Record No. 160784
IN THE
SUPREME COURT OF VIRGINIA
_______________
WILLIAM J. HOWELL, et al.,
Petitioners,
v.
TERENCE R. MCAULIFFE, et al.,
Respondents.
_______________
ON A PETITION FOR WRITS OF MANDAMUS AND PROHIBITION
BRIEF OF THE VIRGINIA STATE CONFERENCE OF THE NAACP AS
AMICUS CURIAE IN SUPPORT OF RESPONDENTS
David O. Prince, Esquire
VSB # 17044
411 East Franklin Street
Richmond, VA 23219
804-788-4861
[email protected]
Allison J. Riggs*
Southern Coalition for Social
Justice
1415 W. Highway 54, Ste. 101
Durham, NC 27707
919-323-3909
[email protected]
*Pro Hac Vice Motion Pending
Counsel for Amicus Curiae
Table of Contents
Table of Authorities .................................................................................... iii
INTEREST OF AMICUS CURIAE ............................................................... 1
SUMMARY OF THE ARGUMENT .............................................................. 3
ARGUMENT ............................................................................................... 5
I.
Virginia’s Felony Disenfranchisement Constitutional Provision is
Deeply Rooted in Racial Discrimination ................................................... 8
a. 1830 Constitution ........................................................................... 11
b. 1870 Constitution ........................................................................... 14
c. 1902 Constitution ........................................................................... 17
d. 1971 Constitution ........................................................................... 23
II. Virginia’s Felony Disenfranchisement Constitutional Provision Has a
Devastating Disparate Impact on African Americans.............................. 30
CONCLUSION .......................................................................................... 35
CERTIFICATE OF SERVICE .................................................................... 37
ii
Table of Authorities
Cases
Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir. 1990) ................... 7
Harper v. Virginia Board of Elections, 383 U.S. 663 (1966)....................... 24
Hunt v. Cromartie, 526 U.S. 541 (1999) .................................................... 26
Hunter v. Underwood, 471 U.S. 222 (1985) .............................................. 26
Personhubullah v. Alcorn, No. 3:13-cv- 00678 (E.D. Va. 2015) ................... 2
Rogers v. Lodge, 458 U.S. 613 (1982)........................................................ 6
Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252
(1977) ................................................................................................ 7, 26
Washington v. Davis, 426 U.S. 229 (1976) ................................................. 7
Statutes and Constitutional Provisions
VA. CONST. art. II, § 1 (1971) ............................................................. 5, 8, 23
VA. CONST. art. II, Sec. 23 (1902) .............................................................. 22
VA. CONST. art. III, § 1 (1870). ................................................................... 15
VA. CONST. art. III, § 14 (1830) ............................................................ 11, 13
VA. CONST. art. III, §1 (1851) ..................................................................... 14
VA. CONST. art. V, § 12 ................................................................................ 5
iii
Other Authorities
“Joint Resolution Amending the Third Article of the Constitution,” JOURNAL
OF THE SENATE OF VIRGINIA (1875)…………………………………………...16
“Members of the Virginia Commission on Constitutional Revision,” Papers
of A.E. Dick Howard for the Virginia Commission for Constitutional
Revision, 1969-1971, http://archives.law.virginia.edu/records/mss/814/digital/7950 (last visited June 24, 2016)………………………………… 24
A.E. Dick Howard, Commentaries on the Constitution of Virginia (Vol. 1,
1974)……………………………………………………………... 10, 15, 16, 23
Angela Behrens & Christopher Uggen, Ballot Manipulation and the
“Menace of Negro Domination”: Racial Threat and Felon
Disenfranchisement in the United States, 1850-2002, 109 AM. J. SOC. 559
(2003)………………………………………………………………… 27, 28, 29
Christopher Uggen, Jeff Manza, & Melissa Thompson, Citizenship,
Democracy, and the Civic Reintegration of Criminal Offenders, 605
ANNALS AM. ACAD. POL. & SOC. SCI. 281 (2006)…………………………… 35
Daniel S. Goldman, Note: The Modern-Day Literacy Test: Felon
Disenfranchisement and Race Discrimination, 57 STAN. L. REV. 611
(2004)…………………………………………………………………………. 34
Fact Sheet: Felony Disenfranchisement, THE SENTENCING PROJECT (Apr. 28,
2014)……………………………………………………………………………. 3
Hanes Walton, Jr., Sherman C. Puckett & Donald R. Deskins, Jr., The
African American Electorate: A Statistical History (2012)……………….... 9
Helen A. Gibson, Felons and the Right to Vote in Virginia: A Historical
Overview, 91 THE VIRGINIA NEWS LETTER, no. 1, Jan. 2015………….. 8, 16
iv
Jean Chung, Felony Disenfranchisement: A Primer, THE SENTENCING
PROJECT, May 10, 2016…………………………………………………….. 31
John R. Cosgrove, Four New Arguments Against the Constitutionality of
Felony Disenfranchisement, 26 T. JEFFERSON L. REV. 157 (2004)……… 25
Marc Mauer & Tushar Kansal, Barred for Life: Voting Rights Restoration In
Permanent Disenfranchisement States, THE SENTENCING PROJECT,
February 2005……………………………………………………………….. 34
Matt Ford, The Racist Roots of Virginia’s Felon Disenfranchisement, THE
ATLANTIC, Apr. 27, 2016…………………………………………………….. 23
MINUTES OF THE COUNCIL AND GENERAL COURT OF COLONIAL VIRGINIA, 16221632, 1670-1676, 466 (H. R. McIlwaine ed., 1924)………………………. 10
Political Affairs in Virginia: The Adoption of the Constitutional Amendments
– Rather Sharp Practice of the Conservatives – General Notes, N.Y.
TIMES, Nov. 28, 1876………………………………………………………… 17
Proceedings and Debates of the Virginia State Convention of 1829-1830
(Richmond, Samuel Sheperd & Co. 1830)……………………………. 12, 13
Register of the Debates and Proceedings of the Virginia Reform
Convention (1851)……………………………………………………….. 14, 15
Report of the Proceedings and Debates of the 1901-02 Constitutional
Convention: State of Virginia 598 (1906)……………………. 18, 19, 20, 22
Richard L. Hume, The Membership of the Virginia Constitutional
Convention of 1867-1868: A Study of the Beginnings of Congressional
Reconstruction in the Upper South, 86 THE VIRGINIA MAGAZINE OF HISTORY
AND BIOGRAPHY 461 (Oct., 1978)…………………………………………… 15
v
Spike Bradford, Virginia’s Justice System: Expensive, Ineffective and
Unfair, JUSTICE POLICY INSTITUTE, Nov. 2013…………………….. 30, 32, 33
William W. Hening, ed., The Statutes at Large (Vol. 1, 1823)……………… 9
William W. Hening, ed., The Statutes at Large (Vol. 3, 1823)……………… 9
William W. Hening, ed., The Statutes at Large (Vol. 4, 1820)……………… 9
Wythe W. Holt, Jr., The Virginia Constitutional Convention of 1901-1902,
76 Va. Mag. Hist. & Biog. 67 (1968)……………………………………….. 18
vi
INTEREST OF AMICUS CURIAE
The National Association for the Advancement of Colored People is
one of the oldest and largest civil rights organizations in the United States.
The Virginia State Conference of the NAACP (hereinafter, “Virginia
NAACP”), headquartered in Richmond, is a non-partisan, non-profit
membership organization with more than one hundred active branches and
approximately 16,000 members throughout the Commonwealth of Virginia.
One of the priorities of the Virginia NAACP is to advance and defend
the voting rights of its members, including the right to be free from racial
discrimination in voting and to elect candidates of their choice at every
political level. To that end, the Virginia NAACP has engaged in a variety of
public education and community outreach activities to help assure that
minority voters have an equal opportunity to participate in the election
process. Additionally, the Virginia NAACP has regularly engaged in
litigation in Virginia state and federal courts and in the Fourth Circuit to
challenge voting laws and practices that deny or abridge the rights of
African Americans to fully participate in this state’s political system.
Most recently, in 2015, the Virginia NAACP participated as an
interested party in the remedy stage of a congressional redistricting case,
submitting a remedial plan to the court. Personhubullah v. Alcorn, No.
1
3:13-cv- 00678, ECF No. 227 (E.D. Va. Sept. 9, 2015) (Brief in Support of
the Proposed Congressional Redistricting Plan filed by Virginia State
Conference of NAACP Branches). The Virginia NAACP engaged in this
litigation to ensure that its members, living in every congressional district in
the state, did not have their votes, and their voices, diminished in Virginia’s
congressional delegation. And the Virginia NAACP ensured just that, as
the remedial plan adopted by that court incorporated all of the important
elements of the remedial plan proffered by the Virginia NAACP.
