t start.
There are other potential jam-ups: Some applications aren’t considered complete or eligible without a letter from a probation officer stating the probation is complete. Depending on how long it takes for that officer to write and send the letter, that can delay the clock. Then there are the criminal background checks done by state police. People with non-violent felonies have a two-year waiting period before they can apply for restoration while those with violent felonies have to wait five years. If in that waiting period you get a DUI then your waiting period starts over. So background checks are conducted to find out if a DUI exists, and that takes time.
This is why Cortes said that the current restoration process is not adequately set up to meet the needs of the 350,000 people currently disenfranchised.
‘Years in the Making’
While the Commonwealth’s office processes each application, the sole discretion of whether or not to approve restoration lies with the governor, who must sign off on every single application. An NAACP report, “Silenced in Virginia ,” says that in order to restore the rights of every felony disenfranchised person the governor would have to review one application every hour for 24 hours for 51 years. Which seems to confirm El-Amin’s summary of the chances automatic rights restoration will come through the governor or legislatively: “It’ll never happen.”
Advocates like Kennedy believe that it can happen, though, mainly because of the victories achieved by El-Amin. Citing El-Amin’s work in the slave burial ground campaign, Kennedy says, “That was years in the making. So we can’t get complacent and say it’ll never happen because I’ve seen what happens when people come together.”
Still, Kennedy understands the current reality, which is that many formerly incarcerated people won’t have their rights restored for this year’s elections. She explained this to Lukita James as she helped her with her restoration application in the Henrico library. James understood it as well, but felt it was important anyway so that she could vote in future elections.
The courage of James to go through this process as a former felon did not go unnoticed by Kennedy, especially as it was discussed before her 5-year-old son, and an unknown journalist. When Kennedy looked up James’ conviction file in an online database, with the assistance of her organizing partner Cathy Woodson, they couldn’t find it. That means the courts either lost James’ file, or James didn’t have a felony to begin with and thought she did, says Kennedy.
Many people go through life without having their rights restored, afraid or ashamed to “come out” as a felon, explains Woodson. But the racial history El-Amin is dredging up shows that many African Americans are disenfranchised not because they are criminals, but because their blackness was criminalized.
“I met a guy at a church who lost his right to vote at 18, and now he’s 60-something years old,” says Woodson. “And you know how things were for black people back then—that conviction could have been for anything. He told me that he wanted his right to vote restored before he died. He had been eligible for restoration long ago, but all that time he went without voting, he said, because he didn’t want people to know that he had a felony criminal record.”