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Virginia must protect voting rights in the state Constitution

By Cecilia Aguilera | December 26, 2021

Lost in the political analysis of Virginia’s election results and what they mean for President Joe Biden and congressional Democrats was their real-world consequences for Virginians. One critical area where they may be especially felt: the laws governing how Virginians hold their elected officials accountable.

While several Republican-led state legislatures spent their 2021 sessions trying to make it harder to vote, Virginia’s Democratic-led General Assembly took the opposite approach. Since 2020, it has modernized the commonwealth’s election code to facilitate voting, including by establishing no-excuse early and mail voting.

As a result, six times as many Virginians voted early in this year’s general election than in 2017. Overall, more voters participated than in 2017, and while many factors can influence turnout, two things are clear: Virginia voters have embraced recent election law changes, and the changes did not disadvantage Republican candidates. In fact, Gov.-elect Glenn Youngkin’s campaign even encouraged voters to take advantage of them.

Virginians are unlikely to see more laws increasing access to voting now that Republicans have re-seized control of the House of Delegates and the governorship. Hopefully, the commonwealth’s new leadership will take a page out of Kentucky’s book and work across partisan lines to adopt popular, common-sense legislation that better meets the needs of 21st century voters.

There is one piece of legislation that is too important to fail: a proposed constitutional amendment guaranteeing the freedom to vote for qualified voters and creating objective criteria for restoring the right to returning citizens who have served their time.

Earlier this year, the General Assembly passed SJ272, which would enshrine in the Virginia Constitution a fundamental right to vote for all Virginia citizens aged 18 and older who are registered to vote and who are not incarcerated for a felony. The proposed amendment makes clear that citizens who are disenfranchised because of felony convictions and who meet these requirements would not have to take further action to regain their right to vote. The amendment would also add greater protection for the voting rights of citizens with certain disabilities. Critically, as with any proposed state constitutional change, the newly elected legislature must pass SJ272 again before it can go to voters for final approval.

These changes are long overdue. Although there are many provisions of the federal and Virginia constitutions that protect aspects of the freedom to vote, none affirmatively guarantees it. This is unacceptable in one of the world’s oldest continuing republics and an insult to the thousands of Americans who have sacrificed their lives, health, and safety to promote democracy at home and abroad.

Furthermore, Virginia is one of only a few remaining states where people with felony convictions must receive the governor’s permission before regaining eligibility to vote, even for convictions that are decades old. This makes governors into monarchs, and like gerrymandering, lets politicians choose their voters. This practice is so antithetical to democratic values that the Fair Elections Center sued Florida over a similar system, winning the first court ruling in decades to hold a felon disenfranchisement scheme illegal. We also brought a lawsuit in Kentucky, which remains ongoing.

Sixty-three percent of Americans support restoring voting rights to people with felony convictions after completing their sentence, including 62% of Republicans. While Americans may deeply disagree on many issues, rights restoration is not one of them. Indeed, in 2018, voters in Florida — a state with two Republican U.S. senators and a Republican governor, and that voted for the Republican presidential candidate in 2016 and 2020 — adopted a constitutional amendment restoring the freedom to vote to people who have completed their sentences by a margin of 64%.

Whatever lawmakers’ individual views on SJ272, voters should have the final say on whether it becomes law. The General Assembly should adopt the resolution when it convenes next year and send it to the voters to decide its fate.

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Cecilia Aguilera is an attorney with Fair Elections Center, a nonpartisan voting rights and electoral reform organization in Washington, D.C.

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