Personhuballah, ECF No. 273 (Nov. 17, 2015) (Special Master’s Remedial
Plan Report); ECF No. 299 (Jan. 7, 2016) (Order on Remedial Plan).
The Virginia NAACP, under the leadership of the national NAACP,
has been a leading voice against practices that disenfranchise individuals
who have been involved in the criminal justice system. Such practices,
deeply rooted in racial resentment in this country, disproportionately
exclude people of color. In 2012, as a part of a national campaign to
eliminate felony disenfranchisement, the NAACP released a report entitled,
“Silenced in Virginia: Citizens Without a Vote.” See Exhibit A. This report,
in addition to recounting the shameful and intertwined history of racial
discrimination and felony disenfranchisement in the Commonwealth,
extensively documents the disparate impact that Virginia’s extreme felony
2
disenfranchisement provision has on African Americans.
Id.
Given its
leadership in this area, and the unique burden borne by its members, the
Virginia NAACP offers this analysis of the racial history and implications of
the Commonwealth’s felony disenfranchisement provision in hopes that it
will provide important context for this Court’s consideration of the matter
presented to it.
SUMMARY OF THE ARGUMENT
Virginia is an extreme outlier—it is one of only four states (including
Florida, Iowa, and Kentucky) whose constitutions call for the permanent
disenfranchisement of all individuals convicted of any felony absent action
from the executive or other authorized party to provide clemency. Fact
Sheet: Felony Disenfranchisement, THE SENTENCING PROJECT (Apr. 28,
2014). This exceptionalism is not to be celebrated.
And not only has
Virginia been among the most extreme of states in its laws on felony
disenfranchisement, it is further out of the mainstream in its failure to take
substantive actions to revise its approach. From 1997 until 2014, 23 states
modernized and relaxed their felony disenfranchisement laws, but Virginia
was
not
one
of
them.
See
Exhibit
B,
Overview
Disenfranchisement in Virginia, VIRGINIANS FOR RESTORATION
of
Felon
OF
VOTING
RIGHTS, Jan. 2013. Only Florida has a higher number of African Americans
3
who are disenfranchised. Id. Virginia has achieved this dubious status of
being among the very few states to so deprive its citizens of their
constitutional rights via a long history of intentional suppression of minority
voting rights.
For most of the Commonwealth’s existence as a state,
drafters of its laws and constitutions have explicitly linked race and
criminality in their attempts to deny the franchise to black Virginians. And
this painful part of Virginia’s history has been effective, historically and
today, in excluding voters of color from the political process.
The purposeful retention of the Commonwealth’s constitutional felony
disenfranchisement provision in modern times is directly related to the fact
that
Virginia’s
criminal
justice
system
consistently
operates
to
disproportionately disadvantage African-Americans through discretionary
decisions ranging from over-policing certain neighborhoods compared to
others, to granting more lenient dispositions to white offenders as
compared to African-Americans.
Indeed, discretionary decisions at every
level of the criminal justice system determine who will be arrested,
prosecuted, and, ultimately, convicted for violations of the law, and those
discretionary decisions intersect with racial bias in a way that explains the
ultimately racially discriminatory effect of the state’s constitution.
4
That
intersectionality should also inform this Court’s understanding of the
reasons that provision has been perpetuated.
Ultimately, though, this Court is not being asked to rule that Art. II, § 1
of the Virginia Constitution violates either the Equal Protection Clause of
the Fourteenth Amendment to the United States Constitution or the Voting
Rights Act of 1965.
Rather, the question more simply is whether the
Governor, acting within his authority under Art. V, § 12, can take into
account equitable considerations such as Virginia’s long and sordid history
of discrimination against black voters, and the racially discriminatory effect
wrought by the repeated re-adoption of the state’s constitution ban on
voting for those who have been involved in the criminal justice system. The
answer is that he can, he should, and he did. This Court now should
abstain from reversing this important progress toward racial justice.
ARGUMENT
Virginia’s felony disenfranchisement provision is a continuing
embodiment of the racially discriminatory intent woven through the
Commonwealth’s Constitution throughout its historical evolution. Contrary
to arguments advanced by Petitioners and Amici supporting Petitioners, the
fact that to date the Commonwealth’s felony disenfranchisement provision
has not been struck down as violative of either the Fourteenth Amendment
5
or the Voting Rights Act does not prevent the Governor from appropriately
taking into account all the evidence of Virginia’s attempts to disenfranchise
voters of color, including through this particular constitutional provision.
The Governor is not legally required to prove a violation of federal law
based on improper racially discriminatory intent—legally, a very high
hurdle—when
exercising
his
constitutionally-afforded
clemency
prerogatives.
Importantly, even though the Governor is not held to the standard of
proof demanded of a plaintiff trying to prove that legislation was
intentionally discriminatory, courts have long recognized that “[e]vidence of
historical discrimination is relevant to drawing an inference of purposeful
discrimination, particularly ... where the evidence shows that discriminatory
practices were commonly utilized, that they were abandoned when
enjoined by courts or made illegal by civil rights legislation, and that they
were replaced by laws and practices which, though neutral on their face,
serve to maintain the status quo.” Rogers v. Lodge, 458 U.S. 613, 625
(1982). The continuation of facially neutral practices that have been shown
to have a disparate impact on minority voters can serve the same purpose
as the adoption of those practices in the first place.
6
And while not central to the claims in this case, racial discriminatory
intent has never been required to be the sole motivator when a law has
been challenged as intentionally discriminatory. Instead, under the Equal
Protection
Clause
framework,
challengers
need
only
prove
that
discriminatory intent was a “substantial or motivating factor.” Village of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264-65 (1977)
(“[Washington v. Davis, 426 U.S. 229 (1976)] does not require a plaintiff to
prove that the challenged action rested solely on racially discriminatory
purposes. Rarely can it be said that a legislature or administrative body
operating under a broad mandate made a decision motivated solely by a
single concern, or even that a particular purpose was the ‘dominant’ or
‘primary’ one.”). Furthermore, a finding of racial discrimination in the Equal
Protection context does not even require racial animus—that is, prohibited
intentional discrimination does not need to be “based on any dislike,
mistrust, hatred or bigotry against” minority voters in order to be prohibited.
Garza v. County of Los Angeles, 918 F.2d 763, 778 (9th Cir. 1990)
(Kozinski, J., concurring).
Instead, preservation of power amongst a
dominant group, when it runs “roughshod over the rights of protected
minorities,” can suffice to establish intentional discrimination. Id. This is
significant particularly in the latest revision of the constitution, where racial
7
prejudices took a more subtle form. But regardless of the form, felony
disenfranchisement
in
the
Commonwealth
was
rooted
in
racial
discrimination—racial discrimination that persists today and is facilitated by
Art. II, § 1, of the state constitution. The Governor took an important step
toward righting this wrong.
I.
Virginia’s Constitutional Provision Disenfranchising People
Convicted of a Felony is Deeply Rooted in Racial
Discrimination
Petitioners and amicus supporting them claim that because the state
constitutional disenfranchisement of persons with felony convictions
predates African American exercise of the franchise in Virginia, racial
discrimination could not possibly have been or continue to be a motivation
for the adoption and retention of that constitutional provision. This is wrong
for a number of reasons. First, early strains of discrimination that would
later develop into racially discriminatory felony disenfranchisement
provisions in the state constitution were detectable in colonial Virginia.
Helen A. Gibson, Felons and the Right to Vote in Virginia: A Historical
Overview, 91 THE VIRGINIA NEWS LETTER, no. 1, Jan. 2015 at 2. Colonial
laws established different levels of crime and sentencing for black and
white residents. For example, a 1699 act made hog stealing by slaves a
8
felony, which was a departure from the common law. William W. Hening,
ed., The Statutes at Large 179 (Vol. 3, 1823).
It is over-simplistic to assume that the African-American electorate
did not exist prior to the Fifteenth Amendment, thus omitting any analysis of
the racial intent and effect of provisions in earlier state constitutions or
laws. Virginia was the first state to allow women, including “Free-Womenof-Color,” to vote, from 1626 to 1699. Hanes Walton, Jr., Sherman C.
Puckett & Donald R. Deskins, Jr., The African American Electorate: A
Statistical History 54 (2012). Moreover, it was not until 1723 that Virginia
outlawed voting by people of color. William W. Hening, ed., The Statutes at
Large 131-39 (Vol. 4, 1820). There is some evidence that free black men
voted in colonial elections prior to that. Walton, supra, at 57. Indeed, an
act in 1646 imposed a fine on all freemen except covenanted servants if
they failed to vote, making voting compulsory for any free man, regardless
of race.1 In 1658, the assembly permitted “all persons inhabitting in this
collonie that are freemen to have their votes in the election of Burgesses.”2
Additionally, Virginia’s first constitution in 1776 did not enumerate suffrage
requirements or restrictions.
A.E. Dick Howard, Commentaries on the
1
William W. Hening, ed., The Statutes at Large, 333-34 (Vol. 1, 1823)
(describing Chapter XX, a 1646 act).
2
Id. at 475.
9
Constitution of Virginia 338 (Vol. 1, 1974).
Thus, in the years before
Virginia first adopted a constitutional provision disenfranchising persons
involved in the criminal justice system, the colonial government’s views on
race and voting and race and criminality were still solidifying. Early laws
and constitutional provisions should thus be viewed in this context, rather
than simplistically assuming that
because African Americans were not
formally afforded the right to vote until after the Civil War, racially
discriminatory considerations could have played no role in the state’s
constitutional restrictions to suffrage.3
Additionally, in every constitutional revision after 1776, racial
prejudices, implicit and clearly articulated, played a substantial role in the
3
Even before the 1723 act explicitly disenfranchising African Americans,
during which time suffrage requirements were limited to freeman status and
property, supra at 9, racially disproportionate sentencing for runaway Black
servants in Virginia, compared to servants of European descent, deprived
them of the possibility of voting in the future by sentencing them to lifelong
slavery rather than extending servitude for a few years. In this way,
sentences reserved for Black runaways only imposed a kind of “civil death”
on African Americans analogous to those later imposed by felony
convictions. See In Re Negro John Punch (July, 1640), reprinted in
MINUTES OF THE COUNCIL AND GENERAL COURT OF COLONIAL VIRGINIA, 16221632, 1670-1676, 466, 466 (H. R. McIlwaine ed., 1924) (“[O]ne called
Victor, a dutchman, the other a Scotchman, called James Gregory, shall
first serve out their times with their masters according to their Indentures,
and one whole year apiece after the time of their service is Expired… and
after that service… to serve the colony for three whole years apiece, and
that the third being a negro named John Punch shall serve his said master
or his assigns for the time of his natural Life here or elsewhere.”).
10
development of suffrage policies. Tracking the history of the changes to
the state’s constitutional provisions on felony disenfranchisement reveals
that racial prejudice relating to voting and criminal justice developed
together,
and
intersected
in
an
incredibly
harmful
way
in
the
Commonwealth’s constitutional restrictions on voting for those convicted of
felonies or infamous offenses.
a. 1830 Constitution
Racial animus was indelibly woven into the fabric of Virginia’s 1830
constitution, including its felony disenfranchisement provision, even though
African Americans were not at that point in time legally afforded the right to
vote. Although by state law only free white men were allowed to vote, the
1830 Constitution enshrined in the state’s constitution that racial
precondition for exercising the franchise. VA. CONST. art. III, § 14. This was
significant because that racial distinction was not present in the 1776
constitution.
Perceived racial threat was a strong motivator in the 1830
constitution, specifically with regard to discussions of apportionment. This
is important context for understanding the intent of drafters to exclude
persons of color from the political process at any level, including even in
representation.
In debates on the weight to be afforded to slaves in
11
apportioning representatives, James Madison commented upon “that
peculiar feature in our community, which calls for a peculiar division in the
basis of our Government, I mean the coloured part of our population.”
Proceedings and Debates of the Virginia State Convention of 1829-1830, at
538-39 (Richmond, Samuel Sheperd & Co. 1830) (statement of James
Madison).
Former President Madison, in his role as a delegate to the
constitutional convention, urged the “Federal Number” or three-fifths
apportionment compromise to appease both eastern plantation owners and
the white free men in western parts of the state, where “the tide of the black
population moves westward; and it increases more rapidly in the west, than
in any part of the State.” Id. at 144-45. President Madison stated: “I am
against offering a premium to induce our laboring white people to leave our
soil. I would have that class of community retained and encouraged among
us, as the best means of preventing the disproportionate increase of the
slaves.” Id. Madison’s compromise failed, but this early perceived political
threat of African American population is important context for examining the
introduction of the felony disenfranchisement provision and its racial
implications.
The 1830 Constitution marked the introduction of the felony
disenfranchisement provision, which automatically disqualified from voting
12
“any person of unsound mind, or who shall be a pauper, or a
noncommissioned officer, solider, seaman or marine in the service of the
United States, or…any person convicted of an infamous offence.”
VA.
CONST. art. III, § 14.
However, there was already substantial discussion of the perceived
link between free African Americans and crime.
In debate, Governor
William Giles, a participant in the 1829-1830 convention, referred to a study
of the race and numbers of individuals in the state Penitentiary.
He
concluded that the study, which reported larger numbers of African
Americans incarcerated as compared to whites, confirmed the “highly
honorable…present moral condition of the white population of Virginia,”
particularly when compared to other states. Id. at 910-11 (Statement of
William B. Giles). Governor Giles went on to highlight that, “the number of
the convictions of the free coloured, is about four times greater, according
to numbers, then either the free white, or coloured slave population.” Id.
Thus, the state’s first felony disenfranchisement constitutional provision
emerged in a context where (1) the state’s criminal laws where developing
in a manner to impose harsher criminal sanctions on African Americans; (2)
constitutional drafters were explicitly linking race and criminality in the
discussion of suffrage; and (3) the political threat of the mere presence of
13
African Americans was becoming a central point of concern for the
constitutional drafters. Racial prejudices and discrimination thus have been
part of Virginia’s felony disenfranchisement policy considerations from the
very beginning.
b. 1870 Constitution
Virginia adopted a new constitution in 1851 extending the suffrage to
all white males of voting age, but the felony disenfranchisement provision
remained unchanged except for the addition of “conviction of bribery in an
election” to the infamous offenses that disqualified a citizen from voting.
VA. CONST. art. III, §1 (1851).
Despite this consistency, the racial
prejudices that underpinned that provision remained clear. A resolution
adopted unanimously by the people of Pocahontas County declared “we
believe the fundamental doctrine of Republicanism to be, that the white
population of the State is the sole depository of political power.” Register of
the Debates and Proceedings of the Virginia Reform Convention 57 (1851).
A delegate from Greenbrier, in discussing apportionment, opined, “that a
majority of the community hath an indubitable, unalienable and indefeasible
right to reform, alter or abolish the government,” but when discussing the
composition of that community, declared, “A community of freemen and
14
slaves?...The supposition cannot be made or entertained for a single
moment.” Id. at 288 (Statement of Ballard Smith).
Following the end of the Civil War and the ratification of the Fifteenth
Amendment, however, Virginia was required to adopt a new constitution
that did not grant or deny suffrage on the basis of race as a condition for its
re-admittance into the Union. Howard, Commentaries, supra, at 328-29.
Many resentful former Confederates refused to participate in this
constitutional convention in order to protest the federal freeing and
enfranchising of slaves, and delegates from outside the South participated
in the drafting.
Richard L. Hume, The Membership of the Virginia
Constitutional Convention of 1867-1868: A Study of the Beginnings of
Congressional Reconstruction in the Upper South, 86 THE VIRGINIA
MAGAZINE
OF
HISTORY
AND
BIOGRAPHY 461, 463-67 (Oct., 1978).
The
convention was led by Judge John Underwood, an ardent Abolitionist, and
under his leadership and with outside involvement, racial resentment in the
written records of the convention was to some extent muted. Id. The
constitution’s felony disenfranchisement provision was altered only slightly
to articulate a few specific offenses that would result in disenfranchisement
and to replace the term “infamous offence” with “felony.” VA. CONST. art. III,
§ 1 (1870).
15
Virginia’s compliance with reconstruction legislation and the Fifteenth
Amendment was grudging.
From 1874 on, every legislative session
included efforts to amend the constitution or call another constitutional
convention, in large part because of fears that African-American voters
would begin to exercise real political power and affect election outcomes.
Howard, Commentaries, supra, at 329.
And the Commonwealth’s
compliance with the Fifteenth Amendment was quickly undermined in a
formal way by an 1876 Amendment to the Constitution.
The Virginia
General Assembly passed a joint resolution in 1875 to amend the
constitution, adding the words “or petit larceny” to the provision
disenfranchising
“[p]ersons
convicted
of
bribery
embezzlement of public funds, treason or felony.”
in
any
election,
“Joint Resolution
Amending the Third Article of the Constitution,” JOURNAL OF THE SENATE OF
VIRGINIA 41-42 (1875). Petit larceny was a crime to which former slaves
were believed to be prone.
Gibson, Felons and the Right to Vote in
Virginia, supra, at 3. A New York Times article at the time noted the racial
animus behind its adoption:
The principal provisions of the amendments, aimed
at colored Republicans, are requiring payment of
the State capitation tax as a condition to voting, and
the disenfranchisement of all persons convicted of
petit larceny. How this last will work was recently
16
illustrated by a case in the neighboring City of
Manchester, where a colored youth was found guilty
of petit larceny by a jury on proof he entered
somebody’s orchard and gathered a few apples!
Political Affairs in Virginia: The Adoption of the Constitutional Amendments
– Rather Sharp Practice of the Conservatives – General Notes, N.Y. TIMES,
Nov. 28, 1876. Thus, even in this Reconstruction era, the Commonwealth
was determined to use the state’s felony disenfranchisement provision in a
racially discriminatory manner.
c. 1902 Constitution
But to the extent that any debate can reasonably be entertained on
whether
racial
discrimination
motivated
Virginia’s
felony
disenfranchisement provision in its earliest constitutional forms, that debate
plainly ends with the 1902 Constitution. The racial hostility that marked the
1901-02 Constitutional Convention was openly communicated by delegates
to the convention, and commented upon without dispute by historians
looking at that convention.
One historian noted that “[i]t should be
reasonably clear to the most casual reader of [the constitutional convention
debates]
that
the
pervading
issue
disenfranchisement of the Negro.”
at
the
Convention
was
Wythe W. Holt, Jr., The Virginia
Constitutional Convention of 1901-1902, 76 Va. Mag. Hist. & Biog. 67, 94
17
(1968).
One delegate to the convention specifically articulated the
convention’s goal was to “strike from the suffrage the alien and the enemy
in Eastern Virginia and at the same time leave untouched the worthy but
illiterate Anglo-Saxon of the mountain side and to the west beyond.” 1
Report of the Proceedings and Debates of the Constitutional Convention:
State of Virginia 598 (1906) (Statement of Walter A. Watson).
Reconstruction resentment had been percolating strongly in the years since
the passage of the Fifteenth Amendment
and adoption of the
Commonwealth’s first post-Reconstruction constitution. That resentment
boiled over during this turn of the century constitutional convention.
In their determination to fully implement Jim Crow measures in
Virginia, Convention delegates did not hesitate to voice their continuing
displeasure with the federal government’s actions to protect the rights of
black voters. One delegate proclaimed:
[T]he dominant party in Congress not only
committed a stupendous blunder, but a crime
against civilization and Christianity, when, against
the advice of their wises leaders, they required the
people of Virginia and the South, under the rule of
bayonet, to submit to universal negro suffrage.
Id. at 20 (Statement of John Goode). Delegates made clear their intent to
circumvent the spirit of federal law with statements such as these: “I want
18
to put reasonable and fair restrictions on suffrage and restrictions that will
reach more of them than of whites. Why? Because they are not equal to
the whites and will not be as able to comply with the requirements. I want
restrictions placed upon them that will be according to law.” Id. at 272
(Statement of J.C. Wysor).
Delegate Wysor further explained:
The capitation tax as a prerequisite for voting will
have a twofold usefulness. It will raise revenue for
the public schools and have a tendency to purge
and purify the electorate. It will not do away with
the negro as a voter altogether, but it will have the
effect of keeping numbers of the most unworthy and
trifling of that race from the polls. I do not know of
anything better in view of the fifteenth amendment.
To silence if possible the fear of negro domination, I
have provided that no negro shall be eligible to any
office in the State of Virginia.
Id. at 604.
Perhaps the most damning exchange in the constitutional
convention was between Carter Glass, a delegate from Lynchburg, and
A.L. Pedigo, a delegate from Preston, where Mr. Glass made plain the
discriminatory intent infecting all the suffrage restrictions in the 1902
Constitution:
Mr. Carter Glass: [T]he article of suffrage which the
Convention will to-day adopt does not necessarily
deprive a single white man of the ballot, but will
inevitably cut from the existing electorate four-fifths
19
of the negro voters. (Applause.) That was the
purpose of this Convention; that will be the
achievement.
Mr. Pedigo: Will it not be done by fraud and
discrimination?
Mr. Glass: By fraud, no; by discrimination, yes. But
it will be discrimination within the letter of the law,
and not in violation of the law. Discrimination! Why,
that is precisely what we propose; that, exactly, is
what this Convention was elected for—to
discriminate to the very extremity of permissible
action under the limitations of the Federal
Constitution, with a view to the elimination of every
negro voter who can be gotten rid of, legally, without
materially impairing the numerical strength of the
white electorate. As has been said, we have
accomplished our purposes strictly within the
limitations of the Federal Constitution by legislating
against the characteristics of the black race, and not
against the “race, color or previous condition” of the
people themselves.
Id. at 3076-77 (Vol. 2) (Statement of Carter Glass).
Delegate Glass
understood the long-term ramifications of this Constitutional revision, noting
“[t]his 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.” See
Ex. A at 3.
20
Two of the primary tools that the constitutional drafters utilized to
achieve their goal of excluding black citizens from the franchise were the
poll tax and literacy test.
But the transcripts from the constitutional
convention make clear that some delegates did not consider the poll tax
and literacy tax enough and that the continuation and expansion of felony
disenfranchisement
was
necessary
to
maintain
African-American
disenfranchisement in the post-Fifteenth Amendment world. Delegates to
this convention explicitly linked African Americans to the category of
individuals denied suffrage because of felony convictions, with one
delegate explaining:
[T]the records show that crime is increasing much
more rapidly among the negroes than among the
whites. … [T]the last census of 1890 shows that in
the Southern States there were six white prisoners
to every 10,000 whites and twenty-nine negro
prisoners to every 10,000 negroes….showing that
since these people have been made free, instead of
improving, the records of crime show that they are
retrograding…I would accord to the negro every
right that is accorded to the Saxon…but I would not
give him the right to govern the man of superior
integrity, superior intelligence and superior worth.
This record shows, and the records of your own
penitentiary will show the same thing, that negro
crime is increasing.
21
Id. at 3061-62 (Statement of B.T. Gordon). Another delegate specifically
linked race and criminality in his city, claiming that:
[T]here have been 12,000 people incarcerated in
the State’s prison within the limits of this city, 9,700
of whom have been from this race. With only a third
of the population of this Commonwealth black,
crime among these people, by the census of 1890,
is seven and a fraction times more than among
white people.
Id. at 1222 (Vol. 1) (Statement of Walter A. Watson). Thus, fears of black
criminality infused the convention and informed the reenactment of the
felony disenfranchisement provision.
On this basis, that constitutional provision was retained and changed
to the following:
The following persons shall be excluded, from
registering and voting: Idiots, insane persons, and
paupers; persons who, prior to the adoption of this
Constitution, were disqualified from voting, by
conviction of crime, either within or without this
State, and whose disabilities shall not have been
removed; persons convicted after the adoption of
this Constitution, either within or without this State,
of treason, or of any felony, bribery, petit larceny,
obtaining money or property under false pretences,
embezzlement, forgery or perjury…
VA. CONST. art. II, Sec. 23 (1902). This represented a significant expansion
of the crimes that would result in disenfranchisement.
22
Matt Ford, The
Racist Roots of Virginia’s Felon Disenfranchisement, THE ATLANTIC, Apr.
27, 2016; see also, Howard, Commentaries, supra, at 340. And with all its
attacks on the African-American electorate, including via the felony
disenfranchisement provision, the 1902 Constitution had its desired
effect—within 90 days after it went into effect on July 10, 1902, more than
125,000 of the 147,000 African American voters in the Commonwealth had
been removed from the voter rolls. See Ex. A, at 3.
d. 1971 Constitution
The 1971 constitution did not erase the taint of racial animus from the
continuation of the state’s racially discriminatory ban on voting for those
convicted of a felony.
Without impugning the drafters of the 1971
Constitution, it is clear that past discriminatory intent carried into the
present in the failure to substantially reform or ameliorate the constitutional
provision at question here. By 1971, it was clear both that earlier versions
of the provision had been motivated by discriminatory intent, and racially
disparate impact was still plainly evident.
In the 1971 Constitution, the provision was changed to state: “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.” Va. Const. art. II, § 1 (1971). The enactment of the Civil Rights
23
Act of 1964, the Voting Rights Act of 1965, and the ratification of the
Twenty-Fourth Amendment, among other federal law changes, crystalized
the need to revise the state constitution in 1971.
The Twenty-Fourth
Amendment outlawed the use of poll taxes as a precondition for voting in
federal elections, the United States Supreme Court extended that
prohibition to any election in Harper v. Virginia Board of Elections, 383 U.S.
663 (1966). The Civil Rights Act and the Voting Rights Act sharply limited
the situations in which a state could lawfully use a literacy test as a
precondition to voting, particularly in states where it had been used to keep
African Americans from voting, and in a 1970 amendment to the Voting
Rights Act, Congress banned literacy tests in all states. Pub. L. No. 91285, 84 Stat. 315 (1970).
Thus, the removal of the literacy test and poll taxes from the Virginia
Constitution in 1971 was predetermined by federal actions and cannot be
credited to the racial benevolence of the almost entirely white delegation4
of drafters of the 1971 constitution—those provisions were plainly illegal
after the enactment of the Voting Rights Act of 1965 and the Harper
4
Oliver W. Hill was the one African-American member of the 16-member
1971 Constitutional Commission. See “Members of the Virginia
Commission on Constitutional Revision,” Papers of A.E. Dick Howard for
the Virginia Commission for Constitutional Revision, 1969-1971,
http://archives.law.virginia.edu/records/mss/81-4/digital/7950 (last visited
June 24, 2016).
24
decision. Additionally, the removal of disenfranchisement for non-felony
offenses likewise did not erase from the provision the discriminatory
purpose behind it. By this point, disparate treatment of African Americans
within the Virginia criminal justice system was well-established. John R.
Cosgrove, Four New Arguments Against the Constitutionality of Felony
Disenfranchisement, 26 T. JEFFERSON L. REV. 157, 173-79 (2004). Despite
the fact that many of the crimes listed in the 1902 constitutional provisions
could have been misdemeanors or felonies, depending on the amount
involved in the property crime, Virginia courts had, since 1931, held that a
misdemeanor conviction did not deprive the convicted of his right to vote.
Young v. Commonwealth, 155 Va. 1152 (1931); see also, Howard,
Commentaries, supra, at 345-47.5
5
The argument that because African-American voters overwhelmingly
supported the ratification of the 1971 Constitution, see Brief of Former
Attorneys General of Virginia as Amici Curiae in Support of Petitioners, at
23, the retention of the felony disenfranchisement provision could not have
been discriminatory is logically unsound. Revisions in the 1971
Constitution were submitted to the people in the November 1970 election
as four balloted amendments—one revising the body of the constitution,
one repealing the Constitution’s lottery prohibition, and two related to
borrowing by the Commonwealth. Foreword, Constitution of Virginia, at III,
available at http://hodcap.state.va.us/publications/Constitution-01-13.pdf.
Voters did not have the choice to employ a “line-item veto” for any
particular revision to or retention of a provision to the body of the
Constitution. Id. African-American voters undoubtedly did support the
25
Importantly, the lack of direct statements of racial animus in the
proceedings leading up to the adoption of the 1971 constitution does not
mean that racial prejudice was not still operating in a very powerful way in
the decision to retain such a restrictive form of felony disenfranchisement.
In modern-day legislation, it is very rare to have the “smoking gun”
evidence that laid bare the intentions of earlier constitutional delegations
and debates.
Hunt v. Cromartie, 526 U.S. 541, 553 (1999) (“Outright
admissions of impermissible racial motivation are infrequent and plaintiffs
often must rely upon other evidence.”).
But that is not dispositive of
whether racial discrimination is a motivating factor. Arlington Heights, 429
U.S. at 266. Instead, even the United States Supreme Court itself has
recognized that enactment based racially discriminatory intent, despite
some later ameliorative actions, does not erase that earlier unconstitutional
intent. See Hunter v. Underwood, 471 U.S. 222, 233 (1985) (noting that
despite intervening events that narrowed the scope of the Alabama
Constitution’s criminal disenfranchisement provision, the original enactment
was motivated by a desire to discriminate against African Americans, it
continued to have that effect, and it thus violated the Equal Protection
removal of the literacy tests and poll tax requirement for suffrage from the
Constitution, but would have no way to indicate disapproval of the felony
disenfranchisement provision.
26
Clause). While the 1971 constitutional revision process was not marked
with the same naked racial antagonism as the 1902 convention, that does
not mean that Virginia’s decision to retain the felon disenfranchisement
provision was free of racial motivations. In the last few decades, and even
at the time of the last constitutional revision, the national trend was toward
liberalization of felony disenfranchisement laws, with many states repealing
restrictions on former offenders in whole or part. The 1960s and 1970s, in
particular, saw many states moving to undo the harm wrought by these
discriminatory measures. For example, Virginia’s neighbor to the south,
North Carolina, had a permanent felony disenfranchisement provision in its
1876 constitution.
But in 1971, it changed the law to permit former
offenders to vote after a two-year waiting period, and in 1973, it completely
repealed the disenfranchisement of former offenders by providing for the
automatic restoration of the right to vote upon completion of the felony
sentence. Angela Behrens & Christopher Uggen, Ballot Manipulation and
the
“Menace
of
Negro
Domination”:
Racial
Threat
and
Felon
Disenfranchisement in the United States, 1850-2002, 109 AM. J. SOC. 559,
591 (2003). As mentioned earlier, since 1947, 23 states have repealed
laws permanently disenfranchising those with felony convictions. Id. Even
27
more recently, since 2000, Delaware, Maryland, Nevada and Wyoming
abandoned permanent disenfranchisement laws. Id. at 583.
The discriminatory significance of Virginia’s failure to remove or
lessen the severity of the state constitution’s felony disenfranchisement
provision, particularly in light of the strong trend nationwide, can be best
understood using the study of perceived racial threats in sociology.
Sociologists have now articulated theories of perceived racial or ethnic
threat to explain laws that are facially neutral but act to restrict minority
voting power. Behrens, Ballot Manipulation, supra, at 573. Historically,
that means that majority groups (white voters, most often) may advocate
for or maintain laws that act as political restrictions on racial minorities, a
threat to their dominance, in order to diminish that threat. Id. Racial threat
theory, as applicable in the felony disenfranchisement arena, has been
described in the following way:
Race prejudice operates as a collective process,
whereby racial groups project negative images onto
one another that reinforce a sense of exclusiveness.
One particularly salient image that may be projected
onto an ethnic or racial group is that of “criminal,”
linking
race
and
crime
in
public
consciousness….Felon disenfranchisement thus
remains a potentially effective means to neutralize
political threats from African-American voters.
28
Id. at 574 (internal citations omitted).
Hypothesizing that there may be a connection between the racial
composition of a state’s incarcerated population and its felony voting bans,
scholars recently looked at national re-enfranchisement efforts from 1940
to 2002 to determine whether racial threat “played a continuing role in the
recent movement toward restoring the vote to ex-felons.” Id. at 576. That
is, the scholars examined some of the geographic, demographic and
political factors in states that relaxed their felony disenfranchisement laws
to see if any trends were identifiable. Id. at 591-94.
Behrens et al. found that a high percentage of African Americans
among a state’s incarcerated population was a strong negative predictor of
whether a state would abolish or liberalize its felony disenfranchisement
laws.
Id. at 599.
They further found only “weak effects of political
partisanship in [their] reenfranchisement analysis.” Id. They concluded
that
their
“results
suggest
that one
of
the
reasons
that
felon
disenfranchisement laws persist may be their compatibility with modern
racial ideologies.” Id. at 598.
Looking to Virginia, this explanation of how racially discriminatory
ideologies motivate the retention of such disenfranchising provisions makes
perfect sense. Recent data indicates that 60.8% of state prison inmates
29
are African American—put another way, for every white person
incarcerated in the Commonwealth, six African Americans are imprisoned.
Spike Bradford, Virginia’s Justice System: Expensive, Ineffective and
Unfair, JUSTICE POLICY INSTITUTE, Nov. 2013, at 1.
This disparity in
incarceration of African Americans is above the national average. Id. at 12.
This high percentage of incarcerated African Americans thus feeds
perceived racial fears and may be a contributing factor to the decision to
retain the felony disenfranchisement provision in the state Constitution.
Thus, even absent the ugly language and sentiments that marked the
1901-1902 constitutional convention, it is, in fact, quite reasonable to infer
that racial fears and prejudices continue to drive state policy, including the
continued permanent disenfranchisement of a group of people who are
predominantly people of color. It is in this historical context in which the
Governor’s executive order plays such an important role in moving the
state past its own sordid history of racial discrimination and its implicit racial
biases still at play today.
II.
Virginia’s
Felony
Disenfranchisement
Constitutional
Provision Has a Devastating Disparate Impact on African
Americans
Nearly two hundred years of a policy that excludes from the franchise
those whose lives have been affected by a racially discriminatory criminal
30
justice system has produced dramatic effects. The Commonwealth denies
the franchise to more than 450,000 citizens who have been convicted, at
some point in time, of a felony; however, nearly 352,000 of those citizens
are not incarcerated, but are instead citizens living and working in their
communities across the state. Ex. A, at 4.
The most recent estimates indicate that of the more than 450,000
Virginians disenfranchised by Art. II, § 1, approximately 243,000 of them
are African American. In aggregate percentages, this means while Virginia
disenfranchises 7.34% of its total voting age population, it disenfranchises
20.37% of its African American voting age population. Ex. A, at 4. Nearly
189,000 of those disenfranchised black voters (78%) have fully satisfied
their sentences and are no longer on parole or probation. Id. In most
states, those voters would have automatically regained their right to vote at
the completion of their sentence. Jean Chung, Felony Disenfranchisement:
A Primer, THE SENTENCING PROJECT, May 10, 2016, at 1.
Virginia’s felony disenfranchisement rates put the state wildly out of
the national mainstream. The national average rate of disenfranchisement
based on felony convictions is only 2.5%, while it is 7.3% in Virginia.
Moreover, nationally, 7.7% of African Americans are disenfranchised, while
in Virginia, as discussed above, over 20% of African Americans are
31
disenfranchised. Bradford, Virginia’s Justice System, supra, at 13. This
disparity directly wrought by the state’s constitution is also an indirect result
of the problems in the state’s criminal justice system.
People of color are overrepresented at every stage of involvement in
Virginia’s criminal justice system. Id. at 1. And by design and practice, the
Commonwealth’s criminal justice system is not designed to minimize the
collateral consequences of felony convictions, especially on African
Americans. Instead, recent “tough on crime” policies only exacerbate the
harm wrought by Virginia’s felony disenfranchisement provision.
For
example, even though the violent offense arrest rate has dropped 11.1%
from 2002 to 2011, the drug offense arrest rate has increased 31.5% over
the same period. Id. at 3. In 2011, African Americans, less than 20% of
the state population, represented 44% of all drug arrests in the
Commonwealth. Id. at 11. But research demonstrates that drug use by
African Americans is typically lower than that by whites, highlighting the
injustice in African American overrepresentation amongst drug arrests. Id.
at 12.
Nor is this increase in incarceration a recent trend—between 1982
and 2007, the Commonwealth’s incarceration rate increased by 205%. Id.
at 7. Indeed, in 2011, Virginia ranked 43rd and 46th for state property crime
32
and violent crime rates, but ranked 13th for federal and state incarceration
rates.
Id. at 2.
incarceration
and
This disparity indicates a serious problem with mass
over-criminalization,
a
problem disproportionately
experienced by people of color. Id. at 6, 9, 11.
One particularly problematic aspect of Virginia’s criminal offense
categorization system is the Commonwealth’s grand larceny threshold.
Currently, if a criminal offense involves theft or fraud of anything valued at
more than $200, the crime is categorized as grand larceny—a felony, not a
misdemeanor. That statutory threshold has not been changed since 1980.
Only two states, Virginia and New Jersey, have such a low threshold. Id. at
10. This low bar for felony offenses contributes heavily to the huge number
of Virginians disenfranchised under Art. II, Sec. 1.
The criminal justice system, though, is not the only source of the
disproportionate and arbitrary effects of felony disenfranchisement
provisions. The rights restoration process itself is problematic. Data from
Virginia and other states where individuals with felony convictions are only
able to restore their right to vote after petitioning the governor or another
authorized entity demonstrates that such confusing, time-consuming
processes are frequently unsuccessful and enormously arbitrary.
Marc
Mauer & Tushar Kansal, Barred for Life: Voting Rights Restoration In
33
Permanent
Disenfranchisement
States,
THE
SENTENCING
PROJECT,
February 2005, at 1-2. In Virginia, specifically, data on the number of rights
restorations granted indicates a high level of arbitrariness in the process,
depending on who sits in the governor’s office.
For example, the
administration of Governor Jim Gilmore averaged only 60 restoration
approvals per year during his 1998 to 2002 term, while from 2002 to 2005,
Governor Mark Warner averaged 685 restoration approvals per year. Id. at
21. The process of restoration is also slow where, as in Virginia, there is a
waiting period for certain restoration petitions, and applicants themselves
must track their eligibility.
From 1982 to 2004, there were only 5,043 civil
rights restorations granted, out of an estimated 243,902 Virginians
disenfranchised because of felony convictions. Id. at 20. Furthermore, a
Florida study indicated that of the approximately 8400 Floridians granted a
restoration of civil rights from 1997 to 2001, only 25% were African
American, despite African Americans being overrepresented amongst the
disenfranchised in that state as well.
Modern-Day
Literacy
Test:
Felon
Daniel S. Goldman, Note: The
Disenfranchisement
and
Race
Discrimination, 57 STAN. L. REV. 611, 638 (2004). Thus, not only does
Virginia’s felony disenfranchisement law disproportionately harm people of
34
color, but the process in place before the Governor’s executive action did
so as well, further cementing the need for his action.
Finally, it is important to recognize that felony disenfranchisement not
only punishes individuals—individuals who have paid their debts to society
and reentered the free world—it also punishes their communities.
These
communities, largely communities of color, already bear the brunt of the
racially discriminatory criminal laws enacted via a political system in which
they do not get to participate. In these communities, political participation
is itself a cure to the problem, because exercise of the franchise has been
linked with lower recidivism rates.
Christopher Uggen, Jeff Manza, &
Melissa Thompson, Citizenship, Democracy, and the Civic Reintegration of
Criminal Offenders, 605 ANNALS AM. ACAD. POL. & SOC. SCI. 281, 303-04
(2006). With its strict and unforgiving felony disenfranchisement laws, the
Commonwealth and its citizens find themselves in a vicious cycle, and the
Governor’s executive order acted to move Virginia in line with the rest of
the nation in breaking that cycle.
CONCLUSION
For all the foregoing reasons, Amicus respectfully requests that this
Court deny Petitioner’s petition for writs of mandamus and prohibition.
35
Dated: June 27, 2016
Respectfully Submitted,
__/s/__David O. Prince___
David O. Prince, Esqire
VSB# 17044
411 East Franklin Street
Richmond, VA 23219
804-788-4861
[email protected]
Allison J. Riggs*
Southern Coalition for Social
Justice
1415 W. Highway 54, Ste. 101
Durham, NC 27707
919-323-3909
[email protected]
*Pro Hac Vice Application Pending
Counsel for Amicus Curiae
36
CERTIFICATE OF SERVICE
I certify that on June 27, 216, the foregoing BRIEF OF THE
VIRGINIA STATE CONFERENCE OF THE NAACP AS AMICUS CURIAE
IN SUPPORT OF RESPONDENTS was filed with the Clerk of Court via
VACES, and I hereby certify that I served this document via electronic mail
upon all counsel of record listed below.
__/s/__David O. Prince__
David O. Prince, Esquire
VSB# 17044
Counsel for Amicus Curiae
Charles J. Cooper
Michael W. Kirk
[email protected]
William C. Marra
Haley N. Proctor
COOPER & KIRK, PLLC
1523 New Hampshire Avenue, N.W.
Washington, D.C. 20036
Mark R. Herring
Stuart A. Raphael
[email protected]
Trevor S. Cox
Rhodes B. Ritenour
Anna T. Birkenheier
Matthew R. McGuire
OFFICE OF THE ATTORNEY GENERAL
202 North Ninth Street
Richmond, VA 23219
37
Allison Riggs
From:
Sent:
To:
Cc:
Subject:
Michael W. Kirk <[email protected]>
Thursday, June 23, 2016 4:18 PM
Raphael, Stuart A.; Allison Riggs
[email protected]; Anita Earls; Cox, Trevor S.
RE: Howell et al. v. McAuliffe et al. - Parties' Consent - VA NAACP Amicus Brief in
Support of Respondents
Ms. Riggs –
Petitioners consent as well.
Best,
Michael Kirk
From: Raphael, Stuart A. [mailto:[email protected]]
Sent: Thursday, June 23, 2016 4:18 PM
To: Allison Riggs; Michael W. Kirk
Cc: [email protected]; Anita Earls; Cox, Trevor S.
Subject: RE: Howell et al. v. McAuliffe et al. - Parties' Consent - VA NAACP Amicus Brief in Support of Respondents
Respondents consent.
Best regards,
Stuart Raphael
Solicitor General
From: Allison Riggs [[email protected]]
Sent: Thursday, June 23, 2016 4:02 PM
To: Raphael, Stuart A.; [email protected]
Cc: [email protected]; Anita Earls
Subject: Howell et al. v. McAuliffe et al. - Parties' Consent - VA NAACP Amicus Brief in Support of Respondents
Counsel, Along with David O. Prince of the Virginia Bar, I represent the Virginia State Conference of NAACP Branches. I’m writing to seek your clients’ consent to the filing of an amicus brief by the Virginia NAACP on behalf of Respondents in Howell v. McAuliffe. We will abide by all the relevant deadlines—filing and serving the brief on all counsel by 5 PM on 6/27. Thank you for your consideration, and please don’t hesitate to let me know if you have any questions. Sincerely, Allison Riggs Senior Attorney Southern Coalition for Social Justice 1415 West Highway 54, Ste. 101 Durham, NC 27707 1
919‐323‐3380 ext. 117 919‐323‐3942 (fax) [email protected] CONFIDENTIAL & PRIVILEGED This communication is intended solely for the addressee. Any unauthorized review, use, disclosure or distribution is prohibited. If you believe this message has been sent to you in error, please notify the sender by replying to this transmission and delete the message without disclosing it. Thank you. This electronic communication may contain confidential or privileged information for an intended recipient. If you are not
the intended recipient or received this email in error, please notify the sender immediately by return email and delete this
email without disclosing, duplicating or otherwise transmitting the contents, including all attachments.
2
Allison Riggs
From:
Sent:
To:
Cc:
Subject:
Raphael, Stuart A. <[email protected]>
Thursday, June 23, 2016 4:18 PM
Allison Riggs; [email protected]
[email protected]; Anita Earls; Cox, Trevor S.
RE: Howell et al. v. McAuliffe et al. - Parties' Consent - VA NAACP Amicus Brief in
Support of Respondents
Respondents consent.
Best regards,
Stuart Raphael
Solicitor General
From: Allison Riggs [[email protected]]
Sent: Thursday, June 23, 2016 4:02 PM
To: Raphael, Stuart A.; [email protected]
Cc: [email protected]; Anita Earls
Subject: Howell et al. v. McAuliffe et al. - Parties' Consent - VA NAACP Amicus Brief in Support of Respondents
Counsel, Along with David O. Prince of the Virginia Bar, I represent the Virginia State Conference of NAACP Branches. I’m writing to seek your clients’ consent to the filing of an amicus brief by the Virginia NAACP on behalf of Respondents in Howell v. McAuliffe. We will abide by all the relevant deadlines—filing and serving the brief on all counsel by 5 PM on 6/27. Thank you for your consideration, and please don’t hesitate to let me know if you have any questions. Sincerely, Allison Riggs Senior Attorney Southern Coalition for Social Justice 1415 West Highway 54, Ste. 101 Durham, NC 27707 919‐323‐3380 ext. 117 919‐323‐3942 (fax) [email protected] CONFIDENTIAL & PRIVILEGED This communication is intended solely for the addressee. Any unauthorized review, use, disclosure or distribution is prohibited. If you believe this message has been sent to you in error, please notify the sender by replying to this transmission and delete the message without disclosing it. Thank you. This electronic communication may contain confidential or privileged information for an intended recipient. If you are not
1
the intended recipient or received this email in error, please notify the sender immediately by return email and delete this
email without disclosing, duplicating or otherwise transmitting the contents, including all attachments.
2
Exhibit A
SILENCED in VIRGINIA:
Citizens Without a Vote
This examination of the enduring and far-reaching impact of felony
disenfranchisement in Virginia – the practice of stripping American Citizens of
their right to vote – is one in a series produced by the Voting Rights Initiative of
the National Association for the Advancement of Colored People. The series
includes a national overview and state-level examinations of felony
disenfranchisement in Florida, North Carolina, Kentucky, and Iowa.
National Association for the Advancement of Colored People
4805 Mt. Hope Drive, Baltimore MD 21215
SILENCED:
Citizens Without a Voice
VIRGINIA
Fall, 2012
OVERVIEW
Firmly rooted in the nation’s most insidious elements of race relations, felony
disenfranchisement is this country’s enduring nod to Jim Crow— a continued
bridge between states intentional circumvention of the Thirteenth,
Fourteenth, and Fifteenth Amendments and the goal of preventing accrual of
political power in the black community.
Part and parcel to its rapid expansion, were changes to criminal codes that
facilitated disenfranchisement for petty offenses such as larceny and
miscegenation while exempting offenses – such as murder – believed to be
most often committed by white men.
National
Association for
the Advancement
of Colored People
4805 Mt. Hope Drive
Baltimore, MD
21215
With more than 5.8 million citizens unable to vote as a result of a felony
conviction amounting to one out of every 40 adults,i the United States is the
only democratic nation recognized for stripping so many people of their
voting rights even after they are no longer incarcerated.
Seventy-five percent of the nation’s disenfranchised – an estimated 4.3 million
people – are no longer incarcerated. ii As a result, the returning citizen
population includes many individuals who are parents, workers, neighbors,
and taxpayers, forced to live in the margins of democracy despite practicing
responsible citizenship.
HISTORY
The Virginia constitution not only contains the Commonwealth’s felony
disenfranchisement scheme it also gives the governor the sole power to
restore voting rights. Article II, Section I of the constitution states: "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."
The precursor to the language of Article II, Section I is the fact that Virginia
has permitted disenfranchisement as a result of a criminal offense since at
least the 1830s.iii The existence of felony disenfranchisement in Virginia –
though far narrower than the disenfranchisement scheme that subsequently
emerged and which we see today – so far in advance of the Reconstruction
www.restorethevotes.org
Era enabled decision-makers to imbed permanent disenfranchisement into the constitution.
Since felony disenfranchisement first emerged in the Virginia constitution, the document has
undergone several substantive amendments including the amendments of 1851, 1870, 1902,
and 1971.iv
The ‘Black Codes’ emerged in Virginia in 1868 just as the nation was struggling with efforts
to shed itself of slavery and the social constructs it produced. Virginia on the other hand, like
many Southern states, wanted to preserve the status quo after slavery was abolished in
1865. In particular, once freedmen were granted citizenship in 1868 through the Fourteenth
Amendment and later granted a clearer path to the ballot box in 1870 via the Fifteenth
Amendment Virginia took bold steps to prevent the accrual of political power in the black
community.
With ‘Black Codes’ in full effect and freedmen rapidly and effectively exercising their newly
acquired right of suffrage throughout the south, Virginia held a Constitutional Convention in
1901-1902. During that convention, Virginia’s thought leaders adopted an elaborate, multifaceted plan to thwart accrual of political power outside the white community and in
particular, beyond white men.v Among other approaches, the plan included broad-based
felony disenfranchisement grounded in the expanded list of criminal offenses that had
emerged alongside the Black Codes. Reflective of the open trepidation and resistance of the
white community to shared suffrage with freedmen, a delegate to the convention famously
described Virginia’s plan to thwart the black vote as follows:
“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.” vi
Within short order of implementing the changes that were developed during the 1901-1902
Constitutional Convention, Virginia’s plan to circumvent the combined promises of the
Fourteenth and Fifteenth Amendments had worked. Within 90 days more than 125,000 of
the 147,000 black voters in the Commonwealth had been removed from the rolls.vii
While the Virginia constitution vests the governor with the sole authority to restore civil
liberties, unlike other permanent disenfranchisement states – such as Florida and Iowa – no
Virginia governor has issued an Executive Order granting automatic restoration of rights.
Various scholars and leading law firms however, have conducted research into the
governor’s authority to issue such an order and have concluded that issuing an Executive
Order granting automatic restoration of voting rights is well within the governor’s
authority.viii
www.naacp.org
IMPACT
Voting rights cannot be regained in Virginia absent the governor restoring
civil liberties, which requires an application. Submission of an application
alone does not guarantee rights will be restored. Moreover, if an
application requesting restoration of voting rights is rejected, the governor
need not provide an explanation for the decision. As a result, despite
efforts by various governors to streamline the application process,
Virginia’s population of disenfranchised citizens continues to grow.


One hundred and ten years after taking on a new breadth and scope
on the heels of citizenship and the right of suffrage for freedmen,
Virginia’s felony disenfranchisement scheme strips more than
450,000 citizens of their ability to vote.ix
Nearly 352,000 of these individuals are no longer incarcerated.
Rather, they are living in the community having fully completed all
the terms of their sentence.x
While Virginia strips
more than 450,000
citizens of their voting
rights, nearly 352,000
of these citizens are
not incarcerated but
instead, are members
of the community.
True to the purpose of its race-based expansion in the early 1900’s, today
Virginia’s felony disenfranchisement scheme wields its greatest impact
against the Commonwealth’s black voters.



Included in Virginia’s more than 450,000 disenfranchised are an
estimated 242,958 African Americans.xi
As a result, while Virginia disenfranchises 7.34 percent of its entire
voting-age population, it disenfranchises 20.37 percent of all votingeligible black residents.xii
Additionally, nearly 189,000 of all disenfranchised black voters in
Virginia have completed all the terms of their sentence.xiii An
additional 31,000 individuals are functioning in society as members
of the Virginia community.xiv
The existing governor has been recognized for his commitment to
reviewing voting rights restoration applications in a timely fashion. While
good news for those submitting applications – as applications can languish
-- his commitment to reviewing applications in a timely fashion will do little
to resolve the race-based disparities inherent in Virginia’s felony
disenfranchisement scheme as calculation suggests that he would have to
review one application every hour, for 24 hours every day of the year, for a
period of 51 years to restore rights to every disenfranchised Virginian.
Nearly 78% of all black
voters who have been
stripped of their
voting rights have
completed all the
terms of their
sentence.
www.restorethevotes.org
Felony Disenfranchisement: At-A-Glance
Nationally, 1 out of every 13 voting-eligible
African-Americans has been stripped of their
voting rights.
In FL, KY, and VA more than one in five
African Americans have been stripped of their
voting rights, amounting to more than 20 percent
of their adult voting-age population.
Virginia deprives more than 451 thousand
citizens of their right to vote. Nearly
352,000 have returned to the community,
including nearly 189,000 black would-be
voters. While Virginia strips 7.34 percent
of all citizens of their voting rights, the
impact on black voters is far greater:
20.37 percent.
Disenfranchised
Post-Sentence
African-American
Incarcerated
Virginia Total
0
100
200
300
400
www.naacp.org
500
SOLUTIONS

Immediate First Steps. Promote messaging which realigns Virginia with the American values of
redemption, rehabilitation and responsible citizenship through Executive Order or legislative
initiatives granting automatic restoration of voting rights to all persons who, while having been
convicted of a felony-level offense, are no longer incarcerated.
Ensure unfettered reenfranchisement by ensuring the Order eliminates the need for formal application to the clemency
board or any other governing or decision-making agency, before rights can be restored. Rather,
require all detention facilities as well as post-release supervisory agencies to inform returning
citizens that their right to vote has been automatically restored.

Institutionalize American Values. Permanently align the state with the American values of
redemption, rehabilitation and responsible citizenship by abolishing the state’s felony
disenfranchisement scheme altogether.
COMMUNITY ACTION STEPS




Promote Proactive Change. Use mass public education to spotlight the impact felony
disenfranchisement has on voting-eligible Floridians. Emphasize the fact that most of Florida’s
disenfranchised voters are community residents.
Understand the Options. Abolishing felony disenfranchisement can be challenging because it is
often written into the state constitution. In addition to understanding your legislative process, you
may also have to learn about the various options for amending the constitution as set forth in the
Virginia constitution.
Identify Likely and Unlikely Allies. Stripping individuals convicted of a felony-level offense of their
voting rights negatively impacts the formerly convicted, their families, the communities they call
home, and the nation’s image as a true democracy. This means the base of people that may stand
with you in opposition to felony disenfranchisement can be diverse.
Send a Clear and Succinct Message. Let the Governor, state legislators, and the public know
community supports full citizenship for everyone. Use online petitions, email, fax, phone, and inperson campaigns to make your position clear. Host town hall meetings and other forums to shed
light on community’s support for full citizenship for all people – invite public officials to attend.
SAMPLE RESOURCES and REFERENCES



Uggen, Christopher and Shannon, Sarah (University of Minnesota), and Manza, Jeff (New York
University) (2012), State-Level Estimates of Felon Disenfranchisement in the United States, 2010
Sentencing Project (2012), Felony Disenfranchisement: An Annotated Bibliography
Office of the Secretary of the Commonwealth, Restoration of Rights (available at:
http://www.commonwealth.virginia.gov/JudicialSystem/Clemency/restoration.cfm).
www.restorethevotes.org
References
i
Uggen, C. and Shannon S. (University of Minnesota) & Manza J. (New York University) for The Sentencing Project, State-level
Estimates of Felon Disenfranchisement in the United States, 2010 at 1 (July 2012).
ii
Id. at 5.
iii
Behrens, A., Uggen, C., & Manza J., Ballot Manipulation and the “Menace of Negro Domination”: Racial Threat and Felon
Disenfranchisement in the United States, 1850-2002, American Journal of Sociology, 109(3), 559-605 at 565 (2003).
iv
See e.g. report of Jamerson, B., Virginia Constitution, Effective July 1, 1971 with Amendments January 1, 2011, Clerks Office,
House of Delegates (January 2011) (available at: http://legis.state.va.us/Laws/search/constofva.pdf).
v
As in many other southern states, this plan included literacy tests and poll taxes. For more information see: Virginia Historical
Society, The Civil Rights Movement in Virginia (available at: http://www.vahistorical.org/civilrights/vote.htm).
vi
Delegate Carter Glass, Virginia Constitutional Convention (1901-1902).
vii
Id.
viii
See e.g., Hogan and Hartson LLP memorandum re Virginia Restoration of Voting Rights (2005) (available at:
http://www.advancementproject.org/digital-library/publications/hogan-hartson-memo-on-virginia-restoration-of-voting-rights).
ix
Uggen, C., Shannon, S., & Manza J. at 16.
x
Id.
xi
Id. at 17.
xii
Id. at 17.
xiii
Id. at 17.
xiv
Id. at 17.
Exhibit B
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An estimated 450,000 citizens in Virginia are barred from exercising their right to
vote due to a felony conviction.
Virginia is one of only four states that permanently disenfranchise every
individual with a felony conviction, leaving it to the Governor to decide whose
right to vote will be restored. Thirty-eight states restore voting rights to all former
felons upon completion of incarceration, parole or probation. Eight restore rights
to most former felons, requiring either a waiting period or excluding only those
who have committed the most offensive crimes. Two states—Maine and
Vermont—never remove voting rights.
The vast majority of disenfranchised persons in Virginia and the U.S. are no
longer incarcerated and are tax-paying citizens with jobs and families, who are
involved in their communities. At least two-thirds have fully completed their
sentences, including probation and parole.
disenfranchisement law is
more restrictive than 46
other states.
An estimated 450,000
Virginia residents are
disenfranchised.
The majority of Virginia’s
disenfranchised persons
have completed their
sentences and are members
of our communities.
In Virginia, one in five
African-Americans cannot
vote due to felon
disenfranchisement.
The national trend in recent years has been to lower barriers for the
disenfranchised. Since 1997, 23 states have modernized their felony
disfranchisement laws. Virginia is not one of them.
Virginia’s felon
Virginia’s Disfranchisement Law
Racial Impact
Voting and Public Safety
In Virginia, individuals with felony
convictions are permanently barred
from voting, even after fully completing
their sentence. Only an act of the
Governor can restore an individual’s
voting rights. This is mandated by the
Constitution of Virginia.
The impact of disenfranchisement falls
disproportionately upon communities
of color. African-Americans make up
more than 50% of the state’s
disenfranchised population, despite
being only 20% of the total population.
Research shows that individuals who
vote after completing their sentences
are half as likely to commit another
crime as those who do not vote.
Although there is a procedure that
allows former felons to apply for
restoration of voting rights, the process
is complicated and intimidating—and
there is no guarantee the Governor will
act.
Who is disfranchised regionally?
Virginia’s disenfranchisement law is
not only out of step with the nation, but
also with every neighboring jurisdiction
except Kentucky, the only other state
as restrictive as Virginia. In the District
of Columbia, voting rights are restored
automatically after incarceration. In
North Carolina, West Virginia and
Maryland, individuals may vote after
completing all phases of their
sentences.
In Virginia, one in five AfricanAmerican adults is disenfranchised.
This means more than 200,000
African-Americans cannot vote. Only
Florida has a higher number of
disenfranchised African-Americans.
However, recent reforms to the Florida
law will leave Virginia with the highest
number of disenfranchised minorities
in the nation within a few years.
The effect on African-American men is
even more profound: one in four is
barred from voting in Virginia.
Voting demonstrates a commitment to
our democracy and an interest in state
and community affairs. For former
felons, it is one of the ways in which
they can become engaged and
invested in our society, thus aiding
their full reintegration into society.
Who Supports Reform?
Five major newspapers in Virginia
support reform of Virginia’s felon
disenfranchisement law. They are
joined by prominent religious leaders
and faith-based organizations, as well
as community and civic organizations
from across the state. A majority of the
Virginia Senate has consistently voted
to amend the Virginia Constitution to
end felon disenfranchisement.
Additionally, Governor McDonnell and
Attorney General Cuccinelli voiced
support for the automatic restoration of
voting rights of nonviolent felons. VIRGINIANS FOR RESTORATION OF VOTING RIGHTS